# Virendra Kumar Srivastava v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Writ-A No. 10156 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-srivastava-v-state-of-u-p-ors-47756
- **Pages:** 7

## Headnote

A. Service Law - Pension and Gratuity -
Civil Services Regulations - Article 351-A,
Regulation 919A - During the pendency of
disciplinary proceedings the government
servant is not entitled to gratuity but is
entitled
only
to
provisional
pension.
Pendency of departmental/judicial proceedings
or any inquiry or enquiry to be instituted after
retirement would not empower the state
government
to
withhold
pension,
but
Government
servant
maybe
sanctioned
provisional pension, computed as per rules. It
follows that the full pension has to be computed
on conclusion of proceedings/inquiry as the case
may be. (Para 13, 15, 16)

Article 351-A empowers the governor to
withhold or withdraw pension or a part
of it permanently off a specified period
and order recovery from pension for
pecuniary loss caused to the government
because of the pensioner in departmental
proceedings or Judicial proceedings where he
has been found (i) guilty of grave misconduct
or (ii) do of course back in early loss to the
government by misconduct or negligence
during his service period. The proviso to the
article spells out the circumstances/conditions
in
which
the
departmental
proceedings/Judicial proceedings are required
to
be
instituted
for
the
purpose
of
withholding/withdrawing pension. (Para 11)

The State Governments/Governor reserves to
itself the power and right to withhold or
withdraw pension or part thereof, whether
permanently or for specified period or to order
recovery from pension or part thereof, whether
permanently or for a specified. Or to order
recovery from pension of the whole or part of
any pecuniary loss caused to the government
upon conclusion of the disciplinary/judicial
proceedings. (Para 12)
50 INDIAN LAW REPORTS ALLAHABAD SERIES
In the present case the criminal proceedings are
pending against the petitioner where the FIR
was lodged on 16.07.1998 and the charge sheet
was filed on 29.01.2000 and the trial is
underway. And it is only because of the
pendency of the criminal proceedings against
the petitioner that his post retiral dues including
pension have been withheld. The case of the
petitioner is covered by the judgment of the full
bench in the case of Shiv Gopal (infra) and
according to regulation 919A, the petitioner is
not entitled for gratuity till the criminal
proceedings are pending, but he is entitled to
provisional pension and other post retiral dues
for which there is no legal embargo. (Para 18,
20)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

10 All. Virendra Kumar Srivastava Vs. State of U.P. & Ors.
49
Court in Neeraj Kumar Pandey (Supra),
this Court is of the firm view that mere
pendency of a criminal case coupled with
this fact that petitioner has been permitted
to continue in service and also granted
promotion, cannot be a ground for denying
promotion. Further, additional fact may be
taken into consideration i.e. subsequent
service record of petitioner while opening
the sealed cover envelop and in case
subsequent service record of petitioner is
found excellent, unblemished, without any
punishment, the same should have been an
additional ground to grant him promotion.

14. Therefore, under such facts and
circumstances,
impugned
order
dated
12.8.2021 passed by respondent No. 1 is
contrary to the provisions of Government
Orders dated 28.05.1997 & 09.01.2018 as
well as law laid down by this Court in the
matter of Neeraj Kumar Pandey (Supra),
which is not sustainable and hereby set
aside.

15. Accordingly, the writ petition is
allowed. No order as to costs.

16. Respondent No. 1 is directed to
take necessary action to open the sealed
cover envelop and grant promotion to the
petitioner maximum within six weeks from
the date of production of certified copy of
this order with all consequential benefits.
----------
(2022) 10 ILRA 49
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 10156 of 2020

Virendra Kumar Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Ghayasuddin Khan

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and Gratuity -
Civil Services Regulations - Article 351-A,
Regulation 919A - During the pendency of
disciplinary proceedings the government
servant is not entitled to gratuity but is
entitled
only
to
provisional
pension.
Pendency of departmental/judicial proceedings
or any inquiry or enquiry to be instituted after
retirement would not empower the state
government
to
withhold
pension,
but
Government
servant
maybe
sanctioned
provisional pension, computed as per rules. It
follows that the full pension has to be computed
on conclusion of proceedings/inquiry as the case
may be. (Para 13, 15, 16)

Article 351-A empowers the governor to
withhold or withdraw pension or a part
of it permanently off a specified period
and order recovery from pension for
pecuniary loss caused to the government
because of the pensioner in departmental
proceedings or Judicial proceedings where he
has been found (i) guilty of grave misconduct
or (ii) do of course back in early loss to the
government by misconduct or negligence
during his service period. The proviso to the
article spells out the circumstances/conditions
in
which
the
departmental
proceedings/Judicial proceedings are required
to
be
instituted
for
the
purpose
of
withholding/withdrawing pension. (Para 11)

The State Governments/Governor reserves to
itself the power and right to withhold or
withdraw pension or part thereof, whether
permanently or for specified period or to order
recovery from pension or part thereof, whether
permanently or for a specified. Or to order
recovery from pension of the whole or part of
any pecuniary loss caused to the government
upon conclusion of the disciplinary/judicial
proceedings. (Para 12)
50 INDIAN LAW REPORTS ALLAHABAD SERIES
In the present case the criminal proceedings are
pending against the petitioner where the FIR
was lodged on 16.07.1998 and the charge sheet
was filed on 29.01.2000 and the trial is
underway. And it is only because of the
pendency of the criminal proceedings against
the petitioner that his post retiral dues including
pension have been withheld. The case of the
petitioner is covered by the judgment of the full
bench in the case of Shiv Gopal (infra) and
according to regulation 919A, the petitioner is
not entitled for gratuity till the criminal
proceedings are pending, but he is entitled to
provisional pension and other post retiral dues
for which there is no legal embargo. (Para 18,
20)

Writ petition dismissed. (E-4)

Precedent followed:

1. Shivagopal Vs St. of U.P. & ors., Special
Appeal No. 40 of 2017, decided on 08.05.2019
(Para 7)

Precedent distinguished:

1. Udai Naraian Ojha Vs State of U.P. & ors.
Writ-A No. 27391 of 2012 delivered on
02.11.2020 (Para 5)

2. St. of Jharkhand & ors. Vs Jitendra Kumar
Srivastava passed in Civil Appeal No. 6770 of
2013 (Para 17)

(Delivered by Hon'ble Alok Mathur, J.)

1. The question which falls for
consideration before this court in the
present is whether the government servant
is entitled for full pension and gratuity
where criminal proceedings are pending
against him?

2. It has been submitted by learned
counsel for the petitioner that the petitioner
was appointed as Assistant Wireless
Operator in the Department of the Wireless,
Police, Mahanagar, Lucknow on 16.6.1979
and has superannuated from the post of
Principal/Head Wireless Operator one
31.3.2019. During his service a first
information report was lodged against him
in Case Crime No.249/1998 under sections
- 417/467/468/471/218 IPC at Police
Station,
Mahanagar,
Lucknow.
The
chargesheet has been filed in the said case
on 29.01.2000 and the trial is in progress.

3. Subsequent to the lodging of the
first information report the petitioner was
suspended from service and disciplinary
proceedings were also initiated against him
which were concluded in favour of the
petitioner where he was exonerated, and the
order of suspension was revoked on
10.09.2004.

4. That subsequent to his retirement it
has been submitted that no disciplinary
proceeding are pending against him, but by
means
of
the
impugned
orders
the
respondents have withheld the regular
pension and gratuity on account of the fact
that the criminal case is pending against
him.

5. In support of his submissions the
counsel for the petitioner has relied upon
the judgement of this court rendered by
coordinate bench of this court in the case of
Udai Naraian Ojha vs State of U.P and
others Writ A no. 27391 of 2012 delivered
on 02.11.2020.

6. It was submitted that in the case of
Udai Narayan Ojha (supra), the petitioner
therein had superannuated on 31.12.2011
from the post of Assistant Sub Inspector in
U.P Police and a criminal case was lodged
against him in 2007 under section 409 IPC
which
was
pending
investigation.
Subsequently the charge sheet was filed on
20.4.2013 subsequent to his superannuation
and the opposite parties had withheld his
10 All. Virendra Kumar Srivastava Vs. State of U.P. & Ors.
51
gratuity. The court had considered the
question:-

"whether the amount of gratuity
payable to retired employee of state could
be withheld merely on account of pendency
of criminal investigation against him at the
time of retirement. The connected issue is
whether the charge sheet filed against the
petitioner,
subsequently,
would
justify
withholding of gratuity even if the charges
relate to a period which date back to more
than
4
years
from
the
date
of
superannuation?"

7. The SingleJudge after considering
the Full Bench of this court in Special
Appeal no. 40 of 2017 (Shivagopal versus
state of U.P and four others) decided on
08.05.2019, as well as provisions of Article
351/351A
and
the
Civil
Services
Regulations and allowed the writ petition
after recording the following :-

"8. The power of State to
withhold pension and gratuity, therefore,
must be exercised strictly as per the
applicable law and if the State action is not
found to be in consonance with it, the
withholding of gratuity would violate
Article 300-A of the Constitution of India.
The denial of such constitutional right,
therefore, would be liable to be interfered
with by this Court under Article 226 of the
Constitution of India.

9. Even otherwise, the period of 4
years is a reasonable period from the date
of the event, leading to submission of
charge-sheet and the employee cannot be
made to suffer for any un-explained or
undue delay on the part of the State or the
investigating agency. It is, otherwise, not
shown by the respondents that such delay
was attributed to any act or omission on
part of the petitioner. The right 9 of State to
proceed in accordance with law, is
otherwise available by virtue of Article 351
of Civil Services Regulations if the charges
are found proved in judicial proceedings
and the public interest also would not be
adversely affected, if the gratuity due is
paid to the government servant. In view of
the above discussions, this Court has no
hesitation in holding that action of
respondents in withholding payment of
gratuity to petitioner is wholly illegal,
arbitrary and cannot be sustained. 10. Writ
petition succeeds and is allowed. The order
dated 28.1.2012 passed by the respondent
no. 3, so far as it relates withholding of
gratuity payable to petitioner is concerned,
is set aside. A writ of mandamus is issued
to the respondents to forthwith release the
withheld amount of gratuity together with
6% interest. In case the amount is not paid
within four months from today, the
petitioner shall be entitled to enhanced rate
of interest at the rate of 8% per annum, and
it shall be open for the authorities of the
State to realise the additional interest from
the salary of the officer found responsible
for not ensuring release of gratuity to
petitioner in terms of this order."

8. It has been submitted by the
counsel for the petitioner the facts of the
case in the case of Udai Narain Ojha are
quite similar. In the case of Udai Narain
Ojha the decision to withhold gratuity was
taken subsequent to filing of the charge
sheet against him when the criminal trial/
Judicial proceedings were pending against
him, and accordingly prayed that his
petition may be allowed in similar terms.

9. Per contra, the learned Standing
counsel has opposed the prayer made in the
writ petition and submitted that the
controversy involved in the present case is
fully covered by the judgement of the full
52 INDIAN LAW REPORTS ALLAHABAD SERIES
bench in the case of Shivagopal vs state of
U.P Special appeal no.40 of 2017 decided
on 08.05.2019. It has been submitted that
before the Full Bench the question which
was considered as stated in para 3 of the
Judgment was:-

"3. In the batch of writ petitions
the controversy involved is with regard to
the entitlement of the government servant
to receive death come retirement gratuity
on superannuation or otherwise pending
judicial proceedings."

10. While answering the aforesaid
question the Full Bench considered that the
civil servants' claim to pension and gratuity
is regulated by regulations/rules in force at
the time when the officer demits office on
attaining the age of superannuation or
otherwise
from
the
service
of
the
government. The Full Bench concurred
with the judgement of the division bench in
the case of Sri Pal Vaish vs U.P Power
corporation limited and another and
Jayprakash
and
disagreed
with
the
judgement in the case of Bhagwati Prasad
Verma Vs state of U. P and others to hold
that "pension includes gratuity" under the
civil services regulations In a reference to
article 351-A.

11. The Full bench considered that
article 351-A empowers the governor to
withhold or withdraw pension or a part of it
permanently off a specified period and order
recovery from pension for pecuniary loss
caused to the government of the pensioner in
departmental
proceedings
or
Judicial
proceedings where he has been found (i)
guilty of grave misconduct or (ii) do of
course back in early loss to the government
by misconduct or negligence during his
service period. The proviso to the article
spells out the circumstances/ conditions in
which the departmental proceedings/ Judicial
proceedings are required to be instituted for
the purpose of withholding/withdrawing
pension.

12. It was also observed that the State
Governments/Governor reserves to itself the
power and right to withhold or withdraw
pension or part thereof, whether permanently
or for specified period or to order recovery
from pension or part thereof, whether
permanently or for a specified. Or to order
recovery from pension of the whole or part of
any pecuniary loss caused to the government
upon conclusion of the disciplinary/judicial
proceedings.

13. The Full Bench also considered the
provisions applicable where the departmental
or judicial proceedings are pending on the
date of retirement. It considered the
provisions of article 351AA inserted vide
notification
rated
24th
October
1980,
according to which where the proceedings or
inquiry are pending against the government
servant on date of superannuation, the
government servant shall be entitled to
provisional
pension.
In
other
words,
pendency
of
departmental/judicial
proceedings or any inquiry or enquiry to be
instituted after retirement would not empower
the state government to withhold pension, but
Government
servant
maybe
sanctioned
provisional pension, computed as per rules. It
follows that the full pension has to be
computed
on
conclusion
of
proceedings/inquiry as the case may be.

14. The full bench further noticed the
provisions of article 919A of the civil
services regulation and held that:-

"56. Sub-Clause (3) to Article 919A is negatively worded, it categorically
mandates that gratuity shall not be paid to
10 All. Virendra Kumar Srivastava Vs. State of U.P. & Ors.
53
the government servant until conclusion of
the departmental/or judicial proceedings or
enquiry by the Administrative Tribunal. On
plain reading, it is clear that in the event of
pending proceedings/enquiry there is an
embargo mandating that government servant
shall not be entitled to gratuity until
conclusion of the pending proceedings and
final orders being issued thereon by the
competent
authority.
That
what
was
subservient/inert in the definition of pension
that "pension includes gratuity" (Article 41)
was made explicit and in contradiction to
pension that gratuity is not payable to
government servant pending disciplinary
proceedings/or judicial proceedings, but the
provision {Sub Clause (1)} is positively
worded entitling the government servant
provisional pension equal to maximum
pension, admissible to the government
servant on the basis of the qualifying service
up to the date of retirement or suspension as
the case may be. The provision (Sub-clause
(3)) employs the word 'shall' thus making it
mandatory. Article 351-AA uses the word
'may', thus leaving it to the competent
authority to sanction provisional pension. We
have not come across any provision in the
Civil Service Regulations that prohibits or
imposes restriction on sanction of provisional
pension. The government servant in our
opinion is entitled to provisional pension
pending proceedings/enquiry.

57. Article 351-AA and 919-A get
invoked
in
the
event
of
pending
departmental/judicial proceedings or an
enquiry by Administrative Tribunal against
the government servant. As against Article
351 and 351-A invoked upon the outcome of
the
disciplinary/judicial
proceedings.
It
follows that where the government servant
retires
on
attaining
the
age
of
superannuation or otherwise and against
whom any departmental/judicial proceedings
or any enquiry by the Administrative
Tribunal is pending on the date of retirement
or to be instituted after retirement, the
following consequences flow: (i) government
servant is entitled to provisional pension
equal to maximum pension; (ii) no gratuity is
payable
pending
departmental/judicial
proceedings or the enquiry; (iii) full pension
(commutation of pension) and gratuity is
payable upon conclusion of the pending
departmental/judicial
proceedings/enquiry
and final order being passed thereon by the
competent authority."

15. After the above discussion it was
held
that
during
the
pendency
of
disciplinary proceedings the government
servant is not entitled to gratuity but are
entitled only to provisional pension, in the
following terms:-

"64. In view of the specific
provision viz. Article 351-AA and 919-A, a
government
servant
against
whom
disciplinary/judicial
proceedings
is
pending on retirement or to be instituted,
the government servant is not entitled to
gratuity, but to provisional pension subject
to the outcome of the proceedings/enquiry.
It is not open to the government servant at
that stage/or during pendency of the
disciplinary/judicial
proceedings
to
contend that since allegations of 'grave
misconduct' or pecuniary loss to the
Government, prima facie, is not made out
from the charge(s), therefore, he is entitled
to full pension and gratuity. The stage to
entertain such a plea has not arisen yet.

64. We are in agreement with and
approve the ratio of Sri Pal Vaish and Jai
Prakash on the proposition of law that
government servant is not entitled to
gratuity but to provisional pension during
pendency of proceedings/enquiry.

65. We accordingly hold that
during pendency of proceedings/enquiry
54 INDIAN LAW REPORTS ALLAHABAD SERIES
government servant shall be sanctioned
provisional pension and no gratuity is
payable for the period upto conclusion of
the proceedings/enquiry and orders being
passed thereon by the competent authority.

66. The question that arises is
whether the government servant/pensioner
can seek intervention at a stage before the
competent authority has had the occasion
to pass appropriate order upon conclusion
of the disciplinary/judicial proceedings/or
enquiry by Administrative Tribunal. We are
of the opinion that such a course is not
available to the pensioner and if allowed
would
entail
serious
consequences,
otherwise not mandated by the Regulations.
It
is
not
open
to
the
government
servant/pensioner, in view of the conjoint
reading of the Articles to pre-empt the
pending proceedings/enquiry by walking
away
with
pension/gratuity
without
awaiting the outcome/conclusion of the
disciplinary/judicial proceedings/enquiry.
The competent authority upon conclusion
of the proceedings would be in a position to
apply its mind on the outcome of the
proceedings/enquiry
and
pass
order
thereon
either
withholding/withdrawing/reduction
of
pension or directing recovery of pecuniary
loss from pension under Articles 351/351-A
of the Civil Service Regulations."

16. The full bench in the case of
Shivagopal (supra) has considered the
provisions of article 919A of the civil
services regulations it has in unequivocal
terms held that during pendency of
disciplinary or judicial proceedings gratuity
cannot be paid.

17. The counsel for the petitioner has
relied upon the judgment of the Supreme
Court in the case of state of Jharkhand
and
others
versus
jitendra
Kumar
Srivastava passed in civil appeal number
6770 off 2013 while interpreting provisions
of rule 43(b) of the Bihar pension held that
:-

"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."

18. In the present case the criminal
proceedings
are
pending
against
the
petitioner where the First Information
report was lodged on 16.07.1998 and the
charge sheet was filed on 29.01.2000 and
the trial is underway. And it is only because
of
the
pendency
of
the
criminal
proceedings against the petitioner that is
post retiral dues including pension have
been withheld. The case of the petitioner is
covered by the judgment of the full bench
in the case of Shiv Gopal (supra) and
according to regulation 919A of the Civil
Service Regulation, the petitioner is not
entitled for payment of gratuity during
pendency of criminal case.

19. The judgement of the Supreme
Court in the case of State of Jharkhand
versus jitendra Kumar Srivastav is not
applicable in the present case as the
Supreme Court therein has interpreted the
provisions of Rule 43(b) of Bihar pension
rules which lay down a very different
procedure and criteria for grant of pension
and post retiral dues and hence the benefit
10 All. Smt. Kiran Verma Vs. State of U.P. & Ors.
55
of the same cannot be claimed by the
petitioner. The benefit of the judgment in
the case of Uday Narayan Ojha is also not
applicable in case of the practitioner as it is
seen that the charge sheet was filed prior to
his retirement and within 4 years of lodging
of the first information report, enhanced the
criminal proceedings are also not hit by the
provisions of article 351A of the CSR.

20. Considering the aforesaid, this
Court is of the considered view that the
petitioner is not entitled for gratuity till the
criminal proceedings are pending, but he is
entitled to provisional pension and other
post retiral dues for which there is no legal
embargo.

21. In light of the above, subject to
the observations made above, the writ
petition is bereft of merits and is
accordingly dismissed.
----------
(2022) 10 ILRA 55
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ-A No. 12615 of 2022

Smt. Kiran Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Deepak Kumar Verma, Smt. Akansha
Verma

Counsel for the Respondents:
C.S.C.

A. Service Law - Maternity leave -
Maternity Benefit Act, 1961 - Section 2,
3(e) r/w Section 2(1) - Fundamental Rules
- Rule 153 - In view of the 3rd Proviso to
Rule 153 of the Fundamental Rules, no
maternity leave shall be admissible to a
government servant until for the period of
2 years from the date of expiry of the last
maternity leave granted under the Rules.
(Para 7, 8, 10)

B. Applicability of Maternity Benefit Act,
1961 - Provisions of grant of maternity
leave under the Maternity Benefit Act,
1961
are
applicable
to
every
establishment being a factory, mine or
plantation including any such establishment
belonging to Government and to every
establishment wherein persons are employed
for the exhibition or equestrian, acrobatic and
other
performances.
It
also
applies
to
establishment within the meaning of any
law for the time being in force in relation
to shops and establishments in a State, in
which ten or more person are employed, or
were employed, on any day of the preceding
twelve months. (Para 12)

It is not disputed that petitioner is a
government servant and it is also not
disputed that she is an employee of the State
Government and the Fundamental Rules 153
applies for service of Government employees as
also
for
the
grant
of
maternity
leave.
Petitioner is not an employee under an
establishment as defined in Section 3(e)
of the Maternity Benefit Act, 1961, r/w
Section 2(1), i.e., petitioner is not an employee
in the department, mine or plantation in a
establishment so as to exhibit of equestrian,
acrobatic and other performance etc. Hence it is
evident that petitioner is not an employee of
establishment. (Para 14, 15)

Petitioner's second application for maternity
leave (from 05.07.2022 to 31.12.2022) is within
two years from the date of expiry of the first
maternity leave (which was sanctioned till
27.12.2021) and in view of 3rd proviso to Rule
153 of the Fundamental Rules, the maternity
leave could not be granted to the petitioner.
(Para 11, 16)

Writ petition dismissed. (E-4)

Precedent followed: