# Constable 872 C.P. Gulab Singh v. Deputy Inspector General of Police & Ors., PHQ, Allahabad

- **Citation:** (2014) 2 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-16
- **Case number:** Civil Misc. Writ Petition No. 14572 of 2006
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/constable-872-c-p-gulab-singh-v-deputy-inspector-general-of-police-ors-phq-42986
- **Pages:** 6

## Headnote

Payment of Gratuity Act, 1972-Section-4(6)
Gratuity-withhold on ground of pendency of
criminal case-admittedly till the date of
superannuation-no departmental enquiry
initiated-held-can
not
be
withheldconsequential direction issued.

Held: Para-16
In the present matter, it is admitted case
that in pursuance of the criminal proceeding,
there was no departmental inquiry had ever
2 All Constable 872 C.P. Gulab Singh Vs. Deputy Inspector General of Police & Ors. P.H.Q, Allahabad. 825
been initiated against the petitioner, infact
there is no averments in the counter affidavit
for the same. In absence of any department
inquiry, the payment towards the retiral
dues can not be forfeited. The Hon'ble Apex
Court in catena of decisions had clearly held
that the criminal proceeding as well as
departmental
proceeding
may
go
simultaneously.
In
peculiar
facts
and
circumstances, if the facts are similar, the
department
may
stop
the
disciplinary
proceeding and wait for out come of criminal
trial,
but
in
the
present
matter
no
departmental inquiry had been initiated
against the petitioner. Therefore, the stand
taken by the respondent is contrary to the
settled proposition of law and same is not
sustainable and liable to be rejected.

Case Law discussed:
[(2000) 6 SCC 493]; 2007(10) ADJ, 561; 2009
(7) ADJ 379; 2012 (1) ESC 57 (Alld.); AIR
1971 SC 1409; (1983) 1 SCC 305; 2005 (5)
SCC 245.

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES
that the allegations were minor in nature
and, therefore, the proposal of dismissal
was disproportionate to the charges
levelled against the petitioner.

16. In view of the said finding the
Board has awarded the punishment of
only withholding of two increments on
permanent basis. The decision of the
Board has been upheld by this Court in
Committee of Management, Chiraunji Lal
Dharampal Kanya Ucchhatar Madhyamik
Vidyalaya, Badaun and another v. State of
U.P. and another v. State of U.P. and
others, 2007 (6) ADJ 490. A copy of the
said judgment is annexure-1 to the writ
petition. The Special Appeal filed against
the said judgment is pending but
admittedly no interim order has been
passed.

17. I find there is considerable merit
in the contention urged by Sri Khare that
in the U.P. Act No. II of 1921 and U.P.
Act No. 5 of 1982 there is no provision
for initiating or continuing disciplinary
proceeding against a retired teacher,
therefore, in absence of any provision in
the U.P. Act No. II of 1921 and the U.P.
Act No. 5 of 1982 to continue the
disciplinary
proceedings
against
the
retired teacher, the pendency of the
Special Appeal will have no effect after
the retirement of the petitioner.

18. In view of the said facts the
order of the DIOS dated 02.01.2009 is
liable to be set aside. It is accordingly set
aside. The petitioner is permitted to move
a fresh application alongwith the certified
copy of this order within two weeks
giving details of her entitlement of the
salary and retiral benefits and various
dues, which have been mentioned in the
writ petition, before the DIOS. The DIOS
shall
pass
the
appropriate
order
expeditiously but not later than three
months from the date of communication
of this order.

19. The DIOS shall have due regard
to the fact that the petitioner is a retired
teacher, therefore, all her dues may be
paid expeditiously without any delay.

20. The writ petition is, accordingly,
allowed.

21. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2014

BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Civil Misc. Writ Petition No. 14572
of 2006

Constable 872 C.P. Gulab Singh ...Petitioner
Versus
Deputy Inspector General of Police &
Ors., PHQ, Allahabad ...Respondents

Counsel for the Petitioner:
Sri Shailendra Mishra, Sri Manu Sharma
Sri H.K. Sharma

Counsel for the Respondents:
C.S.C.

Payment of Gratuity Act, 1972-Section-4(6)
Gratuity-withhold on ground of pendency of
criminal case-admittedly till the date of
superannuation-no departmental enquiry
initiated-held-can
not
be
withheldconsequential direction issued.

Held: Para-16
In the present matter, it is admitted case
that in pursuance of the criminal proceeding,
there was no departmental inquiry had ever
2 All Constable 872 C.P. Gulab Singh Vs. Deputy Inspector General of Police & Ors. P.H.Q, Allahabad. 825
been initiated against the petitioner, infact
there is no averments in the counter affidavit
for the same. In absence of any department
inquiry, the payment towards the retiral
dues can not be forfeited. The Hon'ble Apex
Court in catena of decisions had clearly held
that the criminal proceeding as well as
departmental
proceeding
may
go
simultaneously.
In
peculiar
facts
and
circumstances, if the facts are similar, the
department
may
stop
the
disciplinary
proceeding and wait for out come of criminal
trial,
but
in
the
present
matter
no
departmental inquiry had been initiated
against the petitioner. Therefore, the stand
taken by the respondent is contrary to the
settled proposition of law and same is not
sustainable and liable to be rejected.

Case Law discussed:
[(2000) 6 SCC 493]; 2007(10) ADJ, 561; 2009
(7) ADJ 379; 2012 (1) ESC 57 (Alld.); AIR
1971 SC 1409; (1983) 1 SCC 305; 2005 (5)
SCC 245.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the State.

2. By means of present writ petition,
the petitioner has prayed for quashing the
impugned
order
dated
06.02.2002
(Annexure No. 2 to the writ petition), by
which gratuity of the petitioner was not
paid and only interim pension was issued.

3. Learned counsel for the petitioner
states that petitioner was working as
constable in civil police. During the tenure of
service career a criminal case no. 107/90
under sections 147, 302, 201 IPC, Police
Station,
Bairiya,
District
Ballia,
was
registered and the said case is reported to be
pending against the petitioner and meanwhile
petitioner was retired on 29.02.2000 and as
per the record, there was no departmental
proceeding against the petitioner. When the
petitioner has not been paid gratuity and other
retiral dues had filed Civil Misc. Writ Petition
No. 39938 of 2001. The said writ petition was
disposed of by this Court vide order dated
03.12.2001
directing
the
answering
respondent to decide the claim of the
petitioner strictly in accordance to the law.

4. In pursuance to the said direction
the respondent had refused to release the
gratuity vide order dated 06.02.2002
(Annexure No. 2 to the writ petition), on
the ground that criminal trial is pending
against the petitioner, therefore, in view
of
the
Government
Order
dated
28.10.1980, the gratuity of the petitioner
cannot be released. The said order dated
06.02.2002 was the subject matter to
challenge before this Court.

5. Learned counsel for the petitioner
states that petitioner is liable to receive the
complete pensionery benefits including full
gratuity, pension etc. and the answering
respondent in the garb of Government Order
dated 28.10.1980, cannot stop payment of
gratuity and full pension of the petitioner,
specially in the background where the
petitioner had not faced any department
inquiry.

6. Where as stand taken by the
respondent that petitioner was subjected
to criminal proceeding, which is reported
to be pending. Therefore, in view of the
Government Order dated 28.10.1980,
petitioner is not entitle for payment of
gratuity as well as full retiral dues. The
relevant portion of the Government Order
dated 28.10.1980 is quoted below:-

^^,sls ljdkjh lsodksa dks] ftuds fo:)
lsokfuo`Rr ds fnukad dks] foHkkxh;@U;kf;d vFkok
826 INDIAN LAW REPORTS ALLAHABAD SERIES
iz'kklukf/kdj.k dh tkap py jgh gks vFkok
iz'kklukf/kdj.k tkap fd;k tkuk visf{kr gks
'kklukns'k la[;k lk&3&1879@nl&80&909&79
fnukad 28-10-1980 ds vuqlkj vufUre isa'ku dk
Hkqxrku dj fn;k tk;sxk fdUrq xzsP;qVh dh iw.kZ
/kujkf'k rc rd jksdh tk;sxh tc rd ,slh tkap
dk ifj.kke izkIr u gks tk;------------**

7. Heard learned counsel for the
parties and perused the record.

8. The provision of Payment of
Gratuity has been provided under Section
4 of the "Payment of Gratuity Act", 1972.
Section 4 (1) says that Gratuity shall be
payable
to
an
employee
on
the
termination of his employment after he
has rendered continuous service for not
less
than
five
years-(a)
on
his
superannuation; (b) on his retirement or
resignation; or (c) on his death or
disablement due to accident or disease;
wherein sub Clause (6) spells out the
conditions under which gratuity of an
employee can be stopped or withheld.
Section 4(6) of Payment of Gratuity Act
1972 is quoted below:-

(6)
Notwithstanding
anything
contained in sub-section (1),----------

(a) the gratuity of an employee,
whose services have been terminated for
any act, wilful omission or negligence
causing any damage or loss to, or
destruction of, property belonging to the
employer, shall be forfeited to the extent
of the damage or loss so caused;

(b) the gratuity payable to an
employee may be wholly or partially
forfeited.

(i)if the services of such employee
have been terminated for his riotous or
disorderly conduct or any other act
violence on his part, or

(ii) if the services of such employee
have been terminated for any act which
constitutes an offence involving moral
turpitude, provided that such offence is
committed by him in the course of his
employment.

9. While examining the import of the
aforesaid section, it contemplates the
following conditions on which Gratuity can
be withheld (a) if the order of termination is
based upon any act, wilful omission or
negligence causing any damage or loss to the
property belonging to the employer; (b) if the
services of an employee have been
terminated for his riotous or disorderly
conduct or any other act of violence on his
part; (c) if the employee is found guilty of
moral turpitude provided that said offence
has been committed during tenure of his
service career. These are the only conditions
which empowers the respondents to withhold
the Gratuity of the petitioner.

10. In the present case what has
been alleged that the petitioner was
implicated in criminal case and trial is
said to be pending, as such his gratuity
cannot be released in his favour, while
none of the conditions as aforesaid do
exist as the petitioner's services were not
terminated nor he falls under any of the
conditions otherwise given in sub Section
(6) and its sub clauses. Termination of
services for any of the causes enumerated
in Sub- section (6) of Section 4 of the Act,
therefore, is imperative.

11. Perusal of the impugned order
reveals that reliance has been placed on
G.O.
dated
20.10.1980
which
contemplates the following things:-
2 All] Constable 872 C.P. Gulab Singh Vs. Deputy Inspector General of Police & Ors. P.H.Q, Allahabad. 827

(a) the provisional pension shall be
authorized for the period commencing
from the date of retirement up to including
the date on which judicial proceedings of
the departmental or administrative Tribunal,
as the case may be, final orders are passed
by the competent authority.

(b) 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.

12. These rules are contrary to the
Section 4(6) of the Act which does not
prescribed any such conditions. Even
though
the
expression
judicial
proceedings have been used for the
purpose of any administrative action or
which may have given rise to a judicial
proceedings relating to the conduct of the
Government Servant. One of the main
object of withholding gratuity is to
compensate the Government from the loss
caused by the Government servant during
his tenure in the service.

13. However, Section 14 of the Act
provides that the provisions of this Act or
any rule made thereunder shall have effect
notwithstanding
anything
inconsistent
therewith contained in any enactment
other than this Act or in any instrument or
contract having effect by virtue of any
enactment other than this Act. The
overriding effect of any law and amount
of gratuity is protected by statutory
provisions.
Therefore,
such
amount
cannot be denied by the employer to the
employee or employer has no power to
withhold or forfeit the said amount unless
the provisions of Section 4(6) of Payment
of Gratuity Act is satisfied. It is not the
case of the respondents that procedure
which is required under Section 4(6) of
the Act was followed by the respondents
because it is not the case of termination
but it is the case of superannuation.
Therefore, Section 4(6) of the Act
procedure has not been followed by the
respondents.

14. Hon'ble Apex Court in Balbir
Kaur and Another v. Steel Authority of
India Ltd. and Another [(2000) 6 SCC
493], has opined "...As regards the
provisions of the Payment of Gratuity
Act, 1972 (as amended from time to time)
it is no longer in the realm of charity but a
statutory right provided in favour of the
employee..."

15. Perusal of the Act shows that it
is a neat scheme providing for payment
of gratuity. It is a complete code
containing detailed provisions covering
the essential provisions of a scheme for
gratuity. It not only creates a right to
payment of gratuity but also lays down
the principles for quantification thereof
as also the conditions on which he may
be
denied
therefrom.
As
noticed
hereinbefore, sub-section (6) of Section 4
of the Act contains a non-obstante clause
vis-`-vis sub-section (1) thereof. As by
reason thereof, an accrued or vested right
is sought to be taken away, the
conditions laid down thereunder must be
fulfilled.
The
provisions
contained
therein must, therefore, be scrupulously
observed. Clause (a) of Sub-section (6)
of Section 4 of the Act speaks of
termination of service of an employee for
any act, willful omission or negligence
causing any damage. However, the
amount liable to be forfeited would be
only to the extent of damage or loss
caused. Conditions laid down therein are
also not satisfied."
828 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In the present matter, it is
admitted case that in pursuance of the
criminal
proceeding,
there
was
no
departmental inquiry had ever been
initiated against the petitioner, infact there
is no averments in the counter affidavit
for the same. In absence of any
department inquiry, the payment towards
the retiral dues can not be forfeited. The
Hon'ble Apex Court in catena of decisions
had clearly held that the criminal
proceeding as well as departmental
proceeding may go simultaneously. In
peculiar facts and circumstances, if the
facts are similar, the department may stop
the disciplinary proceeding and wait for
out come of criminal trial, but in the
present matter no departmental inquiry
had been initiated against the petitioner.
Therefore, the stand taken by the
respondent is contrary to the settled
proposition of law and same is not
sustainable and liable to be rejected.

17. The contention of the petitioner
is that no departmental proceeding is
pending against the petitioner at present
and, therefore, submission is that the
petitioner is entitled for full pension. It is
further submitted that mere pendency of
criminal proceeding will not disentitle the
petitioner to get full pension, inasmuch as
there is no charge of the financial
irregularities. Reliance is placed on the
Division Bench decision of this Court in
the case of Mahesh Bal Bhardwaj Vs.
U.P. Cr-operative Federation Ltd. and
another, reported in 2007(10) ADJ, 561
and the decision of learned Single Judge
in the case of Radhey Shyam Shukla Vs.
State of U.P. and another, reported in
2009 (7) ADJ, 379 and Division Bench
decision of this Court in the case of Lal
Sharan Vs. State of U.P. and others,
reported in 2012 (1) ESC, 57 (Alld.).

18. In the case of Deoki Nandan
Shan Vs. State of U.P., reported in in AIR
1971 SC, 1409, the Apex Court ruled that
the pension is a right and payment of it
does not depend upon the discretion of the
Government but is governed by the Rules
and the Government servant coming
within those Rules is entitled to claim
pension and grant of pension does not
depend upon anyone's discretion. It is
only for the purpose of quantifying the
amount, having regard to service and
other allied matters, that it may be
necessary for the authority to pass an
order to that effrect but the right to
receive pension flows to the officer not
because of any such order but by virtue of
the rules. This view was further affirmed
by the Apex Court in the case of State of
Punjab Vs. Iqbal Singh, reported in AIR
1976, SC, 667.

19. In the case of D.S.Nakara Vs.
Union of India, reported in (1983) 1 SCC,
305, the Apex Court has observed as
under:

"From the discussion three things
emerge : (1) that pension is neither a
bounty nor a matter of grace depending
upon the sweet will of the employer and
that it creates a vested right subject to
1972 Rules which are statutory in
character because they are enacted in
exercise of powers conferred by the
proviso to article 309 and clause (5) of
Article 148 of the Constitution; (ii) that
the pension is not an ex gratia payment
but it is a payment for the past service
rendered; and (iii) it is a social welfare
measure rendering socio-economic justice
to those who in the hey-day of their life
ceaselessly toiled for the employer on an
assurance that in their old age they would
not
be
left
in
lurch....."
2 All]. Yogesh Agarwal Vs. Sri Rajendra Goyal & Ors.
829

20. The ratio laid down in these
cases had been subsequently followed by
the Apex Court in series of its decisions
including the case of Secretary, O.N.G.C.
Limited Vs. V.U.Warrier, reported in
2005 (5) SCC, 245.

21. Division Bench of this Court in the
case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Federation Ltd. and another
(Supra) has held that gratuity and other post
retiral dues, which the petitioner is otherwise
entitled under the Rules, could not have been
withheld either on the pretext that criminal
proceedings were pending against the
petitioner or for the reason that on the
outcome of the criminal trial, some more
punishment was intended to be awarded.

22. Learned Single Judge of this
Court in the case of Radhey Shyam
Shukla Vs. State of U.P. and another
(Supra) has also taken the similar view
and has held that mere pendency of the
criminal proceedings would not authorize
withholding of gratuity.

23. Division Bench of this Court in
the case of Lal Sharan Vs. State of U.P.
and others (Supra) has held that mere
intention to obtain sanction for initiating
disciplinary enquiry could not be basis for
withholding the post retiral dues unless
sanctioned, granted and the disciplinary
proceedings started.

24. Apex Court in the case of State of
Punjab and another Vs. Iqbal Singh, (Supra)
has further held that since the cut of the
pension and the gratuity adversely affects the
retired employee as such order can not be
passed
without
giving
reasonable
opportunity of making his defence.

25. In the aforementioned facts and
circumstances, the impugned order dated
06.02.2002 (Annexure No. 2 to the writ
petition) is hereby quashed. Respondents
are directed to release the entire post
retiral dues of the petitioner including the
gratuity, pension, etc., within a period of
three months from the date of production
of certified copy of this order before
him.The petitioner shall be allowed to
continue to be paid the interim pension
within the said period. The respondents
shall fix the final pension and shall pay
the
same
regularly
thereafter.
The
petitioner shall also be entitled to interest
at the rate of 6% per annum towards the
delayed payment of gratuity, namely from
the date when it became payable and till it
is actually paid.

26. With the aforesaid observation,
the writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 24892 of 2014

Yogesh Agarwal ...Petitioner
Versus
Sri Rajendra Goyel & Ors. ...Respondents

Counsel for the Petitioner:
Smt. Rama Goel Bansal

Counsel for the Respondents:
Sri Rahul Sahai

C.P.C.-Order
XXXIX
Rule-3-Grant
of
temporary injunction-general rule to grant
ex-parte-injunction
after
hearing
to
defendant-only
exception
to
record
reasons-in absence of reasons -ex-parte
injunction granted by Trail Court-rightly