Friday, 26 June 2020

Whether government servant or judicial officer can be denied pension if judicial proceeding is pending against him?

The petitioner retired on 31.12.2007 as District Judge. At the time of retirement no disciplinary action was pending against him On 5.2.2008, subsequent to his retirement a First Information Report was lodged at Police Station Kavi Nagar, Ghaziabad under Sections 409, 420, 467, 468, 471, 477-A, 120-B IPC and Section 13(1) and 13(2) of the Prevention of Corruption Act which was registered at Case Crime No. 152 of 2008. In view of the aforesaid criminal case only 90% of his gratuity amounting to Rs. 3.15 lacs out of total Rs. 3.5 lacs was released in his favour on 6.1.2012 on completion of necessary formalities.
2. The Government Order dated 4th November, 2010, issued on the basis of the Justice E. Padmanabhan Committee report dated 17.7.2009 which was accepted by the Supreme Court vide its orders dated 19.7.2010, 29.7.2010 and 2.8.2010 the State Government provided that all judicial officers retiring on 1.1.2006 or thereafter would be entitle to gratuity/death cum retirement gratuity of Rs. 10 lacs.


3. The petitioner had retired on 31.12.2007 and, as such, became entitled to gratuity of Rs. 10 lacs as per the aforesaid Government Order in place of Rs. 3.50 lacs.


8. It is settled in law that payment of post retirement dues including gratuity are not bounty and that they cannot be withheld unless the rules provide for it. In other words, in the absence of any rules permitting withholding of post retiral dues including gratuity, the Government cannot withhold the same.

9. Learned counsel for the respondent Nos. 1 and 2 is unable to place before us any rule or statutory provision permitting withholding of post retiral dues due to pendency of a criminal case.

10. Civil Services Regulations vide Regulation 919-A(3) provides that no death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.

12. A simple reading of the aforesaid provision reveals that the bar on payment of death-cum-retirement gratuity is until the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal. This bar is not applicable where a criminal case is pending as it is not a departmental proceeding or an enquiry by the Administrative Tribunal.

13. In the case at hand, there is no departmental proceedings or any enquiry by the Administrative Tribunal pending against the petitioner. The petitioner is only facing criminal proceedings and there is certainly no provision which puts a rider on the payment of death-cum-gratuity to a Government servant or a judicial officer merely for the reason that criminal proceedings are pending against him.

14. A Division Bench of this Court in State of U.P. and three others v. Faini Singh (Special Appeal No. 416 of 2014 decided on 25.4.2014) while considering the provisions of Regulation 919-A(3) of Civil Services Regulations observed that the power of withholding or withdrawing pension is to be used in cases where allegations are of serious nature or grave misconduct and of causing pecuniary loss and it cannot be exercised mechanically merely on the pendency of any judicial proceedings without considering the allegations against the retired Government servant. In other words, pendency of even judicial proceedings has not been recognized as a matter of right to withhold the pension.


15. In Bangali Bahu Misra v. State of U.P., MANU/UP/1042/2002 : 2003(3) AWC 1760, a Division Bench of this Court seized of a similar controversy held that in the absence of any provision under law even if the petitioner is subjected to punishment in criminal proceedings that would not be a ground for withholding the post retiral benefits admissible to him.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 937 of 2013

Decided On: 23.10.2017

 Radhey Shyam Chaubey  Vs.  High Court of Judicature and Ors.

Hon'ble Judges/Coram:
Pankaj Mithal and Irshad Ali, JJ.

Citation: 2018 (3) AWC 2521.

1. The petitioner retired on 31.12.2007 as District Judge. At the time of retirement no disciplinary action was pending against him On 5.2.2008, subsequent to his retirement a First Information Report was lodged at Police Station Kavi Nagar, Ghaziabad under Sections 409, 420, 467, 468, 471, 477-A, 120-B IPC and Section 13(1) and 13(2) of the Prevention of Corruption Act which was registered at Case Crime No. 152 of 2008. In view of the aforesaid criminal case only 90% of his gratuity amounting to Rs. 3.15 lacs out of total Rs. 3.5 lacs was released in his favour on 6.1.2012 on completion of necessary formalities.

2. The Government Order dated 4th November, 2010, issued on the basis of the Justice E. Padmanabhan Committee report dated 17.7.2009 which was accepted by the Supreme Court vide its orders dated 19.7.2010, 29.7.2010 and 2.8.2010 the State Government provided that all judicial officers retiring on 1.1.2006 or thereafter would be entitle to gratuity/death cum retirement gratuity of Rs. 10 lacs.

3. The petitioner had retired on 31.12.2007 and, as such, became entitled to gratuity of Rs. 10 lacs as per the aforesaid Government Order in place of Rs. 3.50 lacs.

4. Since there was already an order for payment of 90% of the gratuity pending the criminal case, the petitioner represented that he may be paid 90% of the enhanced gratuity.

5. The request of the petitioner to this effect has not been accepted vide communication dated 6.9.2012 and 13.12.2012 and the petitioner has been informed to wait for the decision of the criminal case pending against him.

6. The argument of Sri Ratnesh Kumar Pandey, learned counsel for the petitioner is that mere pendency of a criminal case is no ground for withholding gratuity or for not releasing 90% of the enhanced gratuity.

7. Learned counsel for the respondent Nos. 1 and 2 argued that since the criminal case in which the petitioner is involved relates to money laundering and has financial implications, it is not in the fitness of the things to release any further amount of gratuity in favour of the petitioner.

8. It is settled in law that payment of post retirement dues including gratuity are not bounty and that they cannot be withheld unless the rules provide for it. In other words, in the absence of any rules permitting withholding of post retiral dues including gratuity, the Government cannot withhold the same.

9. Learned counsel for the respondent Nos. 1 and 2 is unable to place before us any rule or statutory provision permitting withholding of post retiral dues due to pendency of a criminal case.

10. Civil Services Regulations vide Regulation 919-A(3) provides that no death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.

11. The aforesaid regulation is reproduced herein below:

"919-A (1)....

(2)....

(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon."

12. A simple reading of the aforesaid provision reveals that the bar on payment of death-cum-retirement gratuity is until the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal. This bar is not applicable where a criminal case is pending as it is not a departmental proceeding or an enquiry by the Administrative Tribunal.

13. In the case at hand, there is no departmental proceedings or any enquiry by the Administrative Tribunal pending against the petitioner. The petitioner is only facing criminal proceedings and there is certainly no provision which puts a rider on the payment of death-cum-gratuity to a Government servant or a judicial officer merely for the reason that criminal proceedings are pending against him.

14. A Division Bench of this Court in State of U.P. and three others v. Faini Singh (Special Appeal No. 416 of 2014 decided on 25.4.2014) while considering the provisions of Regulation 919-A(3) of Civil Services Regulations observed that the power of withholding or withdrawing pension is to be used in cases where allegations are of serious nature or grave misconduct and of causing pecuniary loss and it cannot be exercised mechanically merely on the pendency of any judicial proceedings without considering the allegations against the retired Government servant. In other words, pendency of even judicial proceedings has not been recognized as a matter of right to withhold the pension.

15. In Bangali Bahu Misra v. State of U.P., MANU/UP/1042/2002 : 2003(3) AWC 1760, a Division Bench of this Court seized of a similar controversy held that in the absence of any provision under law even if the petitioner is subjected to punishment in criminal proceedings that would not be a ground for withholding the post retiral benefits admissible to him.

16. Similarly in Mahesh Bal Bhardwaj v. U.P. Co-operative Federation Ltd. and another, 2007(10) ADJ 561 (LB)(DB), the Court held that gratuity and post retiral dues of a person cannot be withheld on the ground that criminal proceedings are pending against him.

17. In view of the aforesaid facts and circumstances coupled with the fact that a conscious decision was taken by the High Court on its administrative side to release 90% of the gratuity admissible to the petitioner, ipso facto the petitioner is entitled for release of 90% of even the enhanced gratuity.

18. In State of U.P. and others v. Dhirendra Pal Singh, MANU/SC/1479/2016 : 2016(4) UPLBEC 2881, the Apex Court relying upon State of Kerala and others v. M. Padmanabhan Nair, MANU/SC/0296/1984 : (1985) 1 SCC 429, held that the pension and gratuity are no longer bounty to be distributed by the Government to its employees but rather valuable rights in their hands and any culpable delay in distribution thereof must visit with penalty with interest.

19. In Y.K. Singla v. Punjab National Bank and others, MANU/SC/1109/2012 : (2013) 3 SCC 472, the Apex Court, after discussing the issue relating to interest payable on the amount of gratuity not paid within time, directed that interest at the rate of 8% per annum shall be paid on the amount of gratuity.

20. In view of the above decision, as there was no justification on the part of the respondents for withholding the payment of 90% of the enhanced gratuity admissible to the petitioner, we are of the opinion that the petitioner is entitle to be compensated for the loss by way of payment of interest. Accordingly, the communications dated 6.9.2012 and 13.12.2012 (Annexures 5 and 7 to the writ petition) stand quashed and the respondents are directed to pay 90% of the enhanced gratuity to the petitioner with interest at the rate of 8% per annum from the date the enhanced gratuity became due and payable i.e. 4th November, 2010 till the date of its payment.

The writ petition is allowed.




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