# Mohd. Majhar v. The State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Writ A No. 4818 of 2020
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-majhar-v-the-state-of-u-p-ors-45481
- **Pages:** 6

## Headnote

A. Service Law - Pension and Gratuity -
Civil
Service
Regulations:
Regulations
351, 251A - The question for consideration
in the present case is as to whether the
State Government can direct for not
payment of pension and gratuity when the
departmental or judicial proceedings have
not yet been finalized. State Government
order dated 28.10.1980, provides that those
employees against whom on the date of
retirement departmental, judicial or proceedings
before Administrative Tribunal are proceeding or
it is necessary to draw such proceedings shall
be given interim pension, but gratuity be not
paid till finalization of the proceeding. The same
provision has again been reiterated by GO dated
28.07.1989, in which, reference has also been
made to the GO dated 28.10.1980. (Para 9)

It is admitted that charge-sheet was submitted
before the Court concerned in the matter, which is
still pending consideration. The date of retirement
of the petitioner is 31.12.2019, it is, thus, clear
that on the date of retirement, judicial proceeding,
as contemplated in Regulation 351A of Civil Service
Regulations, have not been instituted against the
petitioner. Under the circumstances, in bereft of
any such proceeding, relying on the GO dated
28.10.1980, the pension and gratuity of petitioner
cannot be stopped, whereas, final report has been
submitted before the Competent Court on
16.9.2019 and the same has not been negated by
the Court concerned. (Para 10,11)

The State Government was not justified in not
paying the pension and gratuity to the
petitioner. However, it is made clear that in case
the petitioner is convicted in the criminal case
pending against him, the Government is fully
empowered
to exercise its power under
Regulation 351 to withhold or withdraw the
pension or any part of it. (Para 12)

Writ Petition allowed. (E-4)

Precedent cited:

## Text

12 All. Mohd. Majhar Vs. The State of U.P. & Ors.
637
domicile certificate dated 08.02.2018 and
ascertaining its authenticity.

30. The writ petition is allowed to the
extent indicate above.
----------
(2020)12ILR A637
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ A No. 4818 of 2020

Mohd. Majhar ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Yashwant Pratap Singh, Sri Sanjai Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and Gratuity -
Civil
Service
Regulations:
Regulations
351, 251A - The question for consideration
in the present case is as to whether the
State Government can direct for not
payment of pension and gratuity when the
departmental or judicial proceedings have
not yet been finalized. State Government
order dated 28.10.1980, provides that those
employees against whom on the date of
retirement departmental, judicial or proceedings
before Administrative Tribunal are proceeding or
it is necessary to draw such proceedings shall
be given interim pension, but gratuity be not
paid till finalization of the proceeding. The same
provision has again been reiterated by GO dated
28.07.1989, in which, reference has also been
made to the GO dated 28.10.1980. (Para 9)

It is admitted that charge-sheet was submitted
before the Court concerned in the matter, which is
still pending consideration. The date of retirement
of the petitioner is 31.12.2019, it is, thus, clear
that on the date of retirement, judicial proceeding,
as contemplated in Regulation 351A of Civil Service
Regulations, have not been instituted against the
petitioner. Under the circumstances, in bereft of
any such proceeding, relying on the GO dated
28.10.1980, the pension and gratuity of petitioner
cannot be stopped, whereas, final report has been
submitted before the Competent Court on
16.9.2019 and the same has not been negated by
the Court concerned. (Para 10,11)

The State Government was not justified in not
paying the pension and gratuity to the
petitioner. However, it is made clear that in case
the petitioner is convicted in the criminal case
pending against him, the Government is fully
empowered
to exercise its power under
Regulation 351 to withhold or withdraw the
pension or any part of it. (Para 12)

Writ Petition allowed. (E-4)

Precedent cited:

1. H.C. Sughar Singh (Retired) Vs Deputy Inspector
General of Police (Establishment), 2004 LawSuit (All)
236 dated 27.02.2004 (Para 4)

2. Kameshwar Prasad Vs St. of U.P. & ors., W.
P. No. 21773/2009 dated 25.04.2011 (Para 4)

Present petition challenges order dated
18.11.2019, passed by Superintendent of
Police, Maharajganj.

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. To assail correctness of the order
impugned dated 18.11.2019 passed by the
respondent no.3-Superintendent of Police,
Maharajganj, whereby regular pension and
gratuity of the petitioner has been stopped
by taking plea that a criminal case being
No.767A/2014, under Sections 147, 323,
504, 506, 307, 352 and 392 I.P.C., Police
Station Jataha Bazar, District Kushinagar,
which is still pending against him, the
instant writ petition has been filed.

2. Briefly, the facts of the present case
are that on 01.11.1978 initially the
638 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner was appointed as a Constable in
the Police Department. In the year 2014,
after completion of 36 years of his service,
he was promoted on the post of Naib
Daroga at Police Station Jataha Bazar,
District Kushinagar. During the aforesaid
period, the petitioner was doing his service
in the Department with full ability,
sincerity, honesty and his career was
unblemished in whole service period and
his
work
and
conduct
was
found
satisfactory by the higher authority. It is
alleged that on 21.11.2014, the then Station
House Officer, Police Station Jataha,
District
Kushinagar
lodged
a
first
information report against 18 named
persons being Case Crime No.767 of 2014,
under Sections 147, 148, 149, 307, 395,
397, 333, 353, 189, 323, 504, 506 I.P.C.
and Section 7 of Criminal Law Amendment
Act. Thereafter, on 27.11.2014, as a
counter blast to the above said first
information report, a cross first information
report was lodged by one Laxmi Yadav
against the petitioner and 4 others, which
has been registered as Case Crime
No.767A of 2014, under Sections 147, 307,
352, 392, 323, 504 and 506 I.P.C., Police
Station Jataha Bazar, District Kushinagar.
On 30.12.2018, the investigating officer
submitted final report against the petitioner.
On 16.09.2019, Laxmi Yadav has filed a
protest petition before the Court of Judicial
Magistrate, Kushinagar at Padrauna against
the said final report dated 30.12.2018. In
the meantime, the petitioner was promoted
as Sub Inspector at District Maharajganj.
On 04.07.2019, a letter was sent by the
Superintendent of Police, Maharajganj to
the Prabhari Nirikshak Kotwali, District
Maharajganj with the information that the
petitioner is going to be superannuated on
31.12.2019. On 31.12.2019, the petitioner
retired from the post of Sub Inspector. On
18.11.2019, an order has been passed by
the Superintendent of Police, Maharajganj
to provide pension and other retrial benefits
to the petitioner.

3. On the same day i.e. on
18.11.2019,
the
respondent
no.3-
Superintendent of Police, Maharajganj has
passed the impugned order, whereby the
regular pension and gratuity of the
petitioner
has
been
stopped
due
to
pendency of criminal case being Case
Crime No.767A/2014 under the above
mentioned
sections,
hence,
this
writ
petition.

4. Learned counsel for the petitioner
submits
that
in
Criminal
Case
No767A/2014, final report had been
submitted before the competent court on
30.12.2018 and the same is still pending
consideration before the Chief Judicial
Magistrate,
Kushinagar.
The
date
of
retirement
of
the
petitioner
is
31st
December, 2019 as admitted in the counter
affidavit filed on behalf of State. It is, thus,
clear that on the date of retirement, judicial
proceeding as contemplated in Regulation
351A of Civil Service Regulations have not
been
instituted
since
according
to
Regulations, judicial proceedings shall be
deemed to have been instituted on the date
when a charge is submitted to a criminal
court. Hence, the power under the G.O.
dated 28.10.1980 and 28.07.1989 for
stopping the pension cannot be exercised. In
support of his submission, learned counsel
for the petitioner has placed reliance on
Government Order dated 28.07.1989 as well
as the judgment passed by this Court in H.C.
Sughar
Singh
(Retired) vs. Deputy
Inspector
General
of
Police
(Establishment), 2004 LawSuit (All) 236
dated 27.02.2004 and Kameshwar Pasad
vs. State of U.P. and others, W.P.
No.21773/2009 dated 25.04.2011.
12 All. Mohd. Majhar Vs. The State of U.P. & Ors.
639

5. Countering the above said
submissions, on the other hand, learned
Standing Counsel has vehemently opposed the
writ petition and submits that in view of the
Government Order dated 28.10.1980, which
provides that due to pendency of trial against
an incumbent, the final pension and gratuity
cannot be paid. The petitioner is being paid the
pension, whereas, nothing has been brought
before this Court to show and suggest that the
said final report has been accepted by the
competent court and as such, there is no
infirmity or illegality in the order impugned
passed by the respondent no.3-Superintendent
of Police, Maharajganj. However, a final
report was submitted before the court
concerned in the matter, but until its
adjudication, the said proceedings cannot be
said to be cumulative, inasmuch as, the
opportunity of protest is given to the opposite
faction and the proceedings are still pending.
However, in terms of G.Os. dated 28.10.1980
and 28.07.1989, the provisional pension has
been granted in favour of the petitioner,
inasmuch as, the said government order
specifically provides that the payment of
gratuity be not made until adjudication of any
pending judicial proceedings. Apart from it, as
per the report submitted by S.H.O. Jatha
Bazar, Kushinagar, the proceedings under the
above mentioned case crime are pending
consideration before the court concerned.

6. Heard Sri Yashwant Pratap Singh,
learned counsel for the petitioner, learned
Standing Counsel for the State and perused
the material available on record.

7. The first issue, which has arisen in
the writ petition, is as to whether the
petitioner is entitled for full pension and
gratuity in the facts of the present case.

8. A Government Servant after
attaining the age of superannuation is
entitled for pension in accordance with the
provisions of Civil Service Regulations (as
applicable in the State of Uttar Pradesh).
According to paragraph 41 of Civil Service
Regulations, pension has been defined in
following manner, "Except when the term
"Pension" is used in contradistinction to
gratuity
"Pension"
includes
Gratuity."
Regulations 351 and 351A relates to
withdrawing a pension or any part of it and
to order the recovery from the pension
respectively.
For
ready
reference,
Regulations 351 and 351A of Civil Service
Regulation are extracted below :

"351. Future good conduct is an
implied condition of every grant of a
pension. The State Government ...............
Reserve
to
themselves
the
right
of
withholding or withdrawing a pension or
any part of it, if the pensioner be convicted
of serious crime or be guilty of grave
misconduct.

The decision of the State Government
on
any
question
of
withholding
or
withdrawing the whole or any part of
pension under this regulation shall be final
and conclusive.

Note.--This rule is applicable to all the
officers enumerated in Article 349 except
...................... Army Veterinary Officers of
the Civil Veterinary Department.

"351-A. The Provincial Government
reserve to themselves the right to order the
recovery from the pension of an officer who
entered service on or after 7th August,
1940 of any amount on account of losses
found
in
judicial
or
departmental
proceeding to have been caused to
Government by the negligence or fraud of
such officer during his service.

Provided that-

(1) such departmental proceedings, if
not instituted while the officer was on duty.
640 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) shall not be instituted save with the
sanction of the 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 mis-conduct, or to have caused,
pecuniary
loss
to
government
by
misconduct or negligence, during his
service, including service rendered on reemployment 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 proceedings,
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) (a), and

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

Provincial Government:

(ii) shall be instituted before the
officer's retirement from service or within a
year from the date on which he was last on
duty whichever is later;

(iii) shall be in respect of an event
which took place not more than one year
before the date on which the officer was
last on duty and;

(iv) shall be conducted by such
authority and in such places whether in
India or elsewhere, as the Provincial
Government may direct;

(2) all such departmental proceedings
shall be conducted, if the officer concerned
so requests in accordance with the
procedure
applicable
to
departmental
proceedings on which an order of dismissal
from service may be made; and

(3) such judicial proceedings, if not
instituted while the officer was on duty,
shall have been instituted in accordance
with sub-clauses (ii) and (iii) of clause (1).

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.

Explanation-For the purpose of this
article-

(a) departmental proceedings 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 a 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 a civil court.

Note- As soon as proceedings or 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."
12 All. Mohd. Majhar Vs. The State of U.P. & Ors.
641

9. The power under Regulation 351 is
to be exercised by State Government for
withholding or withdrawing a pension or
any part of it, if the pensioner is convicted
for serious crime or is guilty of grave
misconduct. Regulation 351A empowers
the State Government to order for recovery
from the pension on account of losses
found
in
judicial
or
departmental
proceedings to have been caused to the
Government by negligence or fraud of such
officer during his service. There is no
difficulty in exercising the power for
ordering recovery of pension when finding
comes in a judicial or departmental
proceedings. The question for consideration
in the present case is as to whether the State
Government can direct for not payment of
pension and gratuity when the departmental
or judicial proceedings have not yet been
finalized. The State Government has issued
Government order dated 28th October,
1980 on the subject. By Government order
dated 28th October, 1980, it has been
provided that those employees against
whom
on
the
date
of
retirement
departmental,
judicial
or
proceedings
before
Administrative
Tribunal
are
proceeding or it is necessary to draw such
proceedings shall be given interim pension,
but gratuity be not paid till finalization of
the proceeding. The same provision has
again been reiterated by Government order
dated 28th July, 1989, in which, reference
has also been made to the Government
order dated 28th October, 1980.

10. So far as the present case is
concerned, the petitioner has retired on
31.12.2019 and admittedly, the final report
has been submitted in the matter on
16.09.2019.

11. In paragraph 8 of the counter
affidavit, it is admitted that charge sheet
was submitted before the court concerned
in the matter, which is still pending
consideration. The date of retirement of the
petitioner is 31.12.2019 as admitted in the
counter affidavit, it is, thus, clear that on
the date of retirement, judicial proceeding,
as contemplated in Regulation 351A of
Civil Service Regulations, have not been
instituted against the petitioner. Under the
circumstances, in bereft of any such
proceeding, relying on the Government
Order dated 28.10.1980, the pension and
gratuity of petitioner cannot be stopped,
whereas, final report has been submitted
before the Competent Court on 16.09.2019
and the same has not been negated by the
Court concerned.

12. In above view of the matter and in the
facts and circumstances of the present case, the
State Government was not justified in not paying
the pension and gratuity to the petitioner.
However, it is made clear that in case the
petitioner is convicted in the criminal case
pending against him, the Government is fully
empowered to exercise its power under
Regulation 351 to withhold or withdraw the
pension or any part of it. The petitioner, thus, has
made out a case for direction to the respondents
to finalize the pension and pay his gratuity.

13. Consequently, the writ petition
succeeds and the same is allowed. The
order impugned is set aside. Mandamus is
issued to the respondent-authorities to
ensure the entire payment as has been
stopped by the order impugned dated
18.11.2019 within the period of two
months from the date of production of
certified copy of this order, failing which
the petitioner is entitled for 12% interest on
the delayed payment.

14. There will be no order as to cost.
----------
642 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)12ILR A642
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A. No. 5044 of 2020

Shri Kishan Paswan ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bholeshwar, Sri Jainendra Kumar Rai.

Counsel for the Respondents:
Sri Vivek Kumar, Sri Anand Kumar Roy.

A. Service Law -Cancellation of appointment
-Suppression of information-Juvenile Justice
(Care and Protection of Children) Act, 2000:
Section 19 - Cancellation of the appointment
of the petitioner on the foot of non disclosure
of criminal prosecution faced as a juvenile
vitiates the impugned order. The conviction by
a Juvenile Justice Board under the Juvenile Justice
Act, 2000 of a juvenile is not a disqualification for
employment. Non disclosure of irrelevant facts is not
"deliberate" or willful concealment of material facts.
Hence non-disclosure of such criminal cases cannot
invalidate the appointment of the said person. (Para
35, 36, 37)

B. Constitution of India: Article 14-
Juveniles and adults form separate classes
-Criminal prosecution of an adult is a lawful
basis for determination of suitability of a
candidate for appointment to public office.
However prosecution of juveniles is in a
separate class. Using criminal prosecution faced
by a candidate as a juvenile to form an opinion
about his suitability for appointment, is arbitrary
illegal and violative of Article 14 of the
Constitution of India. (Para 14, 35)

C. Constitution of India: Article 21 - The
requirement to disclose details of criminal
prosecutions
faced
as
a
juvenile
is
violative of the right to privacy and the
right to reputation of a child guaranteed
under Article 21 of the Constitution of India. It
denudes the child of the protection assured by
the Juvenile Justice Act, 2000 (as amended from
time to time). Hence the employer cannot ask
any candidate to disclose details of criminal
prosecution faced as a juvenile. (Para 14, 35)

D. The candidate can hold his silence or
decline to give information about the
criminal prosecution faced as a juvenile.
Denial of such information by the candidate will
not amount to a false declaration or a willful
suppression of facts. (Para 14, 35)

In the present case it was clarified that these
holdings shall not apply to cases beyond the
ambit of Juvenile Justice Act, 2000 (as amended
from time to time) and also in cases of heinous
crimes committed by persons in the age group
of 16 to 18 years. (Para 35)

Writ Petitions allowed. (E-4)

Precedent followed:

1. Rajiv Kumar Vs St. of U.P. & anr., 2019 (4)
ADJ 316 (Para 2)

2. Sumpurnanand Vs St. of U.P., 2018 (11) ADJ
550 (Para 20)

3. K.S. Puutaswamy Vs U.O.I., (2017) 10 SCC 1 (Para 20)

4. Shivam Maurya Vs St. of U.P. & ors., 2020 (5)
ADJ 5 (Par 33)

5. Sahadeb Ghosh Vs The St. of W. B. & ors., (2012) 3
CALLT 697 (HC); 2012 (6) SLR 656 (Para 34)

Present petition assails the order dated
20.04.2020, passed by the I.G.- cum-
Principal Chief Security Commissioner/RPF
N.C. Railway, Prayagraj.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The petitioner has assailed the
order dated 20.04.2020 passed by the
respondent No.4-I.G.-cum- Principal Chief