Court No. - 30
Case :- WRIT - A No. - 40557 of 2013 Petitioner :- Suresh Chand Sharma Respondent :- State Of U.P.& 4 Ors.
Counsel for Petitioner :- Saurabh Tiwari,Balbeer Singh Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as Ms. Shivi Mishra, learned Standing Counsel appearing for the State respondents and perused the record.
Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself.
Present petition has been filed challenging the impugned order dated 1.4.2011 passed by the respondent no. 2. A further prayer has been made to direct to the respondent authorities to release the withheld gratuity amount payable to the petitioner without any delay.
By the impugned order, the gratuity amount payable to the petitioner after his retirement has been withheld by an order passed by the respondent no. 2 on the ground that a criminal case is pending against the petitioner.
Submission of the learned counsel for the petitioner is that the petitioner is not responsible/liable for such withdrawal of retiral dues of late Ram Kripal by one Smt. Vidyawati and the only allegation against the petitioner is that he has verified the service record of late Ram Kripal for the period from 1.1.2006 to 15.8.2006 and there is no allegation of making false entries in the service record. It was further submitted that the documents were forwarded by some other person by one Virendra Singh Chauhan and not by the petitioner. The petitioner has retired from the post of Sub-Inspector (Ministerial) after attaining the age of superannuation on 20.4.2011 and although by order dated 1.4.2011 the pension and post retiral dues of the petitioner have been sanctioned, however the gratuity amount has been withheld by the authority concerned. He lastly submits that the amount of gratuity cannot be withheld by the respondent authority and is liable to be released in favour of the petitioner. In support of his submissions, he has placed reliance on a judgement and order of learned Single Judge dated 30.8.2012 passed in Service Single No. 582 of 2010 (Ram Pal vs. State of UP and others).
Per contra, Ms. Shivi Mishra, learned Standing Counsel appearing for the State respondents has supported the impugned order and submitted that the criminal proceedings are pending against the petitioner and a charge-sheet has been submitted against him wherein in investigation it was found that fraud was outcome of collusion of the petitioner with Smt. Vidyawati and that the allegations against Virendra Singh Chauhan are little different in nature. Submission is that in any case criminal proceedings are pending and therefore, gratuity amount can be withheld.
I have considered the rival submissions and perused the record.
Identical question, as to whether during pendency of criminal proceedings full pensionary benefits can be released in favour of the petitioner or not has been considered by me in the case of Narendra Pratap Singh vs. State of UP, 2015 (1) AWC 300; 2015 (11) ADJ 237 wherein the provisions of Civil Service Regulations 351, 351-AA and 919-A and the case of State of Jharkhand vs. Jitendra Kumar Srivastava was also considered and it was held that in State of UP during pendency of criminal proceedings, respondents are entitled to withheld pensionary benefits. Regulation 919-A(3) of Civil Service Regulation clearly provides as under:
"919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(2) The provisional pension shall be authorised for the period commencing from the date of retirement up to and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority.
(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon."
Paragraphs 17 and 18 of Narendra Pratap Singh's case (supra) is also quoted as under:
"17. Hon. Division Bench while observing in para 8 that the expression 'judicial proceeding' would necessarily include the pendency of a criminal case. Paragraphs 9, 10 and 11 of the aforesaid judgement are quoted herein below:-
9. In a judgement of a Division Bench of this Court in Shri Pal Vaish vs.
U.P. Power Corporation Limited and another1, it has been held that clause 3 of regulation 919-A is a provision which specifically deals with the payment of gratuity during pendency of departmental or judicial proceedings and in view thereof, the payment of gratuity has to be deferred until the conclusion of such a proceeding. The Division Bench also held that the payment of gratuity cannot be made in view of the bar contained in regulation 919-A during the pendency of a criminal case.
10. In a recent judgement of the Supreme Court in State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr2, the Supreme Court dealt with the provisions of Rule 43 (b) of the Pension Rules of the State of Bihar as applicable to the State of Jharkhand. Regulation 43(b) was pari materia to regulation 351-A of the Civil Service Regulations in the State of U.P. In that context, the Supreme Court held that Rule 43(b) made it clear that it was permissible for the Government to withhold pension only when a finding is recorded in a departmental inquiry or judicial proceeding in regard to the commission of misconduct while in service and rule 43(b) contains no provision for withholding gratuity when departmental or judicial proceedings are still pending. However, the Supreme Court clarified that though there was no provision for withholding pension or gratuity in the given situation, had there been any such provision in the rules, the position would have been different. In the present case, there is a specific provision contained in regulation 351-AA read with regulation 919-A(3).
11. In the circumstances, we are of the view that the order passed by the Superintendent of Police, Etah withholding the payment of gratuity until the conclusion of the criminal trial was correct and proper and was in accordance with the provisions of regulation 351-AA read with regulation 919-A (3). The respondent would however be entitled to the payment of provisional pension as contemplated in law.
18. It is clear that Hon'ble Division Bench of this court has clearly taken into consideration the case of State of Jharkhand (supra) relied upon by the counsel for the petitioner and clearly observed that in present case there is a specific provision contained in Regulation 351-AA read with Regulation 919-A(3) of Civil Service Regulation and thus held that in that case the order passed by S.S.P. Etah withholding the gratuity was correct and proper and was in accordance with the provisions of Regulation 351- AA read with 919-A(3)."
In such view of the matter, I do not find any legal infirmity in the order impugned.
Present petition lacks merit and is accordingly dismissed. There shall be no order as to costs.
Order Date :- 26.2.2018 Abhishek