# Durga Prasad Pathak v. State of U.P

- **Citation:** (2023) 3 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Case number:** Writ A No. 577 of 2011
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-prasad-pathak-v-state-of-u-p-49780
- **Pages:** 6

## Headnote

A. Service Law - Non-payment of post
retiral
dues
-
Criminal/judicial
proceedings
-
Unless
departmental
proceedings have been initiated or some
judicial
or
administrative
proceedings
have been initiated for the purpose of
determining the guilt of the government
servant during the course of his service,
mere pendency of a criminal proceedings
cannot be a ground for taking any action
against the petitioner w.r.t. payment of
his post retiral dues. (Para 9)

Perusal to the GO dated 28.10.1980 shows that
respondents have misread the GO which relates
only to the departmental judicial proceedings or
the
vigilance
proceedings
or
the
other
proceedings, however, in the case in hand, it is
clear from the record that no charge sheet has
been filed against the petitioner, although the
matter is of 1997. Speedy trial is the
fundamental right of the accused and
St.should promote that in concluding the
criminal proceedings, if at all, initiated
against the government servant. Merely
by lodging an F.I.R. without there being
any charge sheet, it cannot be said that
judicial criminal proceedings are pending
against the petitioner. The criminal case of
such nature should not be allowed to linger for
decades. (Para 10)

B. No provision has been cited before this
Court to show that mere lodging an F.I.R.
against the petitioner way back in the
year
1997
without
there
being
any
progress
in
the
investigation,
the
petitioner can be debarred from his
pensionary benefits. There is no legal
impediment in any service rules to debar the
petitioner from releasing the remaining post
retiral dues. Accordingly, a writ of mandamus is
issued directing the opposite parties to release
the remaining post retiral dues of the petitioner
such as gratuity, regular pension etc. within a
period of three months from the date of
certified copy of this order. (Para 11)

Till the payment of post retiral dues to him, the
petitioner is allowed to get the benefit of
provisional pension within the aforesaid period.
(Para 12)

Writ petition allowed. (E-4)

Precedent followed:

Harnam Singh Yadav Vs St.of U.P., 2012 SCC
OnLine All 3646 (Para 7)

## Text

110 INDIAN LAW REPORTS ALLAHABAD SERIES
Srivastava that the Bank has suffered any
financial loss due to the conduct of the
appellant. The Bank had created a Housing
Loan, also on certain terms and conditions
evident from the loan agreement. At the most,
by selling the house purchased / constructed by
the money borrowed from the Bank, the
appellant has committed a breach of the
conditions of the loan agreement but the Bank
chose not to take any action for enforcement of
the conditions of the agreement. The Bank
continued to receive repayment of the loan by
making deductions of the amount of monthly
installment towards the repayment of the loan
from the salary or the subsistence allowance
paid to the appellant, for the entire duration of
24 years till the complete loan amount was
repaid to the Bank.

(24) Shri Srivastava has submitted that
the appellant's conduct is in violation of
Clause 19.5 of the Bipartite Agreement and it
amounts to a misconduct as per Clause
19.5(J) of the Bipartite Agreement. The
alleged Bipartite Agreement has not been
placed on record and there is nothing on
record to indicate that the appellant was a
party to the agreement or the conditions of
the agreement were otherwise binding on the
applicant. Moreover, assuming the conditions
of the Bipartite Agreement were binding on
the appellant, the breach of the conditions of
the
agreement
cannot
amount
to
a
misconduct warranting disciplinary action as
an
agreement
cannot
be
equated
as
Disciplinary Rules or Regulations through
which penal consequences may be imposed
upon an employee.

(25) In view of the aforesaid discussions,
we are of the view that the entire Housing
Loan has been repaid by the appellant, no loss
has been occasioned to the Bank by the
appellant having sold away the house and,
therefore, the finding of the Hon'ble Single
Judge that a serious loss was caused to the
Bank by the conduct of the appellant in selling
away the property, is not supported by the
material available on record and is not
sustainable. The observation of the Hon'ble
Single Judge that the property had been sold
without permission of the Bank is correct, but
the observation that the same was done
without knowledge of the Bank, is incorrect as
from the letter dated 27.10.1989, the appellant
had informed the Bank that he would repay
the Bank's money after selling away the house.
Moreover, the charge sheet did not contain a
charge that any loss was caused to the Bank by
the conduct of the appellant and there is
nothing on record to support the finding of the
Hon'ble Single Judge that serious loss was
caused to the Bank by the conduct of the
petitioner.

(26) In view of the aforesaid discussions
the instant Special Appeal is allowed. The
judgment and order dated 04.06.2014 is
hereby set aside and the Writ Petition No.3531
of 2000 is allowed. The dismissal order dated
30.09.1999 and the Appellate order dated
20.03.2000 is hereby quashed.

(27) All the necessary consequences
shall follow. However, there will be no order
as to costs.
----------
(2023) 3 ILRA 110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 577 of 2011

Durga Prasad Pathak ...Petitioner
Versus
State of U.P. ...Respondent
3 All. Durga Prasad Pathak Vs. State of U.P.
111
Counsel for the Petitioner:
Vivek Tripathi

Counsel for the Respondent:
C.S.C.

A. Service Law - Non-payment of post
retiral
dues
-
Criminal/judicial
proceedings
-
Unless
departmental
proceedings have been initiated or some
judicial
or
administrative
proceedings
have been initiated for the purpose of
determining the guilt of the government
servant during the course of his service,
mere pendency of a criminal proceedings
cannot be a ground for taking any action
against the petitioner w.r.t. payment of
his post retiral dues. (Para 9)

Perusal to the GO dated 28.10.1980 shows that
respondents have misread the GO which relates
only to the departmental judicial proceedings or
the
vigilance
proceedings
or
the
other
proceedings, however, in the case in hand, it is
clear from the record that no charge sheet has
been filed against the petitioner, although the
matter is of 1997. Speedy trial is the
fundamental right of the accused and
St.should promote that in concluding the
criminal proceedings, if at all, initiated
against the government servant. Merely
by lodging an F.I.R. without there being
any charge sheet, it cannot be said that
judicial criminal proceedings are pending
against the petitioner. The criminal case of
such nature should not be allowed to linger for
decades. (Para 10)

B. No provision has been cited before this
Court to show that mere lodging an F.I.R.
against the petitioner way back in the
year
1997
without
there
being
any
progress
in
the
investigation,
the
petitioner can be debarred from his
pensionary benefits. There is no legal
impediment in any service rules to debar the
petitioner from releasing the remaining post
retiral dues. Accordingly, a writ of mandamus is
issued directing the opposite parties to release
the remaining post retiral dues of the petitioner
such as gratuity, regular pension etc. within a
period of three months from the date of
certified copy of this order. (Para 11)

Till the payment of post retiral dues to him, the
petitioner is allowed to get the benefit of
provisional pension within the aforesaid period.
(Para 12)

Writ petition allowed. (E-4)

Precedent followed:

Harnam Singh Yadav Vs St.of U.P., 2012 SCC
OnLine All 3646 (Para 7)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Shri Vivek Tripathi, learned
counsel for the petitioner and learned
Standing Counsel for the State.

2. Through this petition, the petitioner
has
sought
a
writ
of
mandamus
commanding the opposite parties to release
the regular pension, gratuity and insurance
in favour of the petitioner along with
interest.

3. Brief facts of the case is that the
petitioner was initially appointed on
19.08.1970 in PAC and after training he
was posted in 30th Battalion P.A.C.,
Gonda. The petitioner has retired on
31.05.2010 after completing the age of
superannuation, however, after retirement
only GPF, Leave Encashment and Interim
Pension have been paid to the petitioner
and regular pension, gratuity and insurance
have not been paid to the petitioner.

4. Learned counsel for the petitioner
further submits that non-payment of the
post retiral dues by the State Government is
arbitrary and violative of Article 21 of the
Constitution of India.
112 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Per contra, Shri Vinod Singh,
learned Standing Counsel has submitted
that there was legal impediment in
finalizing the pension as well as gratuity as
an F.I.R. was lodged against the petitioner
which was registered as case crime No.
774/1997
under
Sections
223/224/290/294/406
I.P.C.
alleging
escaping of the accused persons from
police custody along with other persons.

6. It has been further submitted by the
learned Standing Counsel that since the
investigation in that case qua the petitioner
is pending, therefore, due to this legal
impediment, the remaining post retiral dues
could not be paid to the petitioner. In
support of his submissions, he has relied on
the government order 3-1679/10-80-909-79
dated 28.10.1980 which provides that
during pendency of the criminal/judicial
proceedings
against
the
delinquent
employee, payment of gratuity shall not be
made unless the final decision is not taken
upon the inquiry against the delinquent
employee.

7. Learned counsel for the petitioner
while rebutting the argument has relied on
the judgment of the Coordinate Bench of
this Court passed in the case of "Harnam
Singh Yadav v. State of U.P., 2012 SCC
OnLine All 3646", and in the case of
"Bhagwat Prasad Yadav Vs. State of U.P",
Writ Petition No. 3150 (S/S) of 2011, and
has submitted that pendency of mere
criminal proceedings would not constitute a
bar to release the post retiral dues of the
petitioner.

8. Perusal of the report submitted by
the District Judge, Gonda dated 17.12.2022
shows that on the complaint of the
complainant Sageer Ahmad against the
accused persons namely Shiv Pujan Tiwari,
Durga Prasad Pathak, Abhay Nath Singh
and Smt. Maya Devi, case crime No.
774/1997, under Sections 222/223/224
I.P.C., P.S. Kotwali Nagar, District Gonda
was registered and after completion of
investigation, charge sheet was filed on
07.11.1997 only against Shiv Pujan tiwari
whereas investigation continued against the
other
accused
persons
including
the
petitioner. It is not disputed between the
parties that no charge sheet has been filed
against the petitioner.

9. In the case of "Harnam Singh
Yadav v. State of U.P., 2012 SCC OnLine
All 3646", this Court in para 4 to 9 has held
that:-

"3. The submission of the learned
Counsel
for
petitioner
is
that
the
aforementioned G.O. has been misread by
the authorities concerned. The aforesaid
G.O. relates only to the departmental
judicial
proceeding,
or
vigilance
proceeding or service tribunal proceeding
and it does not cover the criminal
proceedings, which are not connected with
the department.

4. It is further argued on behalf of
the petitioner that mere pendency of
criminal proceeding, cannot be a ground to
withheld the retiremental dues because if in
the trial, the case is proved against the
petitioner then he shall be punished in
accordance with law. He cannot be
punished by withholding his retiremental
dues.

5. Learned Counsel for opposite
party laid emphasis upon the G.O. dated
28.10.1980 in which in para 2 provisions
have been made regarding payment of
interim pension. A bare perusal of the
aforesaid para of the aforementioned G.O.
reveals that it relates to such government
servant against whom some departmental
3 All. Durga Prasad Pathak Vs. State of U.P.
113
judicial or administrative inquiry is pending
on the date of retirement. But it nowhere
provides that if criminal proceedings are
pending even then the said G.O. would be
applicable. Suffice, it would be to mention
that such a provision could not have been
made for the simple reason that unless
departmental
proceedings
have
been
initiated or some judicial or administrative
proceedings have been initiated for the
purpose of determining the guilt of the
government servant during the course of
his service, mere pendency of a criminal
proceedings cannot be a ground for taking
any action against the petitioner with
respect to payment of his post retiral dues.

6. Learned Counsel for petitioner
has placed reliance on a Division Bench
pronouncement of this Court in the case of
Bangali Babu Misra v. State of U.P.. [2003
(50) ALR 538.] In the said case the
petitioner was caught in a trap case and
subsequently he was suspended and in that
case the Court directed that the entire post
retiral dues of the petitioner including
pension, gratuity, leave encashment, group
insurance be paid to the petitioner.

7. Section 4(6) of the Payment of
Gratuity Act, 1972 reads as under,

"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 of any other
act of 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 provide
that such offence is committed by him in the
course of his employment."

8. A bare perusal of the aforesaid
section makes it abundantly clear that the
circumstances
as
enumerated
in
the
aforesaid section does not extended at all in
the case of the petitioner, therefore, the
order of stopping the gratuity of the
petitioner was not in accordance with law.
This Court in the case of Amod Prasad Rai
v. State of U.P., [2009 (122) FLR 350
(Alld.-L.B.).] has held that withholding of
gratuity
is
not
permissible
in
any
circumstance other than those enumerated
in section 4(6) of the Payment of Gratuity
Act and held that right to gratuity is a
statutory right. It is nowhere the case of the
opposite
party
that
because
of
the
aforementioned criminal proceeding any
loss was occasioned to the department or
such an offence was committed during the
course of his employment. It is also
nowhere the case of the opposite party that
any amount has to be recovered from the
petitioner as outstanding dues against him
towards the department. This Court in the
case of Radhey Shyam Shukla v. State of
U.P., [2009 (123) FLR 30 (Alld.).] has held
as under:

"Normally, as urged by the
learned
Standing
Counsel,
"judicial
proceedings" w, ould also include a
criminal trial. However, the meaning
ascribed to a word has to be given keeping
in mind the intention of the legislature and
the object which it sought to achieve while
using it. A leading of the aforesaid
provision shows that "judicial proceeding"
has been used for the purpose of any
administrative action or which may have
given rise to a "judicial proceeding"
relating to the conduct of the Government
114 INDIAN LAW REPORTS ALLAHABAD SERIES
servant. One of the main object of
withholding gratuity is to compensate the
Government the loss caused by the
Government servant in his functioning as
such. In the present case the criminal case
relates to two individuals and the trial
cannot in any manner fix responsibility of
any loss to the Government. In fact, there is
no case set up in the counter affidavit that
the decision in the pending criminal trial
between two individuals would in any way
enable the Government to realize any
alleged loss. In fact no loss has even been
attributed to the petitioner. A Division
Bench of this Court in the case of Bangali
Babu Misra v. State of U.P., [2009 (122)
FLR 350 (Alld.-LB.).] has considered the
effect of the Government order which has
been incorporated in the Rules and has
held that mere pendency of criminal
proceedings
would
not
authorise
withholding
of
post
retiral
benefits
including gratuity. The aforesaid decision
has been followed subsequently, in the case
of
Mahesh
Bal
Bhardwaj
v.
U.P.
Cooperative Federation Ltd.. [2007 (10)
ADJ 561.] "

10. Perusal of the aforesaid Govt.
Order
dated
28.10.1980
shows
that
respondents have misread the Govt. Order
which relates only to the departmental
judicial proceedings or the vigilance
proceedings or the other proceedings,
however, in the case in hand, it is clear
from the record that no charge sheet has
been filed against the petitioner, although
the matter is of 1997. Speedy trial is the
fundamental right of the accused and the
State should promote that in concluding the
criminal proceedings, if at all, initiated
against the government servant. Merely by
lodging an F.I.R. without there being any
charge sheet, it cannot be said that judicial
criminal proceedings are pending against
the petitioner. The criminal case of such
nature should not be allowed to linger for
decades.

11. No provision has been cited by the
learned Standing Counsel before this Court
to show that mere lodging an F.I.R. against
the petitioner way back in the year 1997
without there being any progress in the
investigation, the petitioner can be debarred
from his pentionary benefits, therefore, I
am of the view that the view taken by the
opposite party that due to this legal
impediment of pendency of a criminal case,
non-releasing of the post retiral dues of the
petitioner is not a reasonable order. There is
no legal impediment in any service rules to
debar the petitioner from releasing the
remaining post retiral dues. Accordingly, a
writ of mandamus is issued directing the
opposite parties to release the remaining
post retiral dues of the petitioner such as
gratuity, regular pension etc. within a
period of three months from the date of
certified copy of this order.

12. Till the payment of post retiral
dues to him, the petitioner is allowed to
get the benefit of provisional pension
within the aforesaid period. The final
pension of the petitioner shall be fixed
and shall be paid by the opposite parties
to the petitioner regularly thereafter. The
arrears of the post retiral dues which have
not been paid to the petitioner shall also
be paid within the aforeaid period of
three months.

13. Considering the fact that the
petitioner has retired in December, 2010
and his part post retiral dues have been
withheld since then without any justified
reasons, the opposite parties are directed to
pay 6% simple interest on the remaining
post
retiral
dues
to
the
petitioner.
3 All. Smt. Santoshi Devi Vs. State of U.P. & Ors.
115

14.
In
view
of
the
aforesaid
observations, the petition is allowed.
----------
(2023) 3 ILRA 115
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.03.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 1505 of 2015

Smt. Santoshi Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Nasir, Deo Raj Singh, Mohd. Yasin

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - Suppression of material facts
- Dying in Harness Rules, 1974; U.P.
Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974: Subrule C of Rule 2 - The jurisdiction of the
Supreme Court u/Article 32 and of the High
Court u/Article 226 of the Constitution is
extraordinary, equitable and discretionary.
It is well settled that a prerogative remedy
is not a matter of course. In exercising
extraordinary power, therefore, a writ court
will indeed bear in mind the conduct of the
party who is invoking such jurisdiction. If
the applicant does not disclose full facts or
suppresses relevant materials or is otherwise
guilty of misleading the court, the court may
dismiss the action without adjudicating the
matter. The rule has been evolved in larger
public interest to deter unscrupulous litigants
from abusing the process of court by deceiving
it. The very basis of the writ jurisdiction rests in
disclosure of true, complete and correct facts. If
the material facts are not candidly St.d or are
suppressed
or
are
distorted,
the
very
functioning of the writ courts would become
impossible. (Para 6)
In the present case, the applicant while filing
the writ petition has suppressed the material
facts that she is the daughter-in-law of the
second wife of the deceased employee, who
died in harness, so also the fact that the
deceased entered into the second marriage
while his first wife was surviving and therefore
applicant does not come in the definition of
'family'. Therefore, the petition is liable to be
dismissed. (Para 7)

Writ petition dismissed. (E-4)

Precedent followed:

1. K.D. Sharma Vs Steel Authority of India Ltd.
& ors., (2008) 12 SCC 481 (Para 6)

2. G. Jayshree & ors. Vs Bhagwandas S.B.I.
Bank of India, (2007) 8 SCC 449 (Para 6)

Present
petition
assails
order
dated
27.11.2014, passed by opposite party
no.3. Further prayer is for issuance of writ
in the nature of Mandamus to command
the opposite parties to consider and take
decision
for
appointment
on
compassionate ground of the petitioner
and
direction
to
pay
consequential
benefits including salary admissible and
permissible in accordance with law.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The present petition has been filed by
the petitioner praying for issuance of a writ in
the nature of Certiorari for quashing of the
impugned order dated 27.11.2014 passed by
opposite party no.3 (Annexure-7 to the writ
petition). He further prayed for issuance of
writ in the nature of Mandamus to command
the opposite parties to consider and take
decision for appointment on compassionate
ground of the petitioner under Dying in
Harness Rules 1974 and also directed the
opposite parties to pay consequential benefits
including salary admissible and permissible
in accordance with law.