# Rajeev Sharma v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 1039
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-11-08
- **Case number:** Civil Misc. Writ Petition No. 66930 of 2013
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-sharma-v-state-of-u-p-ors-42935
- **Pages:** 7

## Headnote

Constitution of India, Art.-226-Service
law-payment of gratuity and pension
denied on pendency of criminal appealadmittedly
disciplinary
proceeding
initiated considering role of petitioner in
criminal case-not initiated disciplinary
proceeding-held-after retirement neither
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
the post retiral dues could be withheldnor disciplinary action can go-petition
allowed with direction to pay 9 %
interest within 3 month.

Held: Para-21
Civil Service Regulation is applicable upon
the employees of the power corporation,
regulation 351 AA and regulation 919 A(3),
prohibits payment of death-cum-retirement
gratuity until the conclusion of departmental
or judicial proceeding. Division Bench in Jai
Prakash
(Supra)
has
held
"judicial
proceedings"
would
necessarily
include
pendency of criminal case. The question to
be answered is as to whether pendency of
criminal
appeal,
against
acquittal,
will
include "pending judicial proceeding" In
Amrit Lal (Supra), Division Bench observed
pendency
of
criminal
appeal
against
acquittal is not a ground for withholding the
retiral dues. After acquittal there is nothing
against the employee, more so, in the facts
of the case, the respondents did not choose
to initiate any disciplinary proceedings after
acquittal
nor
did
they
examine
the
judgement of the trial court to find out, as to
whether
petitioner
was
acquitted
'honourably', once failing to exercise their
powers under the rule to initiate any
proceedings,
it
is
not
open
for
the
respondents to withhold retiral dues, merely
on pendency of criminal appeal.

Case Law discussed:
(2013) 3 UPLBEC 2369; W.P. No. 19693 of 2012;
[2014 (1) AWC 159(SC)]; [(2014) 1 ADJ 207];
[LAWS (SC)-201406014]; (1981) 2 SCC 714;
(2006) 4 SCC 265; (2013) 7 SCC 685; (AIR 1991
SC 2010); 2013 (4) SCC 161; 2013 (5) SCC 111;
1993 (3) SCC 196; (2007) 1 SCC (L&S) 292); Civil
Appeal No. 7113 of 2014.

## Text

2 All]. Rajeev Sharma Vs. State of U.P. & Ors.
1039
Section 278 of U.P.Z.A. & L.R. Act
provides that a statement of account
certified by the Tehsildar shall for the
purpose of this Chapter, be conclusive
evidence of the existence of the arrears of
land revenue, of its amount and of the
person who is the defaulter. However,
other dues payable can also be recovered
as arrears of land revenue, if it is so
permitted by law. Reliance has also been
placed upon Section 3 of The U.P. Public
Moneys (Recovery of Dues) Act, 1972,
which provides for recovery of certain
dues as arrears of land revenue. Section
3(1)(d) contemplates that money payable
to
the
State
Government
or
the
Corporation, under an agreement, is
recoverable as arrears of land revenue, if
conditions
contemplated
therein
are
satisfied.

10. In the present case, the
agreement which has been relied upon by
the respondents contained no stipulation
or clause that any sum due thereunder can
be recovered as arrears of land revenue. In
the absence of there being any provision
in law or agreement for recovery of
contractual due being realizable as arrears
of land revenue, the contractual due
cannot be realized as arrears of land
revenue.
Learned
counsel
for
the
petitioner has relied upon a Division
Bench of this Court in Mohammad Umar
Vs. Collector/District Magistrate [(2006)
3 AWC 2412] wherein after noticing the
relevant provisions of the U.P.Z.A. &
L.R. Act, it has been held that contract
money for realization of Tehbazari dues
cannot be recovered as arrears of land
revenue. Various other judgments on the
point having been relied upon.

11. In view of the discussions made
above, we find that issuance of recovery
citation
against
the
petitioner
for
realization of the contractual dues, alleged
to be payable by the petitioner as arrears
of land revenue, is contrary to law. The
citation issued on 8.11.2013 calling upon
the petitioner to pay
the
amount,
therefore, is wholly without jurisdiction
and is liable to be quashed.

12. The writ petition, therefore,
succeeds and is allowed. Impugned
recovery
citation
dated
8.11.2013
(Annexure No.7 to the writ petition)
issued by respondent no.3 is quashed.
However, it would be open for the
respondents to proceed in accordance
with the terms of the contract for
determination of petitioner's liability and
its recovery, if any, in accordance with
law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 66930 of 2013

Rajeev Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh
Sri Manoj Kumar

Counsel for the Respondents:
C.S.C., Sri Shivam Yadav

Constitution of India, Art.-226-Service
law-payment of gratuity and pension
denied on pendency of criminal appealadmittedly
disciplinary
proceeding
initiated considering role of petitioner in
criminal case-not initiated disciplinary
proceeding-held-after retirement neither
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
the post retiral dues could be withheldnor disciplinary action can go-petition
allowed with direction to pay 9 %
interest within 3 month.

Held: Para-21
Civil Service Regulation is applicable upon
the employees of the power corporation,
regulation 351 AA and regulation 919 A(3),
prohibits payment of death-cum-retirement
gratuity until the conclusion of departmental
or judicial proceeding. Division Bench in Jai
Prakash
(Supra)
has
held
"judicial
proceedings"
would
necessarily
include
pendency of criminal case. The question to
be answered is as to whether pendency of
criminal
appeal,
against
acquittal,
will
include "pending judicial proceeding" In
Amrit Lal (Supra), Division Bench observed
pendency
of
criminal
appeal
against
acquittal is not a ground for withholding the
retiral dues. After acquittal there is nothing
against the employee, more so, in the facts
of the case, the respondents did not choose
to initiate any disciplinary proceedings after
acquittal
nor
did
they
examine
the
judgement of the trial court to find out, as to
whether
petitioner
was
acquitted
'honourably', once failing to exercise their
powers under the rule to initiate any
proceedings,
it
is
not
open
for
the
respondents to withhold retiral dues, merely
on pendency of criminal appeal.

Case Law discussed:
(2013) 3 UPLBEC 2369; W.P. No. 19693 of 2012;
[2014 (1) AWC 159(SC)]; [(2014) 1 ADJ 207];
[LAWS (SC)-201406014]; (1981) 2 SCC 714;
(2006) 4 SCC 265; (2013) 7 SCC 685; (AIR 1991
SC 2010); 2013 (4) SCC 161; 2013 (5) SCC 111;
1993 (3) SCC 196; (2007) 1 SCC (L&S) 292); Civil
Appeal No. 7113 of 2014.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Shri Adarsh Singh holding
brief of Shri I.R.Singh and Shri Shivam
Yadav appearing for Power Corporation.

2. The petitioner was working as
Junior Engineer with the respondent
Power Corporation since 1.4.1975, retired
on 30.4.2009 on attaining the age of
superannuation. During service, petitioner
was prosecuted in Criminal Case under
section 7/13(2) read with Section 13(1)(D)
of Prevention of Corruption Act, 1988.

3. Pursuant thereof, no disciplinary
proceedings was initiated against the
petitioner. In the trial petitioner was
acquitted on 14.3.2005.

4. Aggrieved, Government Appeal
No. 2602 of 2002 (State of U.P versus
Rajeev Sharma) was filed which was
admitted.

5. On superannuation on 30.4.2009
the petitioner approached the respondent
authorities for retiral benefits including
pension, when no decision was taken , the
petitioner approached the court by filing
writ petition no. 55327 of 2011 (Rajiv
Sharma versus State of U.P and others)
which was disposed of by order dated
26.9.2011 directing the authorities to
decide the petitioner's representation.

6. By the impugned order dated
22.11.2012 passed, pursuant to the order
of the Court, the Chief Engineer (Jal
Vidyut), U.P Power corporation Ltd.,
respondent no. 3 rejected the claim of the
petitioner solely for the reason that
Criminal Appeal, against acquittal is
pending, the retiral dues shall, thus, be
paid after decision in the Criminal Appeal
No.2602 of 2002.

7. The submission of the learned
counsel for the petitioner is that the
petitioner was acquitted in the criminal
case, during the pendency of the trial or
appeal, the respondent authorities did not
initiate
any
disciplinary
proceedings
2 All]. Rajeev Sharma Vs. State of U.P. & Ors.
1041
under the rules, the petitioner having
since retired, on attaining the age of
superannuation, there being no provision
under the rules to withhold the petitioner's
post retiral benefits pending criminal
appeal, thus, the petitioner is entitled to
the post retiral dues.

8. In support of his submission, the
learned counsel for the petitioner has
relied upon State of Jharkhand and others
versus Jitendra Kumar Srivastava and
another (2013) 3 UPLBEC 2369 and
decision dated 1.8.2014 rendered in Writ
Petition No.19693 of 2012 (Amir Lal
versus Chief Election Officer and others).

9. In rebuttal Shri Shivam Yadav,
learned counsel for the respondent Power
Corporation submits that since judicial
proceedings has not culminated, the state
appeal is pending hence the retiral
benefits cannot be released even though
the petitioner has been acquitted in the
criminal trial.

10. Rival submissions fall for
consideration:

11. Supreme Court in State of
Jharkhand and others vs. Jitendra Kumar
Srivastava and another [2014 (1) AWC
159 (SC)] considered as to whether in
absence of any provisions in the pension
rules, State Government can withhold a
part of pension or gratuity during the
pendency
of
the
departmental
or
disciplinary proceedings. Paragraph 11 is
as follows:-

"11. Reading of Rule 43(b) makes it
abundantly clear that even after the
conclusion of the departmental inquiry, it
is permissible for the Government to
withhold pension etc. ONLY when a
finding is recorded either in departmental
inquiry or judicial proceedings that the
employee
had
committed
grave
misconduct in the discharge of his duty
while in his office. There is no provision
in the rules for withholding of the
pension/ gratuity when such departmental
proceedings or judicial proceedings are
still pending."

12. Division Bench of this Court in
State of U.P. and others vs. Jai Prakash
[(2014) 1 ADJ 207] relying upon
Supreme Court judgment held that
pension would include gratuity and the
gratuity cannot be withheld merely due to
pendency of criminal case unless there is
a specific provision under the Rules. The
Court was dealing with the provisions of
Civil Service Regulations, 1920, which
provided for withholding of gratuity
Paragraphs 8, 9 and 10 are as follows:-

"8. The learned Single Judge, in the
present case, has proceeded on the basis
that neither in regulation 351 nor in
regulation 351-A is a withholding of
gratuity contemplated during the pendency
of a judicial proceeding. The learned Single
Judge, with respect, has overlooked the
provisions of regulation 351-AA and a
specific
bar
which
is
contained
in
regulation 919-A (3). In view of the specific
prohibition which is contained in regulation
919-A (3), no death-cum-retirement gratuity
would be admissible until the conclusion of
a departmental or judicial proceeding. The
expression 'judicial proceeding' would
necessarily include the pendency of a
criminal case.

9.In a judgement of a Division Bench
of this Court in Shri Pal Vaish vs. U.P.
Power Corporation Limited and another,
2009 (9) ADJ 45 (DB), it has been held
that clause 3 of regulation 919-A is a
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
provision which specifically deals with
the payment of gratuity during pendency
of departmental or judicial proceedings
and in view thereof, the payment of
gratuity has to be deferred until the
conclusion of such a proceeding. The
Division Bench also held that the payment
of gratuity cannot be made in view of the
bar contained in regulation 919-A during
the pendency of a criminal case.

10.In a recent judgement of the
Supreme Court in State of Jharkhand &
Ors. vs. Jitendra Kumar Srivastava & Anr
2, the Supreme Court dealt with the
provisions of Rule 43 (b) of the Pension
Rules of the State of Bihar as applicable
to the State of Jharkhand. Regulation 43(b)
was pari materia to regulation 351-A of the
Civil Service Regulations in the State of
U.P. In that context, the Supreme Court
held that Rule 43(b) made it clear that it
was permissible for the Government to
withhold pension only when a finding is
recorded in a departmental inquiry or
judicial proceeding in regard to the
commission of misconduct while in service
and rule 43(b) contains no provision for
withholding gratuity when departmental or
judicial proceedings are still pending.
However, the Supreme Court clarified that
though there was no provision for
withholding pension or gratuity in the given
situation, had there been any such provision
in the rules, the position would have been
different. In the present case, there is a
specific provision contained in regulation
351-AA read with regulation 919-A(3)."

13. A Division Bench of this Court in
writ petition no.19693 of 2012 (Amrit Lal
versus Chief Election Officer and Others )
decided on 1.8.2014 observed as follows:

Firstly the pendency of the Criminal
Appeal filed by the State cannot be said to
be a valid ground for non payment of
gratuity amount and in any case after
dismissal of the appeal on 17.5.2012,
there can be further no justification for
not paying the gratuity amount.

14. The Supreme Court in Dev
Prakash Tewari vs. U.P. Cooperative
Institutional Service Board [LAWS (SC)-
2014-6-14] was considering the case as to
whether disciplinary proceedings after
retirement of an employee could be
continued in absence of any rule to that
effect. In paragraph 6 held as follows:-

"6 ..................

...................

Once the appellant had retired from
service on 31.3.2009, there was no
authority vested with the respondents for
continuing the disciplinary proceeding
even for the purpose of imposing any
reduction in the retiral benefits payable to
the appellant. In the absence of such an
authority it must be held that the enquiry
had lapsed and the appellant was entitled
to get full retiral benefits."

15. In Corporation of the City of
Nagpur versus Ramchandra (1981) 2 SCC
714, it is observed that it may not be
expedient to continue a departmental enquiry
on the very same charges or grounds or
evidence, where the accused has been
acquitted
honourably
and
completely
exonerated of the charges. At the same time,
it is pointed out that merely because the
accused is acquitted, the power of the
authority
concerned
to
continue
the
departmental enquiry is not taken away nor is
its discretion in any way fettered. The same
principle is reiterated in Commr.of Police
versus Narender Singh (2006) 4 SCC 265.

16. In Commr. of Police, New Delhi
and another versus Mehar Singh (2013) 7
2 All]. Rajeev Sharma Vs. State of U.P. & Ors.
1043
SCC 685, Supreme Court observed that
"while the standard of proof in a criminal
case is that of proof beyond all reasonable
doubt, the proof in a departmental
proceeding
is
preponderance
of
probabilities. Quite often criminal cases
end in acquittal because witnesses turn
hostile. Such acquittals are not acquittals
on merit. An acquittal based on benefit of
doubt would not stand on par with a clean
acquittal on merit after a full-fledged trial,
where there is no indication of the
witnesses being won over. In R.P. Kapur
versus Union of India AIR 1964 SC 787
this Court has taken a view that
departmental proceedings can proceed
even though a person is acquitted when
the acquittal is other than honourable.

" This Court observed that the
expressions
"honourable
acquittal",
"acquitted
of
blame"
and
"fully
exonerated" are unknown to the Criminal
Procedure Code or the Penal Code. They
are coined by judicial pronouncements. It
is difficult to define what is meant by the
expression "honourably acquitted". This
Court expressed that when the accused is
acquitted after full consideration of the
prosecution case and the prosecution
miserably fails to prove the charges
levelled against the accused, it can
possibly be said that the accused was
honourably acquitted."

17. Enquiry commences with the
issue of charge-sheet as held in the case of
Union of India vs. K.V. Jankiraman (AIR
1991 SC 2010), Union of India vs. Anil
Kumar Sarkar, 2013 (4) SCC 161 and
State of Andhra Pradesh vs. C.H. Gandhi,
2013 (5) SCC 111; Framing of the
charge-sheet is the first step taken for
holding enquiry into the allegations on the
decision taken to initiate disciplinary
proceedings. Service of charge-sheet on
the Government servant follows decision
to initiate disciplinary proceedings and it
does not precede and coincide with that
decision
(vide
Delhi
Development
Authority vs. H.C. Khurana 1993 (3) SCC
196). Once the enquiry was not initiated
or contemplated or pending before the
retirement, the same cannot be continued
after retirement, unless there is a rule to
that effect. The learned counsel for the
respondents has failed to show any rule or
circular
as
to
whether
disciplinary
proceedings could be initiated after
retirement and under what circumstances,
the retiral dues be withheld after acquittal.

18. The Supreme Court in Mathura
Prasad v. Union of India and others,
(2007) 1 SCC (L&S) 292), held that when
an employee is sought to be deprived of
his livelihood for alleged misconduct, the
procedure laid down under the rules are
required to be strictly complied with:

"When an employee, by reason of an
alleged act of misconduct, is sought to be
deprived of his livelihood, the procedure
laid down under the sub-rules are
required to be strictly followed: It is now
well settled that a judicial review would
lie even if there is an error of law
apparent on the face of the record. If
statutory authority uses its power in the
manner not provided for in the statute or
passes an order without application of
mind,
judicial
review
would
be
maintainable. Even an error of fact, for
sufficient
reasons
may
attract
the
principles of judicial review."

19. In a recent judgement rendered
by Hon'ble Supreme Court in D.D Tewari
(D) Thr.Lrs. versus Uttar Haryana Bijli
Vitran Nigam Ltd. & Others in Civil
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No.7113 of 2014 decided on 1st
August 2014. The Supreme Court made
the following observation in paragraph 4
& 6:

4. It is an undisputed fact that the
appellant
retired
from
service
on
attaining the age of superannuation on
31.10.2006 and the order of the learned
single Judge after adverting to the
relevant facts and the legal position has
given a direction to the employerrespondent
to
pay
the
erroneously
withheld pensionary benefits and the
gratuity
amount
to
the
legal
representatives of the deceased employee
without awarding interest for which the
appellant is legally entitled, therefore,
this Court has to exercise its appellate
jurisdiction as there is a miscarriage of
justice in denying the interest to be paid
or payable by the employer from the date
of the entitlement of the deceased
employee till the date of payment as per
the aforesaid legal principle laid down by
this Court in the judgement referred to
supra. We have to award interest at the
rate of 9% per annum both on the amount
of pension due and the gratuity amount
which are to be paid by the respondent.

6.For the reasons stated above, we
award interest at the rate of 9% on the
delayed payment of pension and gratuity
amount from the date of entitlement till
the date of the actual payment. If this
amount is not paid within six weeks from
the date of receipt of a copy of this order,
the same shall carry interest at the rate of
18% per annum from the date of amount
falls due to the deceased employee. With
the above directions, this appeal is
allowed.

20. Applying the law on the facts of
the case in hand, petitioner was falsely
implicated in a criminal case for taking
bribe of Rs.500 on 22.7.1991, was
enlarged on bail on the same day,
thereafter placed under suspension on
27.8.1991
and
on
16.11.1992,
the
petitioner was reinstated in service but no
departmental
proceedings
was
ever
initiated against the petitioner. The
petitioner was acquitted in the criminal
case on 14.3.2005, even after acquittal no
departmental proceedings was initiated.
On 30.4.2009, the petitioner retired. Thus
mere pendency of Criminal Appeal would
not entitle the respondents to withhold the
post retiral benefits as the petitioner was
acquitted
and
no
proceedings
was
initiated by the respondents, further
petitioner through out the trial continued
in service until retirement.

21. Civil Service Regulation is
applicable upon the employees of the
power corporation, regulation 351 AA
and
regulation
919
A(3),
prohibits
payment of death-cum-retirement gratuity
until the conclusion of departmental or
judicial proceeding. Division Bench in Jai
Prakash
(Supra)
has
held
"judicial
proceedings" would necessarily include
pendency of criminal case. The question
to be answered is as to whether pendency
of criminal appeal, against acquittal, will
include "pending judicial proceeding" In
Amrit Lal (Supra), Division Bench
observed pendency of criminal appeal
against acquittal is not a ground for
withholding
the
retiral
dues.
After
acquittal there is nothing against the
employee, more so, in the facts of the
case, the respondents did not choose to
initiate any disciplinary proceedings after
acquittal nor did they examine the
judgement of the trial court to find out, as
to whether petitioner was acquitted
'honourably', once failing to exercise their
2 All]. Jaswant Singh & Ors. Vs. The State of U.P. & Ors.
1045
powers under the rule to initiate any
proceedings, it is not open for the
respondents to withhold retiral dues,
merely on pendency of criminal appeal.

22. The impugned order dated
22.11.2012 passed by Chief Engineer (Jal
Vidyut), respondent no. 3 and order dated
6.6.2013 passed by Executive Engineer,
Electricity
Distribution
Division,
Pilibheet, respondent no. 4 is quashed.

23. The respondents are directed to
release arrears of salary for the suspension
period, retiral dues and terminal benefits
of the petitioner within three months from
the date of service of this order before the
competent authority. Interest @ 9% is
awarded on delayed payment of pension
and gratuity from the date of entitlement
to the date of actual payment, failing
which same shall carry interest @ 18%
per annum from the date the amount falls
due.

24. With the above directions, the
writ petition is allowed.

25. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Civil Misc. Review Application No. 78690
of 2011
in
Civil Misc. Writ Petition No. 73515 of 2010

Jaswant Singh & Ors. ...Petitioners
Versus
The State of U.P. & Ors. . ..Respondents
Counsel for the Petitioners:
Sri Manoj Kumar Singh, Sri S.F.A. Naqvi
Sri Faizan Ahmad

Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh

U.P. Land Acquisition(Determination of
compensation & Declaration of Award by
Agreement)Rules, 1997-Claim of interest
on delayed amount-once on basis of
agreement award passed-compensation
accepted-after elapsed of six years-claim
of interest as per provisions section 34 of
the
Act-held-once
quantum
of
compensation
agreed
and
paid-ends
entire dispute-in absence of specific
provision of interest in Rules 1997-in
absence of plea taken in writ petitioninterest can not be paid by virtue of
Review Petition-dismissed.

Held: Para-9
We are thus of the opinion that the
provisions of the Rules of 1997 are not in
conflict with Section 34 of the Act. The
interest part has deliberately not been
included in the Rules of 1997 for the
clear reason that once the parties agree
upon
a
particular
quantum
of
compensation and party concerned is
paid the said amount, that would end the
entire dispute and the matter shall stand
settled once and for all.

(Delivered by Hon'ble Vineet Saran, J.)

Re-Delay Condonation Application

1. Heard learned counsel for the
parties. No counter affidavit has been
filed to the affidavit filed alongwith the
application for condonation of delay.

2. We are satisfied with the
explanation given in the affidavit for
condoning the delay and accordingly this
application is allowed and the delay in
filing the review petition is condoned.