Court No. - 34
Case :- WRIT - A No. - 59961 of 2014
Petitioner :- Vijay Kumar Khurana
Respondent :- State Of U.P. And 2 Ors
Counsel for Petitioner :- A. Kumar Singh,Pratibha Chauhan
Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Ifaqat Ali Khan,J.
1. This writ petition has been filed against order dated 14.10.2014 passed by Sri Mahesh Kumar Gupta, Principal Secretary, Small Industries and Export Promotion Deptt., Civil Secretariat, Lucknow- respondent-1 rejecting representation of petitioner.
2. Petitioner are claiming retiral benefits comprising of final pension, gratuity which has been deferred by respondents since criminal case registered u/s 420, 467, 468, 471, 120B IPC read with Section 13(2) of Prevention of Corruption Act, 1988 is pending against him. However, provisional pension and leave encashment has already been paid.
3. Only question up for consideration in this writ petition is "whether during pendency of criminal case, gratuity can be withheld or not".
4. This question has been settled by a Division Bench of this Court in State of U.P. and others Vs. Jai Prakash 2014 (1) ESC 511 (All) and relevant observations in Para 9, 10, 11 and 12 are reproduced as under:-
"9. In a judgment of a Division Bench of this Court in Shri Pal Vaish v. U.P. Power Corporation Limited and another, 2009 (9) ADJ 45 (DB), 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 judgment of the Supreme Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another, JT 2013 (11) SC 351, 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.
12. In view of the above, we allow the appeal and set aside the impugned order of the learned Single Judge dated 10 May 2013. In consequence, the petition which has been filed under Article 226 of the Constitution shall stand dismissed. There shall be no order as to costs."
5. We are also informed that against judgment of Division Bench, Special Leave to Appeal (Civil) No. 6447 of 2014 was filed before Supreme Court and same was dismissed vide order dated 02.02.2015 by passing following order:-
"Heard learned counsel for the parties.
We find no merit in the special leave petition.
The special leave petition is dismissed accordingly."
6. In view of above law laid down by this Court, we find no manifest error in the impugned order passed by Principal Secretary.
7. Writ petition lacks merit and is accordingly dismissed.
Order Date :- 30.5.2018 Siddhant Sahu