# Shiv Sewak Prasad Mishra v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-13
- **Case number:** Writ-A No. 67791 of 2014
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-sewak-prasad-mishra-v-state-of-u-p-ors-43208
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Denial of
gratuity
and
pension-on
ground
of
pendency of criminal case-admittedly no
pecuniary loss caused to department
based on allegations of criminal caseretirement benefit cannot be withheld.
Held: Para-8
It is also not the case of respondents
that in the criminal case, there is any
allegation of loss to the Government and
there is recovery to be made from the
petitioner, which is the only exception
recognized by this Court in the above
mentioned
authorities
where
final
1 All]
Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
493
pension etc. may not be paid and
respondents may withhold the same.
Case Law discussed:
W.P. No. 25554 of 2010; W.P. No. 26972 of
2013; W.P. No. 10099 of 2013; W.P. No.
17141 of 2012; Spl. Appeal D No. 1278 of
2013; Spl. Appeal D No. 416 of 2014; 2013 (9)
ADJ 199 (DB).

## Text

492
 INDIAN LAW REPORTS ALLAHABAD SERIES
admitted that the petitioner on being
apprehended at the bank premises was
taken to a hospital, where he underwent a
medical examination. The result of the
said medical examination proved that the
petitioner was in a state of intoxication at
the relevant time. The impugned order
nowhere records as to why it was not
practicable
to
either
examine
the
attending doctors and other persons
involved in the medical examination of
the petitioner. The impugned order also
does not record that it was impracticable
to have the Medical Examination report
proved.
15. More importantly, it must be
borne in mind that when powers under
provisions such as those contained in
Clause (b) of Rule 8(2) are exercised,
there must exists material before the
authority which enables him to form an
opinion
that
it
is
not
reasonably
practicable to hold the departmental
inquiry. No such material appears to have
been in existence at the time when the
impugned order was passed. At least, the
order does not refer to or rely upon any
such material. Nor was any such material
laid before this Court to justify the
passing of the order impugned.
16. In the opinion of the Court, the
circumstances and the nature of the
persons who were likely to be involved in
bringing home the charge against the
petitioner were clearly present and there
was no material on the basis of which a
reasonable person could have come to a
conclusion that it was not reasonably
practicable to hold a regular inquiry
against the petitioner.
17. Accordingly and in view of the
above, this Court has no option but to
record its conclusion that the impugned
order cannot be sustained. In view of the
above conclusions the present writ
petition
deserves
to
be
and
is
consequently allowed.
18. The order dated 9.2.2009 is
hereby quashed. However, in the facts and
circumstances of the case, it is left open to
the respondent to conduct a regular
departmental inquiry against the petitioner
in respect of the incident in question in
accordance with the rules applicable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2015
BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
Writ-A No. 67791 of 2014
Shiv Sewak Prasad Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Vijay Gautam
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Denial of
gratuity
and
pension-on
ground
of
pendency of criminal case-admittedly no
pecuniary loss caused to department
based on allegations of criminal caseretirement benefit cannot be withheld.
Held: Para-8
It is also not the case of respondents
that in the criminal case, there is any
allegation of loss to the Government and
there is recovery to be made from the
petitioner, which is the only exception
recognized by this Court in the above
mentioned
authorities
where
final
1 All]
Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
493
pension etc. may not be paid and
respondents may withhold the same.
Case Law discussed:
W.P. No. 25554 of 2010; W.P. No. 26972 of
2013; W.P. No. 10099 of 2013; W.P. No.
17141 of 2012; Spl. Appeal D No. 1278 of
2013; Spl. Appeal D No. 416 of 2014; 2013 (9)
ADJ 199 (DB).
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard Shri Vijay Gautam, learned
counsel for the petitioner, Shri Pankaj
Rai, learned Additional Chief Standing
counsel for the respondents and perused
the record.
2.
Considering the pure legal
submission advanced by learned counsel for
the petitioner, learned Additional Chief
Standing Counsel stated that he does not
propose to file any counter affidavit but
would make oral submissions and the writ
petition may be disposed of finally at this
stage under the Rules of this Court, hence I
proceed accordingly.
3. By means of present writ petition,
the petitioner has prayed for quashing the
impugned order dated 16.1.2014 passed
by respondent no.5, by which the gratuity
amount and other retiral benefits have
been withheld on account of pendency of
criminal case against the petitioner. He
has further prayed for a direction to the
respondent authorities to pay the gratuity
amount and other post retiral benefits i.e.
leave eacashment, insurance amount,
arrears, difference of regular pension
since 1.2.2014 and other amount to him
along with interest.
4. It is contended by learned counsel
for the petitioner that during pendency of
a criminal case, retiral benefits and
pension amount cannot be withheld and
this issue has been considered and
decided by this Court in Writ Petition
No.25554 of 2010 (Lalta Prasad Yadav
Vs. State of U.P. & 4 Ors.) decided on
15.5.2013, Writ Petition No.26972 of
2013 (Santosh Kumar Singh Vs. State of
U.P. & 4 Ors.) decided on 14.05.2013,
Writ Petition No. 10099 of 2013, HC
11AP Mishir Lal Vs. The state of U.P.
and others, decided on 26.02.2013 and
Writ Petition No. 17141 of 2012, HC 122
AP Deo Narain Singh Vs. State of U.P.
and others, decided on 20.07.2012. It is
also submitted that one of the judgment of
learned Single Judge was also assailed
before a Division Bench in Special
Appeal No. 84 (Defective) of 2013, which
has also been dismissed.
5. Learned Standing Counsel has
placed reliance on a Division Bench
judgment of this Court in State of UP and
2 ors vs. Jai Prakash Special Appeal
Defective No.1278 of 2013 decided on
17.12.2013. The Division Bench relied on
Regulation 351-A of the Civil Services
Regulation, which empowers the State
Government to recover from the pension
the amount of loss found in judicial or
departmental proceedings, to have been
sustained by the Government by the
negligence or fraud during his service. In
the said case the Division Bench further
found that Regulations 351, 351-A and
351-AA of the Civil Services Regulations
operate in different fields. Regulation
351-AA specifically provides that where a
departmental or judicial proceeding or
any
enquiry
by
the
Administrative
Tribunal is pending on the date of
retirement, a provisional pension under
Regulation 919-A may be sanctioned.
Regulation 919-A (3) contains a specific
494
 INDIAN LAW REPORTS ALLAHABAD SERIES
prohibition on the payment of DeathCum-Retirement
Gratuity
to
a
government servant until the conclusion
of departmental or judicial proceeding
and the issue of final orders thereon.
6. However, Shri Vijay Gautam has
placed reliance on a subsequent Division
Bench judgment in Special Appeal
Defective No.416 of 2014 (State of UP
and 3 ors vs. Faini Singh) decided on
25.4.2014, by which the Division Bench
has dismissed the appeal filed by the State
Government. The relevant para-21 of the
judgment is reproduced as below:-
"21. We may point out that a mere
pendency of any judicial proceeding
cannot be a ground to exercise the powers
under
Article
351AA
read
with
Regulation 919A for withholding the
retiral dues. The nature of allegations and
the gravity of charge has to be taken into
consideration by the competent authority
before making an order to withhold the
retiral dues. In case the pendency of any
judicial
proceeding
is
held
to
be
sufficient, a minor offence or even a
parking ticket may be a ground to
withhold the pension of a retired
employee. Such a situation is not
contemplated under the powers conferred
on the competent authority under the Civil
Services Regulations."
7. Shri Vijay Gautam, learned
counsel for the petitioner has further
relied upon a Division Bench judgment in
Narendra Kumar Singh vs. State of UP
and others 2013 (9) ADJ 199 (DB)
decided on 5.10.2013. The relevant paras
of the judgment are reproduced as below:-
"9. In the case of D.S.Nakara Vs.
Union of India, reported in (1983) 1 SCC,
305, the Apex Court has observed as
under :
"From the discussion three things
emerge : (1) that pension is neither a
bounty nor a matter of grace depending
upon the sweet will of the employer and
that it creates a vested right subject to
1972 Rules which are statutory in
character because they are enacted in
exercise of powers conferred by the
proviso to article 309 and clause (5) of
Article 148 of the Constitution; (ii) that
the pension is not an ex gratia payment
but it is a payment for the past service
rendered; and (iii) it is a social welfare
measure rendering socio-economic justice
to those who in the hey-day of their life
ceaselessly toiled for the employer on an
assurance that in their old age they would
not be left in lurch....."
10. The ratio laid down in these
cases had been subsequently followed by
the Apex Court in series of its decisions
including the case of Secretary, O.N.G.C.
Limited Vs. V.U.Warrier, reported in
2005 (5) SCC, 245.
11. Division Bench of this Court in
the case of Mahesh Bal Bhardwaj Vs.
U.P. Co-operative Federation Ltd. and
another (Supra) has held that gratuity and
other post retiral dues, which the
petitioner is otherwise entitled under the
Rules, could not have been withheld
either on the pretext that criminal
proceedings were pending against the
petitioner or for the reason that on the
outcome of the criminal trial, some more
punishment was intended to be awarded.
12. Learned Single Judge of this Court
in the case of Radhey Shyam Shukla Vs.
State of U.P. and another (Supra) has also
taken the similar view and has held that mere
pendency of the criminal proceedings would
not authorize withholding of gratuity.
1 All]
Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
495
13. Division Bench of this Court in
the case of Lal Sharan Vs. State of U.P.
and others (Supra) has held that mere
intention to obtain sanction for initiating
disciplinary enquiry could not be basis for
withholding the post retiral dues unless
sanctioned, granted and the disciplinary
proceedings started.
14. Apex Court in the case of State
of Punjab and another Vs. Iqbal Singh,
(Supra) has further held that since the cut
of the pension and the gratuity adversely
affects the retired employee as such order
can not be passed
without giving
reasonable opportunity of making his
defence.
15. We have also perused the
Government Order dated 28.10.1980,
annexure-CA-1 to the counter affidavit,
which
has
been
made
basis
for
withholding the part of the pension and
allowing
the
interim
pension.
This
Government Order provides the payment
of interim pension where the departmental
proceeding are pending. None of the
circular, Government Order or any
provision has been referred before us,
which
provides
that
where
no
departmental proceeding is pending, still
the pension can be withheld."
8. It is also not the case of
respondents that in the criminal case,
there is any allegation of loss to the
Government and there is recovery to be
made from the petitioner, which is the
only exception recognized by this Court
in the above mentioned authorities where
final pension etc. may not be paid and
respondents may withhold the same.
9. For the reason stated therein, and
in view of the above authorities, the writ
petition is allowed and the impugned
order dated 16.1.2014 is set aside. The
respondents are directed to pay retiral
benefits and final pension to petitioner
forthwith within a period of two months
from the date of production of a certified
copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
Writ-C No. 69020 of 2014
Sri Gurudwara Committee, Chakeri
 ...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri B. Dayal, Sri Niraj Agarwal, Sri Vishnu
Sahai
Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Ishan Shishu, Sri
Ramesh Chandra Agrahari
Constitution
of
India,
Art.-226Alternative
remedy-Revision-order
passed
by
District
Judge
rejecting
objection
under
section
3-A(4)
of
National High way Act, 1956-only the
Principal
Judge
of
Civil
Court
has
jurisdiction, hence reference bad-heldPrincipal Civil Court as defined under
section 3(15) of General Clause Act
1897-'District Judge' being judge of
Principal Civil Court having original
jurisdiction-order
passed
by
District
Judge
remedy
to
evoke
revisional
jurisdiction writ either under Article 226
or 227-not maintainable-conversion of
Writ Petition into revision permitted.
Held: Para-17 & 18
17. It is noteworthy and not denied by
the petitioner that when his case was
not referred to the Court but a reference
had
been
made
by
the
competent