# Devendra Kumar Sharma v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 635
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-08
- **Case number:** Writ A No. 15093 of 2020
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-sharma-v-state-of-u-p-ors-46676
- **Pages:** 9

## Headnote

A. Service Law - Pension and Gratuity -
Pendency of Criminal Case - Civil Service
Regulations,1956 - Article 351 & 351-A - Mere
pendency of criminal case or disciplinary
proceedings is not sufficient to withhold or
withdraw pension. Article 351 confers power upon
the State Government to withhold or withdraw
pension of a pensioner on two grounds; the pensioner
is convicted of serious crime; secondly, he is guilty of
grave misconduct; but not otherwise. Article 351-A
empowers the Governor to withhold or withdraw a
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: (i) guilty of grave misconduct or (ii)
to have caused pecuniary loss to Government by
misconduct or negligence during his service. (Para 15,
17, 20)

B. Words and Phrases - 'serious crime' - The
expression 'serious crime' has to be understood
in
the
context
of
service
jurisprudence
involving the Government servant. It may be 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 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 or omission of
the crime which is relevant to determine whether the
act of the employee falls in the ambit of 'serious
crime'. (Para 16, 23)

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. (Para
21)

The competent authority while withholding the
gratuity and pension of the pensioner should apply its
mind to determine the nature of crime. It should be
born in mind that whether the complaint and chargesheet 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', 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 agai

## Text

11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
635

13. Generally speaking, in the opinion of
this Court, the literal rule or the golden rule of
construction is the preferred rule and where the
language of the statute is unambiguous, the rule
is always a safe guide. The statute is to be read
as it is, and not what it ought to be. It is in cases
of ambiguities or a literal reading, leading to an
absurd conclusion, that one has to look to other
rules of construction like the rule in Heydon's8
case. To my understanding, the rule and the
exception both in Section 27 of the Act of 2009
are very clear. The provisions of Section 27
generally puts in place a strict prohibition on
deployment of teachers on non-teaching duties
and then carves out exceptions in favour of
certain classes of duties to which the rule
prohibiting their deployment would not apply.
Election
to
local
authorities,
the
State
Legislature and the Parliament are one of those
exceptions. The exception, prima facie, is not
couched in words that would limit the exception
coming alive only after an election notification
is issued, and not earlier.

14. It is well known and acknowledged
that elections to these respective bodies, which
form the government in a democracy, are the
most solemn of duties for every citizen. There
could be citizens engaged in kinds of avocations,
who, under the law, cannot be spared even for
the purpose of elections. So far as teachers are
concerned, the legislature in its wisdom has not
thought that they cannot be spared for the
performance of the solemn duty, where any
work relating to elections is concerned. For
other
purposes,
they
have
been
spared.
Notwithstanding the opinion of this Court,
which accords with the opinion of the learned
Single Judge in Kanika Banshiwal there being
expressions of contrary and clear opinions by the
Division Benches in Sunita Sharma and Uttar
Pradeshiya Prathmik Shikshak Sangh, and
the learned Single Judges in Kuldip Singh,
Ramji Mishra on one hand and Kanika
Banshiwal on the other, it would not be proper
for me sitting singly to enter judgment,
upholding one or the other view. The approved
and sound course is to refer the matter to a larger
Bench, where this difference of opinion may be
resolved.

15. In the circumstances, the following
questions are referred for consideration by a
larger Bench :

(1). Whether the provisions of Section
27 of the Right of Children to Free and
Compulsory Education Act, 2009 permit the
deployment of teachers to do any kind of duties
relating to elections before the issue of an
election notification relating to a Local Body, a
State Assembly or the Parliament under
appropriate provisions of the law?

(2). Whether before or after the issue
of notifications relating to elections to a Local
Body, a State Assembly or the Parliament, can
teachers be deployed to any kind of electionrelated work on teaching days or during teaching
hours?

16. Let the papers of both these cases be
placed before His Lordship, the Hon'ble The
Chief Justice for constituting a larger Bench by
the Office, at the earliest.
----------
(2021)11ILR A635
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 15093 of 2020

Devendra Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhawani Prasad Shukla
636 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and Gratuity -
Pendency of Criminal Case - Civil Service
Regulations,1956 - Article 351 & 351-A - Mere
pendency of criminal case or disciplinary
proceedings is not sufficient to withhold or
withdraw pension. Article 351 confers power upon
the State Government to withhold or withdraw
pension of a pensioner on two grounds; the pensioner
is convicted of serious crime; secondly, he is guilty of
grave misconduct; but not otherwise. Article 351-A
empowers the Governor to withhold or withdraw a
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: (i) guilty of grave misconduct or (ii)
to have caused pecuniary loss to Government by
misconduct or negligence during his service. (Para 15,
17, 20)

B. Words and Phrases - 'serious crime' - The
expression 'serious crime' has to be understood
in
the
context
of
service
jurisprudence
involving the Government servant. It may be 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 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 or omission of
the crime which is relevant to determine whether the
act of the employee falls in the ambit of 'serious
crime'. (Para 16, 23)

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. (Para
21)

The competent authority while withholding the
gratuity and pension of the pensioner should apply its
mind to determine the nature of crime. It should be
born in mind that whether the complaint and chargesheet 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', 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. (Para 24)

C. The stage of passing the order under Article
351/351-A by the competent authority arises
only on the conclusion of the proceedings and
not during the pendency of disciplinary or
judicial proceedings. If the competent authority
concludes that the pensioner is guilty of grave
misconduct or is convicted of 'serious crime' or has
caused pecuniary loss to the Government, the
consequence u/Article 351/351A would follow. The
opinion of the competent authority would be final and
the pensioner has to wait till the conclusion of
disciplinary or judicial proceeding. The cause of
action to the Government servant of taking
remedy would arise after the order is passed by
the competent authority upon conclusion of the
proceedings/enquiry and not during pendency
of the proceedings or enquiry. (Para 18)

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.
(Para 22, 25)

D. Explanation (b) appended to Article 351-A -
Criminal proceedings shall be deemed to be instituted
on the date on which complaint is made, or a chargesheet is submitted to the criminal Court. (Para 19)

In the present case, the competent authority had
knowledge about the filing of charge-sheet
against the petitioner in the criminal case on
2.2.2011, and he was allowed to continue in
service
thereafter
for
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 was not that of
a 'Serious Offence' so as to warrant any
disciplinary proceeding against petitioner, and
accordingly, he was allowed to continue in
service. (Para 26, 27)
11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
637
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 invoke the power
u/Article 351 of Civil Service Regulations. (Para 26)

Writ petition allowed. (E-4)

Precedent followed:

1. Shivagopal & ors. Vs St. of U.P. & ors. , 2019 (5)
ADJ 441 (FB) (Para 12)

Present
petition
assails
order
dated
17.11.2020,
passed
by
Superintendent
of
Police, Baghpat.

(Delivered by Hon'ble Saral Srivastava, J.

1. Heard learned counsel for the petitioner
and learned Standing Counsel for the respondent
nos. 1 to 5.

2. The petitioner, through the present writ
petition, has assailed the order dated 17.11.2020,
passed by respondent no.2-Superintendent of
Police, Baghpat, by which he has refused to
grant final pension and full gratuity to the
petitioner on the ground of pendency of criminal
case against him.

3. Brief facts of the case are that the
petitioner was appointed as Constable (Civil
Police), Uttar Pradesh on 13.08.1980 and retired
on 31.12.2020.

4. It appears that during service on
07.12.2010, an FIR under Section 324/506 I.P.C.
was registered against the petitioner on the
complaint of his brother, namely, Ratan Kumar
Sharma with an allegation that the petitioner and
his family members along with some other antisocial elements came to his house and had
beaten him and his family members. In the said
incident, the daughter of the complainant had
suffered injuries.

5. According to the petitioner, the charge
sheet in the said criminal case was submitted by
the police on 02.02.2011 under Sections 324/506
I.P.C. against him and his wife, and due to the
pendency of the said criminal case, his final
pension and full gratuity have not been
disbursed, rather he had been sanctioned the
provisional pension and 90% of the gratuity.

6. In the counter affidavit filed by the
respondents, in paragraph no.5, it is stated that
the petitioner had been awarded adverse entry by
the punishment order No.Da-8/2001, dated
15.05.2001 of Senior Superintendent of Police,
District Dehradun, and order No.Na-242/2010
dated 31.01.2011 of Deputy Inspector General
of Police, District Meerut. Besides the above, a
criminal case being Case Crime No.1787 of
2010, under Sections 324/506 I.P.C., P.S.
Sihanigate, District Ghaziabad is also registered
against the petitioner, which is pending before
the Court of Chief Judicial Magistrate-III,
Ghaziabad.

7. In paragraph no.11 of the counter
affidavit, It is stated that Government Order
No.Sa-3-1713/Das-87-933/89, dated 28.07.1980
provides that during the pendency of criminal
proceedings or any judicial proceedings, only
provisional pension is paid and payment of
gratuity is withheld.

8. Challenging the aforesaid order, learned
counsel for the petitioner submitted that the
order impugned withholding 10/% gratuity and
not granting full pension to the petitioner on the
ground of pendency of criminal case is not
sustainable for the reason that the gratuity, as
well as full pension, can be withheld only when
an employee is guilty of grave misconduct or
convicted of 'serious offence'.
638 INDIAN LAW REPORTS ALLAHABAD SERIES

9. He submits that the authority has to
apply its mind and record a prima facie
satisfaction that the criminal charge leveled
against the petitioner will fall within the ambit
of 'serious crime', and once that be so, only then
the authority can withhold the payment of
gratuity and full pension. Accordingly, he
submits that the impugned order does not reflect
any application of mind by the authority or any
finding of the authority recording prima facie
satisfaction that the charges leveled against the
petitioner fall within the ambit of 'serious crime'.
Thus, he submits that it is a fit case where the
authority should be directed to release the full
gratuity and re-fix the final pension along with
interest.

10. Per-contra, learned Standing Counsel
would contend that the authorities are well
within their domain to withhold the gratuity and
refuse to grant full pension because of Article
351-A of Civil Service Regulation. He submits
that admittedly, a criminal case under Sections
324/506 I.P.C. is pending against the petitioner
in which charge sheet had been submitted on
02.02.2011, therefore, the authorities have
rightly withheld 10% gratuity and granted
provisional pension instead of full pension.

11. I have heard learned counsel for the
parties and perused the record.

12. Before dealing with the contentions
advanced by both the counsels, it would be apt
to refer to the judgment of Full Bench of this
Court in the case of Shivagopal and others Vs.
State of U.P. and others, reported in 2019 (5)
ADJ 441 (FB), wherein this Court considered
the question (i) whether the government servant
is entitled to full pension and gratuity on and
during the pendency of judicial proceedings; (ii)
whether the government servant is entitled to
full
pension/death-cum-retirement
gratuity
before the conclusion of the disciplinary
proceedings/or judicial proceedings and final
orders being passed thereon by the competent
authority.

13. In this regard, relevant paragraph
nos.31, 36, 37, 38, 39 & 40 of the Full Bench
judgment are reproduced here-in-below:

"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.

36. Expression 'serious crime' would
include offences having dangerous possible
consequences. Black Law Dictionary defines
serious offence as violation of law that is
significant in effect and carries more than a six
months punishment.

37. Section 2 (54) of Juvenile Justice
Act, 2015, defines 'serious offence':

"serious
offences"
includes
the
offences for which the punishment under the
India Penal Code or any other law for the time
being in force, is imprisonment between three to
seven years."

38.
The
expression
'judicial
proceedings' includes civil cases, plausible civil
cases where pension can be withheld/withdrawn
would include matrimonial disputes, succession
cases, right and entitlement of spouses and their
children, domestic violence, civil death etc.
involving the government servant.

39. The expression 'serious crime' has
to be understood in the context of service
jurisprudence involving the government servant.
It may be any act or omission which in the
opinion of the competent authority is serious
enough and calls for punitive action in terms of
11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
639
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: (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
purpose of withholding/withdrawing pension.
Article 351-A reads thus:-

"351-A [substituted vide notification
dated 6 September 1961]. 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 re-employment,
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."

14. The Full Bench also considered the
question, the stage at which the government
servant is entitled to the full pension or the
640 INDIAN LAW REPORTS ALLAHABAD SERIES
gratuity. In this regard, relevant paragraph nos.
66, 67 & 69 of the judgment is reproduced herein-below:-

"66. The question that arises is
whether the government servant/pensioner can
seek intervention at a stage before the
competent authority has had the occasion to
pass appropriate order upon conclusion of the
disciplinary/ judicial proceedings/or enquiry
by Administrative Tribunal. We are of the
opinion that such a course is not available to
the pensioner and if allowed would entail
serious consequences, otherwise not mandated
by the Regulations. It is not open to the
government servant/pensioner, in view of the
conjoint reading of the Articles to preempt the
pending proceedings/enquiry by walking away
with pension/gratuity without awaiting the
outcome/conclusion
of
the
disciplinary/judicial proceedings/enquiry. The
competent authority upon conclusion of the
proceedings would be in a position to apply its
mind
on
the
outcome
of
the
proceedings/enquiry and pass order thereon
either withholding/withdrawing/ reduction of
pension or directing recovery of pecuniary
loss from pension under Articles 351/ 351-A of
the Civil Service Regulations.

67. Article 351-AA/919-A came to be
incorporated later (1980), the rule making
authority was fully aware of the existing
provisions, in particular, Article 351/351-A,
but the rule making authority, in view of the
plain and unambiguous language used therein
(Article 351-A), while incorporating Article
351-AA/919-A, did not consider it appropriate
to mandate the release of full pension/gratuity
to the government servant until conclusion of
the
proceedings.
The
entitlement
to
provisional pension and deferment of gratuity
during pendency of the proceedings was not
made subject to any further conditions at that
stage. The stage was deferred until orders
thereon was required to be passed by the
competent authority recording satisfaction or
otherwise
upon
conclusion
of
proceedings/enquiry.

69. It, therefore, follows that the
stage of passing appropriate order under
Article 351/351-A by the competent authority
is mandated at the conclusion of the
proceedings and certainly not at the stage
during pendency of the disciplinary/judicial
proceedings.The cause to the pensioner would
arise after the order is passed by the
competent authority upon conclusion of the
proceedings and findings returned thereon. In
the opinion of the competent authority if the
pensioner is guilty of grave misconduct, or
convicted
of
serious
crime,
or
caused
pecuniary loss, the consequence under Article
351/351-A would follow. The government
servant/ pensioner would have to wait until
such an order is passed before claiming full
pension and gratuity. In other words the cause
to the government servant of taking remedy
would arise after order of the competent
authority is passed upon conclusion of the
proceedings/enquiry and not during pendency
of the proceedings/enquiry."

15. It would be apt to refer to para no.31 of
the Full Bench judgment where it is held that
Article 351 confers power upon the State
Government to withhold or withdraw pension of
a pensioner on two grounds; the pensioner is
convicted of serious crime; secondly, he is guilty
of grave misconduct; but not otherwise. The Full
Bench further clarified that mere pendency of
criminal case or disciplinary proceedings is not
sufficient to withhold or withdraw pension under
Article 351.

16. Para no.39 of the judgement deals with
the expression 'serious crime'. The Full Bench
noted that the expression 'serious crime' has to
be understood in the context of service
jurisprudence involving the government servant.
It may be any act or omission which in the
11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
641
opinion of the competent authority is serious
enough and calls for punitive action in terms of
Article 351. The Full Bench noted that 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 or omission of the crime which is
relevant to determine whether the act of the
employee falls in the ambit of 'serious crime'.

17. It would be relevant to have a glance at
Article 351-A which empowers the Governor to
withhold or withdraw a 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: (i) guilty of grave
misconduct or (ii) to have caused pecuniary loss
to Government by misconduct or negligence
during his service.

18. The Full Bench has held in para-69 of
the judgment that the stage of passing the order
under Article 351/351-A by the competent
authority arises only on the conclusion of the
proceedings and not during the pendency of
disciplinary or judicial proceedings. If the
competent authority concludes that the pensioner
is guilty of grave misconduct or is convicted of
serious crime or has caused pecuniary loss to the
government,
the
consequence
under
Article351/351A would follow. Consequently,
the cause of action to the government servant of
taking remedy would arise after the order is
passed by the competent authority upon
conclusion of the proceedings/enquiry and not
during pendency of the proceedings or enquiry.

19. In the context of the present case, it is
also pertinent to notice explanation (b) appended
to Article 351-A which defines when the judicial
proceedings shall be deemed to have been
instituted.
According
to
which,
criminal
proceedings shall be deemed to be instituted on
the date on which complaint is made, or a
charge-sheet is submitted to the criminal Court.

20. From the conjoint reading of Articles
351 & 351-A of Civil Service Regulations, it is
explicit that one of the conditions in which the
State Government/Governor can withhold or
withdraw pension or part thereof, whether
permanently or for a specified period or to order
recovery from a pension of the whole or part of
any pecuniary loss caused to the Government if
the pensioner is convicted of 'serious crime'.
Besides it, there are several other instances,
which have no relevance in the context of the
present case.

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 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
642 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 chargesheeted 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
11 All. No. 6647364-A Ex-Hav Clerk (Stores) Ram Naresh Ram Vs. The U.O.I. & Ors.
643
months from the date of production of a certified
copy of this order.

28. Consequently, for the reasons given
above, the writ petition is allowed with no orders
as to cost.
----------
(2021)11ILR A643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 15281 of 2021

No. 6647364-A Ex-Hav Clerk (Stores) Ram
Naresh Ram ...Petitioner
Versus
The U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyajit Mukerji

Counsel for the Respondents:
A.S.G., Sri Sanjay Kumar Om

A. Service Law - Armed Forces - Promotion -
Armed Forces Tribunal Act, 2007: Section 14.

Armed Forces Tribunal Act, 2007 - Section 30
- Maintainability - Though u/s 30 no person
has a right of appeal against the final order
or decision of the Tribunal to the Supreme
Court other than those falling u/s 30(2) of
the Act, but it is statutory appeal which lies
to the Supreme Court. Thus, against the
impugned order the petitioner has a right of appeal
before the Hon'ble Supreme Court u/s 30 read with
Section 31 of the Act. (Para 9)

The scheme of Section 31 being that an application
for grant of a certificate must first be moved before
the Tribunal, before the aggrieved party can
approach Supreme Court for the grant of leave to
file an appeal. The purpose underlying the
provision appears to be that if the Tribunal itself
grants a certificate of fitness for filing an appeal, it
would be unnecessary for the aggrieved party to
approach Supreme Court for a leave to file such an
appeal. An appeal by certificate would then be
maintainable as a matter of right in view of Section
30 which uses the expression "an appeal shall lie to
the Supreme Court". (Para 2)

The controversy involved before the Tribunal in the
present case was w.r.t. the rejection of statutory
complaint and setting aside the annual confidential
report of the petitioner for the year 1988 and
promotion to him to the rank of Naib Subedar from
ante date of seniority alongwith all consequential
benefits. (Para 10)

Writ petition dismissed leaving it open for the
petitioner to file an appeal before the Hon'ble
Supreme Court in accordance with the provisions of
The Armed Forces Tribunal Act, 2007. (Para 11)
(E-4)

Precedent followed:

1. U.O.I. & ors. Vs Major General Shri Kant Sharma
& anr., (2015) 6 SCC 773 (Para 2)

Precedent distinguished:

1. Balkrishna Ram Vs U.O.I. & anr., (2020) 2 SCC 442
(Para 3)

Present petition assails order 05.02.2018,
passed by the Armed Forces Tribunal, Regional
Bench, Lucknow.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard Sri Satyajit Mukerji, learned
counsel for the petitioner and Sri Sanjay Kumar
Om, learned Central Government standing
counsel.

2. Against the impugned order dated
05.02.2018 in O.A. No.160 of 2016, passed by
the Armed Forces Tribunal, Regional Bench,
Lucknow, under Section 14 of the Armed Forces