# Constable Mahesh Chandra (Mahesh Singh) v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 947
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-21
- **Case number:** Writ-A No. 19308 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/constable-mahesh-chandra-mahesh-singh-v-state-of-u-p-ors-49756
- **Pages:** 10

## Headnote

948 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. Service Law - Gratuity - Pendency of a
criminal case - In order for the Authorities
to withhold the gratuity of the petitioner,
it would be imperative to record that the
pensioner would be guilty or is under trial
for a serious crime. It will be necessary for
the Authorities to apply its mind to see whether
the nature of the crime in which the pensioner
is involved comes within the ambit of the
serious crime or not. (Para 15)

B. The Competent Authority must also
bear in the mind whether the complaint
or charge sheet against the petitioner
was filed during the service period and if
the allegations in the charge sheet
against the petitioner falls within the
ambit of a serious offence which is
unbecoming of a government servant,
then how and in what contingency, the
pensioner
was
allowed
to
continue
in
employment even though the Department
knew of the pendency of the criminal case
against the pensioner and whether in such
circumstances, it would be appropriate to
withhold the gratuity of the pensioner on the
ground of the pendency of the criminal case.
(Para 15)

The petitioner had joined the services in the
year
1982
and
he
superannuated
on
31.01.2022 after putting in a service of more
than 39 years, 11 months and 23 days. (Para
16)

The Department was aware of the said
criminal case bearing No. 207 of 2005
pending against the petitioner. The charge
sheet was filed in the year 2006 and the
matter is still engaging the attention of the
Court concerned. Whether any reasonable
case is made out is for the Court concerned to
decide but at the same time, after more than
16 years of the institution of the said case
and where the petitioner has superannuated
on 31.01.2022, it had to be considered
objectively by the Authorities as to whether
there is reasonable material to arrive at a
finding that the petitioner is somewhat
involved in a serious crime. In case if it was
so then under what circumstances, the
petitioner was allowed to continue in service
without any departmental proceedings, are all
relevant issues, which ought to have been
considered but unfortunately this aspect of
the matter has not been considered by the
Authority. (Para 17)

The gratuity which has been withheld is only
on account of the pendency of the criminal
case and it does not indicate that there is any
serious deliberation regarding the fact as to
whether the petitioner was involved in a
serious crime. The impugned order is
apparently non-speaking and does not reflect
any application of judicial mind. (Para 20)

Writ petition allowed. Matter is remitted to
the Authority concerned. (E-4)

Precedent followed:

## Text

2 All. Constable Mahesh Chandra (Mahesh Singh) Vs. State of U.P. & Ors.
947
communication is to be made and this time
begins to run from the date the detention
under the order takes effect."

Though
the
above
mentioned
observations were made in the context of
the interpretation of the Article 22, the
definition of the phrase "as soon as may
be" i.e. within the time which is reasonably
requisite would apply with full vigour to the
interpretation of Section 11(1) of the 1982
Act.

67. The Board further erred in calling
for the names of two senior most teachers
in the year 2022 despite that they did not
senior most as per the cut off date
prescribed in the advertisement, thus, the
Board changed the rules midway which is
not permissible and on that count also, the
Board was at error in calling for the said
names which fact also gets fortify in the
case of Vivek Kumar Upadhyay (supra).

68. The Board, I have no hesitation in
holding, has failed on all the said fronts and
thus on all the grounds as noted above, I
have no hesitation in holding that the action
of the Board in making the recruitment
after nine years is violative of Article 14 of
the Constitution of India.

69. The selections so made have
clearly deprived the eligible candidates
(two senior most teachers) of their rights
under Rule 12(6) of the 1998 Rules and
also
the
candidates
who
acquired
qualifications after 2014 as they are
deprived of being considered only on
account of delay by the Board. The rights
of the petitioners have also been violated,
as the appointment through the direct
recruitment is indirectly an avenue of
promotion available to the senior most
teachers which is otherwise not available in
terms of Rule 10 of 1998 Rules. The entire
process of selection is also bad as the pool
from which the selection are to be made by
the Board has got shrunk only on account
of inordinate delay in completing the
process of appointment and has thus
resulted in violation of Article 16 of the
Constitution of India.

70. Thus for all the reasons recorded
above, all the appointments made by the
Board in pursuance to the Advertisement
No.03 of 2013 are set aside as being
violative of Articles 14 and 16 of the
Constitution of India. The Board shall now
take steps for recruitment by issuing fresh
advertisements with all expeditions strictly
in accordance with law.

71. Till such steps as directed are taken by
the Board, the arrangement as provided in
the 1982 Act particularly Section 18 shall
continue to govern the recruitment to the
posts of Principals and the Headmasters.

72. In view of above, all the writ
petitions stand allowed.
----------
(2023) 2 ILRA 947
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-A No. 19308 of 2022

Constable
Mahesh
Chandra
(Mahesh
Singh) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Sudhir
Singh
Chauhan,
Sri
Ashutosh
Vishwakarma

Counsel for the Respondents:
948 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

A. Service Law - Gratuity - Pendency of a
criminal case - In order for the Authorities
to withhold the gratuity of the petitioner,
it would be imperative to record that the
pensioner would be guilty or is under trial
for a serious crime. It will be necessary for
the Authorities to apply its mind to see whether
the nature of the crime in which the pensioner
is involved comes within the ambit of the
serious crime or not. (Para 15)

B. The Competent Authority must also
bear in the mind whether the complaint
or charge sheet against the petitioner
was filed during the service period and if
the allegations in the charge sheet
against the petitioner falls within the
ambit of a serious offence which is
unbecoming of a government servant,
then how and in what contingency, the
pensioner
was
allowed
to
continue
in
employment even though the Department
knew of the pendency of the criminal case
against the pensioner and whether in such
circumstances, it would be appropriate to
withhold the gratuity of the pensioner on the
ground of the pendency of the criminal case.
(Para 15)

The petitioner had joined the services in the
year
1982
and
he
superannuated
on
31.01.2022 after putting in a service of more
than 39 years, 11 months and 23 days. (Para
16)

The Department was aware of the said
criminal case bearing No. 207 of 2005
pending against the petitioner. The charge
sheet was filed in the year 2006 and the
matter is still engaging the attention of the
Court concerned. Whether any reasonable
case is made out is for the Court concerned to
decide but at the same time, after more than
16 years of the institution of the said case
and where the petitioner has superannuated
on 31.01.2022, it had to be considered
objectively by the Authorities as to whether
there is reasonable material to arrive at a
finding that the petitioner is somewhat
involved in a serious crime. In case if it was
so then under what circumstances, the
petitioner was allowed to continue in service
without any departmental proceedings, are all
relevant issues, which ought to have been
considered but unfortunately this aspect of
the matter has not been considered by the
Authority. (Para 17)

The gratuity which has been withheld is only
on account of the pendency of the criminal
case and it does not indicate that there is any
serious deliberation regarding the fact as to
whether the petitioner was involved in a
serious crime. The impugned order is
apparently non-speaking and does not reflect
any application of judicial mind. (Para 20)

Writ petition allowed. Matter is remitted to
the Authority concerned. (E-4)

Precedent followed:

1. Shiv Gopal & ors. Vs St. of U.P., 2019 (5) ADJ
(41) (FB) (Para 8)

2. Uday Narayan Ojha Vs St.of U.P. & ors., 2020
(6) AWC 5502 (Para 8)

3. Devendra Kumar Sharma Vs St. of U.P. &
ors., 2021 (0) Supreme 1154 Allahabad (Para 8)

4. U.O.I. & ors. Vs S.L. Abbas, 1993 (4) SCC
351 (Para 14)

Present petition challenges the order
dated
31.01.2022,
issued
by
Superintendent of Police, Orai, District
Jalaun, whereby the gratuity of the
petitioner has been withheld on the
ground of pendency of a criminal case
against the petitioner.

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Sudhir Singh Chauhan,
learned counsel for the petitioner as well as
Sri
Shrawan
Kumar
Dubey,
learned
Additional Chief Standing Counsel for the
State-respondents.

2. The learned counsel for the
petitioner has also filed a supplementary
2 All. Constable Mahesh Chandra (Mahesh Singh) Vs. State of U.P. & Ors.
949
affidavit today after serving a copy on the
learned counsel for the State-respondents
and the same is taken on record.

3. By means of the instant petition,
the petitioner prays for the following reliefs
which reads as under:-

"(I) Issue a writ, order or direction in
the nature of Certiorari to quash/set-aside
the impugned order/letter No. Sa-96/2021
dated 31.01.2022 issued by the respondent
no. 3 i.e. Superintendent of Police Orai at
District Jalaun.

(II) Issue a writ, order or direction in
the nature of mandamus commanding and
directing to the respondents to pay/allow
the gratuity with interest to the petitioner."

4. The petitioner has approached this
Court assailing the order dated 31.01.2022
whereby the gratuity of the petitioner has
been withheld on the ground of pendency
of a criminal case against the petitioner.
The submission of learned counsel for the
petitioner is that the petitioner was
appointed on the post of Constable on
01.02.1982 by the Superintendent of
Police, Fatehgarh, District Farrukhabad.
The petitioner after completing a service of
39 years 11 months and 23 days has retired
on 31.01.2022. It is also the case of the
petitioner that during his service tenure, he
was awarded with cash rewards and was
also appreciated for his services and no
case for any embezzlement or causing harm
or loss to the Government was initiated or
is pending against the petitioner, during his
entire service tenure.

6. It is the contention of the learned
counsel for the petitioner that a case
bearing No. 207 of 2005 came to be lodged
against the petitioner on 29.06.2005 under
Sections 307/332/333/504/506/120-B I.P.C.
in respect of an alleged incident which
occurred on 29.06.2005. It is urged that the
said case is still pending and on account of
the said pendency, the gratuity of the
petitioner has been withheld. It is also
urged that the petitioner has been falsely
implicated, inasmuch as, on the alleged
date of the incident, i.e. on 29.06.2005, the
petitioner was on duty and was not at the
alleged site of the incident and to buttress
the aforesaid submissions, he has also
brought on record the documents in the
shape of Annexure Nos. 1 and 2 with the
writ petition.

7. By drawing the attention of the
Court to the supplementary affidavit
indicating the anomalies in the trial of Case
No. 207 of 2005, it is urged that the
petitioner has been falsely implicated and
there is no fault of the petitioner despite the
same the matter is pending since more than
16 years and the aforesaid information was
always
available
with
the
police
department, yet, no departmental inquiry
was initiated against the petitioner on this
count till retirement.

8. It is also urged that there is no
justification for withholding the gratuity of
the
petitioner
especially
when
the
Authorities themselves did not find that the
petitioner was guilty of any serious offence
or crime nor the alleged case no. 207 of
2005 prompted the respondent-authorities
to institute any departmental proceedings
against the petitioner and now when that he
has retired, it is not lawful for the
respondents to have withheld the gratuity
which is against the settled legal principles
as enunciated by a Full Bench decision of
this Court in the Case of Shiv Gopal and
Others Vs. State of U.P. 2019 (5) ADJ
(441) (FB). The learned counsel for the
petitioner also relies upon a decision in the
950 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Uday Narayan Ojha Vs. State of
U.P. and others; 2020 (6) AWC 5502. and
Devendra Kumar Sharma Vs. State of U.P.
and 4 others; 2021 (0) Supreme 1154
Allahabad.

9. On the strength of the aforesaid
decisions, it is urged that the impugned
order dated 31.01.2022 whereby the
gratuity has been withheld is bad and as
such a direction be issued to release the
withheld
gratuity
to
the
petitioner
expeditiously along with interest after
setting aside the impugned order.

10. The learned Additional Chief
Standing Counsel on the basis of written
instructions submits that on account of
pendency of the criminal case, the gratuity
has been withheld. It is urged that there is
no error or jurisdictional error committed
by the Authorities in withholding the
gratuity and as such the writ petition is not
maintainable and deserves to be dismissed.

11 . The Court has considered the
submissions and also perused the material
available on record.

12. It is not disputed that the petitioner
had joined the services in the year 1982 and
had attained the age of superannuation on
31.01.2022. It is also not disputed that no
departmental inquiry was pending against the
petitioner in his entire service tenure. It is also
not disputed that the petitioner is also not
guilty of any act of omission or commission
whereby there has been any loss to the
Government. The solitary ground upon which
the gratuity of the petitioner has been
withheld is the pendency of the criminal case
no. 207 of 2005.

14. In order to ascertain the veracity
as well as the justification for withholding
the gratuity of the petitioner only on the
ground of pendency of the criminal case, it
will be necessary to examine the issue in
light of the full bench decision of tIn Union
of India and others Vs. S.L. Abbas; 1993
(4) SCC 351 wherein the Apex Court held
as under:-his Court in the case of Shiv
Gopal (supra) and the relevant portion
thereof reads as under:-.

"31. On plain reading, Article 351
confers power upon the State Government
of withholding or withdrawing pension or
any part of it, if the pensioner be convicted
of ''serious crime' or be guilty of grave
misconduct. In other words the State
Government can withhold or withdraw
pension on two grounds: (i) convicted of
serious
crime;
(ii)
guilty
of
grave
misconduct; but not otherwise. In other
words mere pendency of criminal case or
disciplinary proceedings is not sufficient to
withhold/or withdraw pension under Article
351.

------******------****---------***-----
****

39. The expression ''serious crime' has
to be understood in the context of service
jurisprudence involving the government
servant. It may be any act of ommission
which in the opinion of the competent
authority is serious enough and calls for
punitive action in terms of Article 351. It
has no bearing with the quantum of
sentence but with the nature of the offence
and the degree of involvement of the
government
servant
in
the
commission/omission of the crime.

40. Article 351-A empowers the
Governor to withhold or withdraw pension
or a part of it permanently or for specified
period and order recovery from pension for
pecuniary loss caused to the Government if
the pensioner in departmental proceedings
or in judicial proceedings, has been found:
2 All. Constable Mahesh Chandra (Mahesh Singh) Vs. State of U.P. & Ors.
951
(i) guilty of grave misconduct or (ii) to
have caused pecuniary loss to Government
by misconduct or negligence during his
service. The proviso to the Article spells out
the circumstances/conditions in which the
departmental
proceedings/judicial
proceedings is required to be instituted for
the purposes of withholding/withdrawing
pension. Article 351-A reads thus:

"351-A21. The Governor reserves to
himself the right of withholding or
withdrawing a pension or any part of it,
whether permanently or for a specified
period and the right of ordering the
recovery from a pension of the whole or
part of any pecuniary loss caused to
Government, if the pensioner is found in
departmental or judicial proceedings to
have been guilty of grave misconduct, or
to
have
caused
pecuniary
loss
to
Government
by
misconduct
or
negligence, during his service, including
service rendered on re-employment after
retirement:

Provided that-

(a) such departmental proceedings,
if not instituted while the officer was on
duty either before retirement or during
reemployment-

(i) shall not be instituted save with
the sanction of the Governor.

(ii) shall be in respect of an event
which took place not more than four
years before the institution of such
proceeding; and

(iii) shall be conducted by such
authority and in such place or places as
the
Governor
may
direct
and
in
accordance with the procedure applicable
to proceedings on which an order of
dismissal from service may be made.

(b) Judicial proceedings, if not
instituted while the officer was on duty
either before retirement or during reemployment, shall have been instituted in
accordance with sub-clause (ii) of clause
(a); and

(c) the Public Service Commission,
U.P. shall be consulted before final orders
are passed.

[Provided further that of the order
passed by the Governor relates to a cash
dealt with under the Uttar Pradesh
Disciplinary Proceedings, (Administrative
Tribunal) Rules, 1947, it shall not be
necessary
to
consult
Public
Service
Commission].

Explanation-For the purposes of this
article-

(a) Departmental proceeding shall be
deemed to have been instituted when the
charges framed against the pensioner are
issued to him or, if the officer has been
placed under suspension from an earlier
date, on such date ; and

(b) judicial proceedings shall be
deemed to have been instituted:

(i) in the case of criminal proceedings,
on the date on which complaint is made, or
a charge-sheet is submitted, to a criminal
court ; and

(ii) in the case of civil proceedings, on
the date on which the plaint is presented or,
as the case may be, an application is made
to Civil court

Note- As soon as proceedings of the
nature referred to in this article are
instituted the authority which institutes
such proceedings shall without delay
intimate the fact to the Audit Officer
concerned."

41. Explanation to Article 351-A
clarifies that departmental proceedings
shall be deemed to have been instituted: (i)
when charges are framed against the
pensioner; or (ii) the officer has been
placed under suspension from such date.
Further, judicial proceedings is deemed to
have been instituted against the pensioner:
(i) in the case of criminal proceedings, on
952 INDIAN LAW REPORTS ALLAHABAD SERIES
date on which complaint is made or
charge-sheet is submitted to a criminal
court; (ii) in case of civil proceedings on
the date on which plaint is presented or as
the case may be, an application is made to
Civil Court.

42. Now we will refer to the proviso to
Article 351-A. The proviso speaks about
initiation of disciplinary proceedings or
judicial
proceedings
against
the
government servant after retirement. For
initiating
proceedings
the
conditions
specified therein must be satisfied, that is,
departmental proceedings as indicated in
proviso (a) if not instituted while the officer
was on duty then it shall not be instituted
except:

(i). with the sanction of the Governor;

(ii). it shall be initiated on an event
which took place not more than 4 years
before the institution of the proceedings;

(iii). such proceedings would be
conducted by such authority and in such
place as the Governor may direct and in
accordance with the procedure applicable
to proceedings on which an order of
dismissal from service may be made.

------******------****---------***-----
****

48. On joint reading of Article 351 and
351-A of the Civil Service Regulations
clearly
indicates
that
the
State
Government/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 of the whole
or part of any pecuniary loss caused to the
government in the following eventualities:-

i. pensioner be convicted of serious
crime;

ii. pensioner be guilty of grave
misconduct;

iii. pensioner having caused pecuniary
loss to the government by misconduct or
negligence,
during
service
including
service rendered on reemployment after
retirement;
iv. The power under Article 351 and 351-A
can be invoked by the Governor/State
Government
upon
conclusion
of
disciplinary/judicial proceedings and not at
the inception of the proceedings. In other
words, the condition precedent for exercise
of power under these Articles is on
conclusion of the proceedings and order
being passed thereon by the competent
authority.

Article 351-AA/Article 919-A:

49. Article 351-AA came to be
incorporated entitling provisional pension
as against full pension (commutation of
pension) to government servant against
whom departmental or judicial proceedings
or any enquiry by Administrative Tribunal
is pending on the date of retirement or is to
be
instituted
after
retirement,
such
government servant may be sanctioned
provisional pension as provided in Article
919-A.

50. Article 351-AA reads thus:

"[351-AA25.
In
the
case
of
a
Government
Servant
who
retires
on
attaining the age of superannuation or
otherwise
and
against
whom
any
departmental or judicial proceedings or
any enquiry by Administrative Tribunal is
pending on the date of retirement or is to be
instituted after retirement a provisional
pension as provided in Article 919-A may
be sanctioned."

51. On plain reading of Article 351AA, it transpires that in the eventuality of
proceedings/enquiry, referred therein, is
pending against a government servant on
the date of superannuation, the government
servant shall be entitled to provisional
pension. In other words, pendency of
departmental/judicial proceedings or any
enquiry or enquiry to be instituted after
2 All. Constable Mahesh Chandra (Mahesh Singh) Vs. State of U.P. & Ors.
953
retirement would not empower the State
Government to withhold pension, but the
government servant may be sanctioned
provisional pension, computed as per
Rules. It follows that the full pension has to
be
computed
on
conclusion
of
the
proceedings/enquiry as the case may be."

15. From the perusal of the
aforesaid paragraphs, it would be relevant
to note that in order for the Authorities to
withhold the gratuity of the petitioner, it
would be imperative to record that the
pensioner would be guilty or is under trial
for a serious crime. It will be necessary
for the Authorities to apply its mind to
see whether the nature of the crime in
which the pensioner is involved comes
within the ambit of the serious crime or
not. While entering into the aforesaid
aspect of the matter, the Competent
Authority must also bear in the mind
whether the complaint or charge sheet
against the petitioner was filed during the
service period and if the allegations in the
charge sheet against the petitioner falls
within the ambit of a serious offence
which is unbecoming of a government
servant,
then
how
and
in
what
contingency, the pensioner was allowed
to continue in employment even though
the Department knew of the pendency of
the criminal case against the pensioner
and whether in such circumstances, it
would be appropriate to withhold the
gratuity of the pensioner on the ground of
the pendency of the criminal case.

16. It is in view of the aforesaid, if
the facts of the instant case are seen, it
would be noticed that the petitioner had
joined the services in the year 1982 and
he superannuated on 31.01.2022 after
putting in a service of more than 39
years, 11 months and 23 days.

17. It is not the case of the
respondents that the Department was not
aware of the said criminal case bearing No.
207 of 2005 pending against the petitioner.
It is also not disputed by the respondents
that the charge sheet in the said case was
filed in the year 2006 and the matter is still
engaging the attention of the Court
concerned. Whether any reasonable case is
made out is for the Court concerned to look
into the matter but at the same time, after
more than 16 years of the institution of the
said case and where the petitioner has
superannuated on 31.01.2022, it had to be
considered objectively by the Authorities as
to whether there is reasonable material to
arrive at a finding that the petitioner is
somewhat involved in a serious crime. In
case if it was so then under what
circumstances, the petitioner was allowed
to
continue
in
service
without
any
departmental proceedings, are all relevant
issues,
which
ought
to
have
been
considered but unfortunately this aspect of
the matter has not been considered by the
Authority.

18. A coordinate Bench of this Court
in the case of Devendra Kumar Sharma
(supra) has noticed the aforesaid aspect in
the following paragraphs which reads as
under:-

"21.
Thus,
from
the
aforesaid
deliberation, it is evident that to withhold
the full pension or any part of pension, the
crime of which the pensioner is charged
must be a 'serious crime'. If the crime
alleged against the pensioner, does not fall
within the ambit of 'serious crime', the
Governor or the State Government cannot
withhold the pension or any part of it or
gratuity of the pensioner.

22. Though, the Full Bench has held in
para nos.-66 to 69 of the judgment that the
954 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of action to the pensioner would
arise after the order is passed by the
competent authority upon conclusion of the
proceedings and findings returned thereon,
but the Full Bench in para no.31 of the
judgment has observed that mere pendency
of
criminal
case
or
disciplinary
proceedings is not sufficient to withhold or
withdraw pension under Article 351 of
Civil Service Regulations.

23. Further, in para no. 39 of the
judgment it has been observed that the
expression 'serious crime' in the context of
service
jurisprudence
involving
the
government servant refers to any act or
omission which in the opinion of the
competent authority is serious enough and
calls for punitive action in terms of Article
351. It further holds that the quantum of
sentence is not relevant but the nature of
the offence and the degree of involvement
of
the
government
servant
in
the
commission or omission of the crime is
relevant.

24. Since, the Full Bench in para
no.31 of the judgment has held that mere
pendency of criminal case or disciplinary
proceedings is not sufficient to withhold or
withdraw pension under Article 351 of the
Civil Service Regulations and further
elaborated expression 'serious crime' in
para no.39 of the judgment, therefore, from
the conjoint reading of the aforesaid two
paragraphs of the judgment, it can be
safely culled out that the competent
authority while withholding the gratuity
and pension of the pensioner should apply
its mind to see whether the nature of crime
in which the pensioner is involved comes
within the ambit of 'serious crime' or not.
In doing so, the competent authority must
also bear in mind that whether the
complaint and charge sheet against the
pensioner was filed during the service
period, and if the allegations in the
complaint
and
charges
against
the
petitioner fall within the ambit of 'serious
offence'
which
is
unbecoming of
a
Government Servant, then how and in what
contingency, the pensioner was allowed to
continue in employment even though the
department knew of the pendency of
criminal case against the pensioner, and
whether in such circumstances, it would be
appropriate to withhold gratuity and
pension of the pensioner on the ground of
pendency of criminal case against him.

25. Once, the competent authority on
the subjective satisfaction of the case holds
in the light of paragraph nos. 31 & 39 of
the full Bench Judgment and observation
made above that the crime which is alleged
against the pensioner falls within the ambit
of 'serious crime', the opinion of the
competent authority would be final and the
pensioner has to wait till the conclusion of
disciplinary or judicial proceeding, and the
Court should constraint to interfere with
the finding of the competent authority
unless the finding is without application of
mind
or
is
based
on
irrelevant
considerations or is perverse or is
otherwise not sustainable in law.

26. Now, coming to the facts of this
case,
the
competent
authority
had
knowledge about the filing of charge sheet
against the petitioner in the criminal case
on 02.02.2011, and the petitioner was
allowed to continue in service thereafter for
about
09
years
till
retirement
i.e.
31.12.2020; yet it passed only one-line
order that "10% gratuity and final pension
of the petitioner is withheld due to
pendency of criminal case". The impugned
order does not reflect any application of
mind by the competent authority nor there
is any finding that the offence alleged
against the petitioner falls within the
category of 'serious crime' to entitle it to
2 All. Constable Mahesh Chandra (Mahesh Singh) Vs. State of U.P. & Ors.
955
invoke the power under Article 351 of Civil
Service Regulations.

27.
This
Court
in
normal
circumstances would have remanded the
matter to the competent authority, but
considering the fact that the charge sheet in
the criminal case had been filed on
02.02.2011 and the petitioner was allowed
to continue in service thereafter about 09
years till retirement, i.e, 31.12.2020,
therefore, this Court believes that the
competent authority was of the opinion that
the nature of crime in which the petitioner
has been charge-sheeted is not 'Serious
Offence' so as to warrant any disciplinary
proceeding against the petitioner, and
accordingly, he was allowed to continue in
service
uninterruptedly
till
retirement.
Therefore, in view of paragraph-31 of the
Full Bench judgment of this Court in the
case of Shivagopal & others (supra), this
Court believes that the order impugned is
not sustainable and is, accordingly, set
aside with the direction to the respondents
to release 10% unpaid gratuity and fix and
pay final pension including arrears to the
petitioner within three months from the
date of production of a certified copy of
this order. "

19. Even in Uday Narayan Ojha
(supra), this aspect has been considered in
the following paragraphs which reads as
under:

"8. The power of State to withhold
pension and gratuity, therefore, must be
exercised strictly as per the applicable
law and if the State action is not found to
be in consonance with it, the withholding
of gratuity would violate Article 300-A of
the Constitution of India. The denial of
such constitutional right, therefore, would
be liable to be interfered with by this
Court
under
Article
226
of
the
Constitution of India.

9. Even otherwise, the period of 4
years is a reasonable period from the
date of the event, leading to submission
of charge-sheet and the employee cannot
be made to suffer for any un-explained or
undue delay on the part of the State or
the investigating agency. It is, otherwise,
not shown by the respondents that such
delay was attributed to any act or
omission on part of the petitioner. The
right of State to proceed in accordance
with law, is otherwise available by virtue
of
Article
351
of
Civil
Services
Regulations if the charges are found
proved in judicial proceedings and the
public
interest
also
would
not
be
adversely affected, if the gratuity due is
paid to the government servant. In view
of the above discussions, this Court has
no hesitation in holding that action of
respondents in withholding payment of
gratuity to petitioner is wholly illegal,
arbitrary and cannot be sustained.

10. Writ petition succeeds and is
allowed. The order dated 28.1.2012
passed by the respondent no. 3, so far
as it relates withholding of gratuity
payable to petitioner is concerned, is
set aside. A writ of mandamus is issued
to the respondents to forthwith release
the
withheld
amount
of
gratuity
together with 6% interest. In case the
amount is not paid within four months
from today, the petitioner shall be
entitled to enhanced rate of interest at
the rate of 8% per annum, and it shall
be open for the authorities of the State
to realise the additional interest from
the
salary
of
the
officer
found
responsible for not ensuring release of
gratuity to petitioner in terms of this
order. .."
956 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In light of the aforesaid and in
view of the fact that from the perusal of the
impugned order, the gratuity which has
been withheld is only on account of the
pendency of the criminal case and it does
not indicate that there is any serious
deliberation regarding the fact as to
whether the petitioner was involved in a
serious crime and the aspects which have
been noted above especially in light of the
Full Bench Decision of Shiv Gopal
(supra), Devendra Kumar Sharma (supra)
and Uday Narayan Ojha (supra) which
have been reproduced hereinabove. The
impugned order is apparently non-speaking
and does not reflect any application of
judicial mind. It was incumbent upon the
Authorities to pass appropriate orders only
taking into consideration the law laid down
by this Court in the case of Shiv Gopal
(supra).

21. Apparently, the Authorities have
not applied their judicial mind nor have
considered the case of the petitioner in
light of the dictum of the full bench
decision, accordingly, in the aforesaid
circumstances, the impugned order in so
far as it relates to withholding the
gratuity
of
the
petitioner
is
not
sustainable.

22. In the aforesaid circumstances,
the matter is remitted to the Authority
concerned and the petitioner is permitted
to file a detailed representation alongwith
a copy of this judgment within two weeks
raising the issue before the Authority
concerned who shall consider the said
representation and pass a reasoned and
speaking order taking note of the decision
of this Court in the case of Shiv Gopal
(supra) as well as the observations made
in this judgment. The decision shall be
taken by the Authorities concerned within
a period of four weeks and it shall be
communicated to the petitioner.

23. The writ petition is allowed in
the aforesaid terms. In the facts and
circumstances, there shall be no order as
to costs.
----------
(2023) 2 ILRA 956
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 26819 of 2019
along with other connected cases

Eklavya Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anwar Ashfaq, Rina Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Departmental Inquiry -
U.P. Government Servant (Discipline &
Appeal) Rules, 1999: Rule 7 - In this St.
not even a single departmental inquiry for
major punishment is being conducted in
accordance with law. All the delinquent
employees are discharged repeatedly as
proper procedure is not followed. The
orders of the Supreme Court, of this Court as
well as the Government Orders issued by the
Chief Secretary, Government of U.P. appear to
be falling on deaf ears. (Para 166)

In the leading Writ Petition No. 26819 of 2019,
the petitioner has approached this Court
challenging the impugned punishment order
dated
02.08.2019
passed
by
the
St.
Government. Earlier also, the petitioner was
punished by order dated 04.04.2013. The said
order dated 04.04.2013 was set aside by this
Court in Writ Petition No. 30422 (S/B) of 2016.