# State of U.P. and Ors v. Jai Prakash

- **Citation:** (2013) 3 ILRA 1567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-17
- **Case number:** Special Appeal (D) No. 1278 of 2013
- **Bench:** Dhananjaya Yeshwant Chandrachud, C.J. Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-ors-v-jai-prakash-42752
- **Pages:** 5

## Headnote

Sri R.K. Dwivedi

Civil Service Regulation-Regulation 351 Aa
read
with
Police
Regulation
919-AWithholding gratuity-during pendency of
criminal case-held-proper-however entitled
for provisional pension-direction otherwise
by Hon'ble Single Judge-set-a-side.
Held: Para-11
In the circumstances, we are of the view
that
the
order
passed
by
the
Superintendent of Police, Etah withholding
the
payment
of
gratuity
until
the
conclusion of the criminal trial was correct
and proper and was in accordance with the
provisions of regulation 351-AA read with
regulation 919-A (3). The respondent
would however be entitled to the payment
of provisional pension as contemplated in
law.

Case Law discussed:
Shri Pal Vaish Vs. U.P. Power Corporation
Limited and another; State of Jharkhand &
Ors. Vs. Jitendra Kumar Srivastava.

## Text

3 All] State of U.P. and Ors. Vs. Jai Prakash
1567

11. We find no reason to deviate from
the order of the learned Single Judge
imposing costs. The learned Single Judge
was justifiably dismayed with the conduct of
the State in disclosing the minutes of the
meeting of the Selection Committee of 2001
only when a contempt petition was filed. The
minutes of the meeting of the Selection
Committee were not immediately disclosed
to the respondent and were disclosed only on
the request of the respondent after an
inordinate delay. Hence, there is no reason to
interfere with the order of the learned Single
Judge imposing costs.

12. For the aforesaid reasons, we
find no error in the judgment of the
learned Single Judge. The appeal shall,
accordingly, stand dismissed. There shall
be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2013

BEFORE
THE HON'BLE DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal (D) No. 1278 of 2013

State of U.P. and Ors... .Appellants
Versus
Jai Prakash.... Respondent

Counsel for the Petitioners:
Sri Pankaj Saxena, S.C.

Counsel for the Respondent:
Sri R.K. Dwivedi

Civil Service Regulation-Regulation 351 Aa
read
with
Police
Regulation
919-AWithholding gratuity-during pendency of
criminal case-held-proper-however entitled
for provisional pension-direction otherwise
by Hon'ble Single Judge-set-a-side.
Held: Para-11
In the circumstances, we are of the view
that
the
order
passed
by
the
Superintendent of Police, Etah withholding
the
payment
of
gratuity
until
the
conclusion of the criminal trial was correct
and proper and was in accordance with the
provisions of regulation 351-AA read with
regulation 919-A (3). The respondent
would however be entitled to the payment
of provisional pension as contemplated in
law.

Case Law discussed:
Shri Pal Vaish Vs. U.P. Power Corporation
Limited and another; State of Jharkhand &
Ors. Vs. Jitendra Kumar Srivastava.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The special appeal arises from a
judgement of the learned Single Judge by
which
an
order
passed
by
the
Superintendent of Police, Etah on 22 July
2010 withholding the payment of gratuity
to the respondent has been set aside and a
direction has been issued to the appellants
herein to release the gratuity together with
statutory interest.

2. The respondent was appointed on
5 February 1969 as a fireman in the fire
services of the State and was regularised
in service. He attained the age of
superannuation on 30 June 2010. On 22
July 2010, an order was passed by the
Superintendent of Police, Etah allowing to
the respondent a provisional pension of
Rs.9025/- per month. The payment of
gratuity was however withdrawn on the
ground of the pendency of a criminal case
which has been registered under Section
498-A of the Penal Code read with
Section 304-B and Section 3/4 of the
Dowry Prohibition Act. There is no
dispute about the factual position that an
FIR was registered on 3 May 2009 against
1568 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent and a charge sheet had
been filed before the competent court on
11 December 2009.

3. The learned Single Judge held
that the proceedings which are pending
before the competent criminal court are in
reference to the Dowry Prohibition Act
and not in regard to any loss having been
caused to the Government and even a
final judgement in the criminal trial would
not result in any quantification of an
alleged loss sustained by the Government.
In the view of the learned Single Judge,
the power under regulation 351 of the
Civil Service Regulations could be
exercised by the State Government for
withholding or withdrawing a pension or
a part thereof, if a pensioner is convicted
of a serious crime or is guilty of grave
misconduct whereas in regulation 351-A,
the State Government is empowered 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 present case, it
was held that mere pendency of a criminal
case could not justify the withholding of
gratuity.

4. The learned counsel appearing on
behalf of the appellants has submitted that
regulations 351, 351-A and 351-AA operate
in different fields. Regulation 351-AA, it
was submitted 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
prohibition on the payment of death-cumretirement gratuity to a government servant
until the conclusion of departmental or
judicial proceedings and the issue of final
orders thereon. Hence, it was submitted that
in view of a specific prohibition contained
in regulation 351-AA and regulation 919-A
(3), gratuity could not have been paid
during the pendency of a criminal case but
as required by law, a provisional pension
has been sanctioned.

5. On the other hand, it has been
urged on behalf of the respondent that
there was no warrant or justification to
retain the payment of gratuity and the
directions issued by the learned Single
Judge are just and proper.

6. Regulation 351 provides as
follows:

"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."

Regulation 351-A insofar as is
material to this proceeding is as follows:

"351-A. 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
Government, if the pensioner is found in
departmental or Judicial proceedings to
3 All] State of U.P. and Ors. Vs. Jai Prakash
1569
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."

Explanation (b) to the second proviso
of Regulation 351-A, inter alia, provides
as follows:

"(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 a civil court."

Regulation 351-AA is as follows:

"351-AA.
In
the
case
of
a
Government Servant who retires on
attaining the age of superannuation or
otherwise
and
against
whom
any
departmental or Judicial proceedings or
any enquiry by Administrative Tribunal is
pending on the date of retirement or is to
be instituted after retirement a provisional
pension as provided in Regulation 919-A
may be sanctioned."

Finally, for the sake of a complete
appreciation of the applicable regulations,
it would be necessary to refer to
regulation 919-A, which reads as follows:

"919-A. (1) In case referred to in
Regulation
351-AA
the
Head
of
Department may authorise the provisional
pension equal to the maximum pension
which would have been admissible on the
basis of qualifying service upto the date
of retirement of the Government servant
or if he was under suspension on the date
of retirement upto the date immediately
preceding the date on which he was
placed under suspension.

(2) The provisional pension shall be
authorised for the period commencing from
the date of retirement upto and including the
date
on
which
after
conclusion
of
departmental or judicial proceeding or the
enquiry by the administrative Tribunal; as
the case may be, final orders are passed by
the competent authority.

(3) No death-cum-retirement gratuity
shall be paid to the Government servant
until the conclusion of the departmental or
judicial proceedings or the enquiry by the
Administrative Tribunal and issue of final
orders thereon.

(4)Payment of provisional pension
made under clause (1) above shall be
adjusted against final retirement benefits
sanctioned to such Government servant
upon conclusion of the proceedings or
enquiry referred to in clause (3) but no
recovery shall be made where the pension
finally sanctioned is less than the
provisional pension or withheld either
permanently or for special period."

7. Now, regulation 351 reserves to
the State Government the right to
withhold or withdraw pension or a part
thereof upon a pensioner being convicted
of a serious crime or being guilty of a
grave misconduct. Conviction of a serious
crime within the meaning of regulation
351 postulates that after a criminal trial, a
pensioner has been found guilty of an
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
offence involving a serious crime. In
other words, there has to be a judicial
determination by which the pensioner is
convicted of a serious crime. Regulation
351-A reserves to government the right to
withholding or withdrawing of pension
and the right to order a recovery from the
pension, if a pensioner is found in
departmental or judicial proceedings to be
guilty of grave misconduct or to have
caused
a
pecuniary
loss
to
the
Government
by
his
misconduct
or
negligence. Hence, regulation 351-A
operates in two areas:

(i) if the pensioner is found in
departmental or judicial proceedings to be
guilty of grave misconduct;

or

(ii) if the pensioner is found in
departmental or judicial proceedings to
have caused pecuniary loss to the
government
by
his
misconduct
or
negligence, during service or on reemployment.

Government
has
the power to
withhold or withdraw the pension and a
power to recover any pecuniary loss
suffered. Regulation 351-A postulates that
there has to be a determination in
departmental or judicial proceedings.
Regulation 351-AA deals with a situation
where
a
departmental
or
judicial
proceeding or any enquiry by the
Administrative Tribunal is pending on the
date of retirement or is to be instituted
after
retirement
in
which
case
a
provisional pension under regulation 919A
may
be
sanctioned.
Where
a
departmental or judicial proceeding is
pending on the date of retirement,
regulation 351-AA stipulates that a
provisional pension would be admissible
and the modalities for the payment of a
provisional pension are prescribed under
regulation 919-A. Regulation 919-A (1)
makes a reference to the situation which
is referred in regulation 351-AA and
authorises the payment of a provisional
pension by the Head of Department. The
provisional pension is to be authorised for
the period commencing from the date of
retirement upto and including the date of
conclusion of departmental or judicial
proceedings or, as the case may be, the
enquiry by the Administrative Tribunal.
Regulation
919-A
(3)
contains
an
expression prohibition on the payment of
death-cum-retirement
gratuity
to
a
government servant until the conclusion
of the departmental proceeding, judicial
proceeding or as the case may be, an
enquiry by the Administrative Tribunal.
Regulation 41 provides that except when
the
term
'Pension'
is
used
in
contradistinction to gratuity, 'Pension'
would include gratuity. Consequently,
regulation 919 (3) which contains a bar on
the payment of gratuity till the conclusion
of a departmental or judicial proceeding
would allow the payment of a provisional
pension stipulated in clause (1) of
regulation 919-A.

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
3 All] Committee of Management, Anjuman Kherul Almin & Anr. Vs. State of U.P. and Ors. 1571
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
another1, it has been held that clause 3 of
regulation 919-A is a 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 & Anr2, 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).

11. In the circumstances, we are of
the view that the order passed by the
Superintendent
of
Police,
Etah
withholding the payment of gratuity until
the conclusion of the criminal trial was
correct and proper and was in accordance
with the provisions of regulation 351-AA
read with regulation 919-A (3). The
respondent would however be entitled to
the payment of provisional pension as
contemplated in law.

12. In view of the above, we allow
the appeal and set aside the impugned
order of the learned Single Judge dated 10
May 2013. In consequence, the petition
which has been filed under Article 226 of
the Constitution shall stand dismissed.
There shall be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2013

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal (D) No. 1286 of 2013

Committee of Management,Anjuman Kherul
Almin & Anr. ...Appellants
Versus
State of U.P. and Ors... .Respondents

Counsel for the Appellants:
Sri Yogish Kumar Saxena

Counsel for the Respondents:
C.S.C., Sri N.L. Pandey

High Court Rules-Chapter VIII Rule-5Special Appeal-Societies Registration Act,
1860-Section
25(i)-
Order
passed
by
Deputy Registrar-accepting the claim of
rival-claimant-writ petition dismissed on
ground of alternative remedy to approach