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Government servant undergoing criminal proceedings entitled to pension, other retirement benefits

The Allahabad High Court has dismissed the petition saying that the government servant is not entitled for gratuity till the criminal proceedings are pending, but he is entitled to provisional pension and other post-retrial dues for which there is no legal embargo.

A Single Bench of Justice Alok Mathur passed this order, while hearing a petition filed by Virendra Kumar Srivastava.

In this case, the question which falls for consideration before the court is whether the government servant is entitled for full pension and gratuity where criminal proceedings are pending against him?

It has been submitted by the counsel for the petitioner that the petitioner was appointed as Assistant Wireless Operator in the Department of the Wireless, Police, Mahanagar, Lucknow on 16.6.1979 and has superannuated from the post of Principal/Head Wireless Operator one 31.3.2019.

During his service a first information report was lodged against him in case under sections 417/467/468/471/218 IPC at Police Station, Mahanagar, Lucknow.

The chargesheet has been filed in the said case on 29.01.2000 and the trial is in progress.

Subsequent to the lodging of the first information report the petitioner was suspended from service and disciplinary proceedings were also initiated against him which were concluded in favour of the petitioner where he was exonerated, and the order of suspension was revoked on 10.09.2004.

That subsequent to his retirement it has been submitted that no disciplinary proceedings are pending against him, but by means of the impugned orders the respondents have withheld the regular pension and gratuity on account of the fact that the criminal case is pending against him.

It was submitted that in the case of Udai Narayan Ojha (supra), the petitioner therein had superannuated on December 31, 2011 from the post of Assistant Sub Inspector in UP Police and a criminal case was lodged against him in 2007 under section 409 IPC which was pending investigation. Subsequently the charge sheet was filed on 20.4.2013 subsequent to his superannuation and the opposite parties had withheld his gratuity.

It has been submitted by the counsel for the petitioner that the facts of the case in the case of Udai Narain Ojha are quite similar. In the case of Udai Narain Ojha, the decision to withhold gratuity was taken subsequent to filing of the charge sheet against him when the criminal trial/ Judicial proceedings were pending against him, and accordingly prayed that his petition may be allowed in similar terms.

Per contra, the Standing counsel has opposed the prayer made in the writ petition and submitted that the controversy involved in the case is fully covered by the judgement of the full bench in the case of Shivagopal vs state of UP Special appeal decided on 08.05.2019.

The Court noted, While answering the aforesaid question, the Full Bench considered that the civil servants’ claim to pension and gratuity is regulated by regulations/rules in force at the time when the officer demits office on attaining the age of superannuation or otherwise from the service of the government. The Full Bench concurred with the judgement of the division bench in the case of Sri Pal Vaish vs UP Power Corporation Limited and another and Jayprakash and disagreed with the judgement in the case of Bhagwati Prasad Verma Vs state of UP and others to hold that “pension includes gratuity” under the civil services regulations In a reference to Article 351-A.

The Full bench considered that Article 351-A empowers the governor to withhold or withdraw pension or a part of it permanently off a specified period and order recovery from pension for pecuniary loss caused to the government of the pensioner in departmental proceedings or Judicial proceedings where he has been found (i) guilty of grave misconduct or (ii) do of course back in early loss to the government by misconduct or negligence during his service period.

The proviso to the article spells out the circumstances/ conditions in which the departmental proceedings/ Judicial proceedings are required to be instituted for the purpose of withholding/ withdrawing pension.

It was also observed that the State Governments/Governor reserves to itself the power and right to withhold or withdraw pension or part thereof, whether permanently or for specified period or to order recovery from pension or part thereof, whether permanently or for a specified.

Or to order recovery from pension of the whole or part of any pecuniary loss caused to the government upon conclusion of the disciplinary/judicial proceedings.

The Court further noted, The Full Bench also considered the provisions applicable where the departmental or judicial proceedings are pending on the date of retirement. It considered the provisions of Article 351AA inserted vide notification dated October 24, 1980, according to which where the proceedings or inquiry are pending against the government servant on date of superannuation, the government servant shall be entitled to provisional pension.

In other words, pendency of departmental /judicial proceedings or any inquiry or enquiry to be instituted after retirement would not empower the state government to withhold pension, but Government servants may be sanctioned provisional pension, computed as per rules.

It follows that the full pension has to be computed on conclusion of proceedings/ inquiry as the case may be.

“In the case the criminal proceedings are pending against the petitioner where the First Information report was lodged on 16.07.1998 and the charge sheet was filed on 29.01.2000 and the trial is underway. And it is only because of the pendency of the criminal proceedings against the petitioner that post retiral dues including pension have been withheld.

“The case of the petitioner is covered by the judgment of the full bench in the case of Shiv Gopal (supra) and according to regulation 919A of the Civil Service Regulation, the petitioner is not entitled for payment of gratuity during pendency of criminal case.

Considering the aforesaid, the Court is of the considered view that the petitioner is not entitled for gratuity till the criminal proceedings are pending, but he is entitled to provisional pension and other post retiral dues for which there is no legal embargo,” the Court observed, while dismissing the petition.

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