We have heard Sri Ram Kishore Gupta on behalf of the appellants and Sri Shashank Shekhar Singh, Additional Chief Standing Counsel for the respondents.
1
[AFR]
[RESERVED]
Case : SPECIAL APPEAL No. 40 of 2017
Appellant : Shivagopal
Respondent : State Of U.P. And 4 Others
Counsel for Appellant : Ram Kishor Gupta
Counsel for Respondent : C.S.C.
And
Case : WRIT A No. 47540 of 2015
Petitioner : Kalika Prasad Yadav
Respondent : State Of U.P. And 2 Others
Counsel for Petitioner : B.N. Singh Rathore
Counsel for Respondent : C.S.C.
And
Case : WRIT A No. 47532 of 2015
Petitioner : Deshraj
Respondent : The State Of U.P. And 2 Others
Counsel for Petitioner : B.N. Singh Rathore
Counsel for Respondent : C.S.C.
And
Case : WRIT A No. 47537 of 2015
Petitioner : Kaushlesh Sunder Pandey
Respondent : State Of U.P. And 2 Others
Counsel for Petitioner : B.N. Singh Rathore
Counsel for Respondent : C.S.C.
And
Case : WRIT A No. 29319 of 2017
Petitioner : Chandrakesh Yadav
Respondent : State Of U.P. And 2 Others
Counsel for Petitioner : Amrit Raj Chaurasiya
Counsel for Respondent : C.S.C.
And
Case : WRIT A No. 29320 of 2017
Petitioner : Sachidanand Ram
Respondent : State Of U.P. And 2 Others
Counsel for Petitioner : Amrit Raj Chaurasiya
Counsel for Respondent : C.S.C.
Hon'ble Pankaj Mithal,J.
Hon'ble Suneet Kumar,J.
Hon'ble Rohit Ranjan Agarwal,J.
2
Suneet Kumar,J.
1.We have heard Sri Ram Kishore Gupta on behalf of the
appellants and Sri Shashank Shekhar Singh, Additional Chief
Standing Counsel for the respondents.
2.The written submission of Sri B.N. Singh Rathore has also
been considered.
3.In the batch of writ petitions the controversy involved is with
regard to entitlement of the government servant to receive death
cumretirement gratuity on superannuation or otherwise pending
judicial proceedings.
4.Petitioners are government employees (Lekhpal/Police
Officials), who have retired on attaining the age of
superannuation, and by the impugned orders, their full pension
and gratuity has been kept in abeyance pending judicial
proceedings against them. The petitioners have sought quashing of
the impugned orders declining full pension and gratuity during
pendency of the judicial proceedings and further have sought an
additional direction to the respondentauthority to release/pay full
pension and gratuity on the plea that pension and gratuity cannot
be withheld during pendency of the judicial proceedings or that the
allegations/charge do not pertain to grave misconduct/serious
crime or having caused pecuniary loss.
5.The learned Single Judge upon noticing conflicting Division
Bench decisions rendered in State of U.P., and others Vs. Jai
Prakash
1
(Jai Prakash case) on the one hand and in particular the
decision rendered by the Division Bench in State of U.P. and
others Vs. Faini Singh
2
(Faini Singh case) and others on the other
hand, referred the matter to the larger Bench.
6.The learned Single Judge while referring the matter has not
1. 2014 (1) ADJ 207
2. Special Appeal Defective No. 416 of 2014, decided on 25.04.2014
3
formulated or referred any particular question of law to be
answered by the larger Bench. The Full Bench of this Court in
Tuples Educational Society and another Vs. State of U.P., and
another
3
opined that the referring Court has ample power under
Chapter V Rule6
4
to refer a case to a larger Bench either framing
questions of law or the entire case.
7. We have gone through the pleadings of the writ petitions
and the reference order with the assistance of the learned counsel
parties, in our opinion the following points arise for consideration;
(i) whether government servant upon retirement on attaining the
age of superannuation or otherwise is entitled to full
pension/deathcumretirementgratuity on and during pendency of
judicial proceedings; (ii) whether the government
servant/pensioner is entitled to full pension/deathcumretirement
gratuity before conclusion of the disciplinary proceedings/or
judicial proceedings and final orders being passed thereon by the
competent authority; (iii) whether the view expressed in Jai
Prakash lays down the correct law or that expressed in Faini
Singh the other decisions noted in the referring order.
Concept of Pension:
8.It is accepted position of law that pension and gratuity are
not bounties. An employee earns these benefits by dint of his long,
continuous, faithful and unblemished service. In case of a civil
servant whose service conditions are governed by statutory rules;
pension, a deferred salary, is a right and the payment of
pension/gratuity does not dependent upon the discretion of the
Government. Government servant coming within the Rules is
entitled to claim pension. The right to receive pension flows not by
any order to that effect but the right to receive pension flows by
virtue of the Rules governing pension and gratuity.
3. (2008) 2 UPLBEC 1611
4. High Court Rules, 1952
4
9.The Supreme Court in D.S. Nakara vs. Union of India
5
placing reliance upon the Constitution Bench decision rendered in
Deokinandan Prasad vs. State of Bihar
6
, and State of Punjab vs.
Iqbal Singh
7
, observed as follows:
“The antiquated notion of pension being a bounty a
gratituous payment depending upon the sweet will or grace of
the employer not claimable as a right and, therefore, no right
to pension can be enforced through Court has been swept under
the carpet by the decision of the Constitution Bench in Deoki
Nandan Prasad (supra) wherein this Court authoritatively
ruled that pension is a right and the payment of it does not
depend upon the discretion of the Government but is governed
by the rules and a Government servant coming within those
rules is entitled to claim pension. It was further held that the
grant of pension does not depend upon any one’s discretion. It
is only for the purpose of quantifying the amount having
regard to service and other allied maters that it may be
necessary for the authority to pass an order to that effect but
the right to receive pension flows to the officer not because of
any such order but by virtue of the rules. This view was
reaffirmed in Iqbal Singh (supra)”.
10.Thus the hard earned benefit which accrues to an employee
is in the nature of 'property'. This right of property cannot be taken
away without due process of law as per the provisions of Article
300A of the Constitution of India. It, therefore, follows that
executive instructions not having statutory character and,
therefore, cannot be deemed as 'law' within the meaning of Article
300A. The State Government cannot withhold even a part of
pension or gratuity if there is no provision for withholding pension
or gratuity in the given situation. For withholding of pension or
gratuity there must be an express provision in the Rules failing
which the State Government is not competent to withhold pension
or gratuity on the strength of executive instructions not having the
force of law. (Refer: State of Jharkhand vs. Jitendra Kumar
5. 1983 (1) SCC 305
6. 1971 (2) SCC 330
7. 1976 (2) SCC 1
5
Srivastava and others
8
; U.P. Raghavendra Acharya vs. State of
Karnataka
9
)
Civil Service Regulations:
11.Having explained the legal position, it would be apposite to
examine the Rules/Regulations relating to pension and gratuity
admissible to the servants of the State Government. The procedure
for grant of pension is regulated by the provisions of the Civil
Service Regulations. It served as a comprehensive Code regulating
conditions of service of civil servants relating to pay, pension,
leave, traveling allowances etc. The State Government thereafter
framed its own Fundamental Rules, Leave Rules, Traveling Rules
etc., thereby, the provisions in the Civil Service Regulations with
the exception of Pension Rules have become obsolete. The
provisions relating to pension in the Civil Service Regulations have
from time to time been modified and amended under the rule
making power of the State Government (proviso to Article 309 of
the Constitution of India). The State Government has framed
several Rules for the benefit of its employees. The U.P. Liberalized
Pension Rules, 1961, affords relief to the families of unfortunate
government servants who died prematurely during service. The
U.P. Retirement Benefit Rules, 1961, and the Family Pension
Scheme, 1961, govern the State employees.
12.Civil Service Regulations have statutory character. Article 1
of the Civil Service Regulations, relating to pension, in its
application in the State of Uttar Pradesh, provides that the
“Regulations are intended to define the conditions under which
pension is earned by servant in the civil department and in what
manner it is calculated”. Article 348A provides that pension shall
be granted subject to conditions contained in Chapter XXI of the
8. 2013 (12) SCC 210
9. 2006 9 SCC 630/640
6
Regulations. Article 353 lays down that no pension shall be
granted to an officer dismissed or removed from service for
misconduct, insolvency or inefficiency. The claim of pension is
determined by length of service, as provided by Article 474 to 485.
Full pension is admissible under the Regulations/Rules not as a
matter of course but only if the service rendered by the
government servant is approved. No doubt pension is no more a
bounty; instead it is a right earned by the government servant on
the basis of length of service, none the less, grant of full pension
depends on the approval of service rendered by the employee. In
other words, if the service rendered by the government servant has
not been satisfactory he would not be entitled to full pension and it
would always be open to the Government/Governor to withhold or
reduce the amount of pension in accordance with the statutory
rules. (Article 351, 351A)
13.The competent authority prior to 1996 had an additional
power under Article 470 to make reduction of pension in case the
services of the government servant was not thoroughly satisfactory.
The said Article has since been deleted by C.S.R. Twelth
Amendment.
10
14.These provisions, in a nutshell, ordain the government
servant to perform his duties faithfully and honestly. Merely
because a government servant retires from service on attaining the
age of superannuation or otherwise he cannot escape the liability
of misconduct/and negligence or financial irregularities.
Pension/DeathcumRetirement Gratuity
11
:
15.A civil servant's claim to pension and gratuity, therefore, is
regulated by the Regulations/Rules in force at the time when the
officer demits office on attaining the age of superannuation or
10. vide Notification No. 3-424/X-933/89 Finance (General) Section-3 dated 12.2.1996
11. gratuity
7
otherwise from the service of the government.
16.Chapter XVIII of Civil Service Regulations provides for
'Conditions of Grant of Pension'; SectionI to the Chapter
provides the classification of pensions. Article 424 reads thus:
“424. Pensions for “Superior and Inferior services” are divided
into four classes, the Rules for which are prescribed in the
following section of this Chapter :
(a) compensation pensions (See Section II),
(b) invalid pensions (See Section III),
(c) superannuation pensions (See Section IV),
(d) retiring pensions (See Section V).”
17.The 'superannuation pension' contained in Section IV of the
aforenoted Chapter reads thus:
“458. A superannuation pension is granted to an officer in
superior and inferior service entitled or compelled, by Rule to
retire at a particular age.”
18.Article 41 defines pension which reads thus:
“41. Pension— Except when the term “Pension” is used in
contradistinction to Gratuity, “Pension” includes Gratuity.”
19.Article 23A
12
defines DeathcumRetirement Gratuity.
“23A. “Deathcumretirement gratuity” means deathcum
retirement gratuity admissible, as the case may be, under Rule
3 of the U. P. Liberalized Pension Rules, 1961 or under rule 5
of the U. P. Retirement Benefits Rules, 1961.”
20.Whether the term 'pension' includes 'gratuity' came to be
settled by a Three Judge Bench of the Supreme Court in Jarnail
Singh vs. The Secretary, Ministry of Home Affairs and others
13
.
Rule 3 of CCS (Pension) Rules, 1972, defines pension in similar
terms as defined in Article 41. Rule 3(1)(o) of the C.C.S. (Pension)
Rules, 1972 reads thus:
“Clause (o) in Sub-rule (1) of Rule 3 is as under:-
“'pension' includes gratuity except when the term pension is
12. inserted vide notification dated 31 March 1970
13. AIR 1994 SC 1484
8
used in contradistinction to gratuity”
21.Rule 9 of the CCS (Pension) Rules, 1972, confers power upon
the President to withhold or withdraw pension. The provision is
similarly worded as Article 351A. Rule 9 for our convenience
reads thus:
9.Right of President to withhold or withdraw pension. (1)
The President reserves to himself the right of withholding or
withdrawing a pension or part thereof, whether permanently or
for a specified period, and of ordering recovery from a pension
of the whole or part of any pecuniary loss caused to the
Government, if, in any departmental or judicial proceedings,
the pensioner is found guilty of grave misconduct or negligence
during the period of his service, including service rendered upon
reemployment after retirement:
Provided that the Union Public Service Commission shall be
consulted before any final orders are passed”
22.Supreme Court in Jarnail Singh upon considering the
provisions held as follows:
“xxx xxx xxx Bearing in mind the definition of the term
'pension' in Rule 3(1)(o), the term 'pension' used in Rule
9(1) must be construed to include gratuity since the term
'pension', in the context, is not used in contradistinction to
gratuity. Learned counsel for the appellant, however, referred
to the amendment made in Rule 9(1) by the Central Civil
Services (Pension) Third Amendment Rules, 1991, whereby the
term 'pension' has been substituted by the expression 'pension
or gratuity, or both' and consequential amendments made in
that subrule. The question is : Whether this amendment made
in 1991 indicates, as contended by learned Counsel for the
appellant, that 'pension' alone could be withheld under Rule
9(1) and not also the gratuity prior to the amendment of Rule
9(1) in 1991. In our opinion, the definition of 'pension' in
Rule 3(1)(o) quoted above negatives the appellant's
contention and clearly indicates that the 1991
Amendment is merely clarificatory and makes explicit that
which was clearly implicit prior to that Amendment by
virtue of the definition of term 'pension' in Rule 3(1)(o).
This clarification appears to have been made only to remove
9
the doubt created by the decisions relied on by counsel for the
appellant which are considered hereafter......”
23.The Court disagreed with the observations made in D.V.
Kapoor vs. Union of India and others
14
to the effect that the
power of President in Rule 9 prior to its amendment in 1991, was
confined only to withholding pension and did not extend to
gratuity as well. The observation of the Court is based on the fact
that the clear definition of the term 'pension' in Rule 3 of CCS
(Pension) Rules was not brought to the notice of the Bench
deciding D.V. Kapoor. Accordingly, D.V. Kapoor was rendered
perincuriam.
24. Article 366 of the Constitution of India contains the
definitions for the purposes of the Constitution and in Clause 17 is
defined 'pension' to include 'gratuity' as well. This definition of
'pension' in the Constitution also indicates that conceptually the
term 'pension' includes 'gratuity'. In Article 41, of Civil Service
Regulations the term 'pension' is defined to include 'gratuity' except
when the term pension is used in contradiction to gratuity, in
consonance with the basic concept.
25.The Division Bench in Shri Pal Vaish vs. U.P. Power
Corporation Limited and another
15
and Jai Prakash correctly
appreciated that the word 'pension' to include 'gratuity'. The
provision of Article 474 of the Civil Service Regulations read with
Article 41 would indicate that 'pension' includes 'gratuity' in
reference to Article 351A. The provision of Clause(a) of Article
474 makes it clear that 'gratuity' is included under the head
'Amount of Pension'.
26.The Division Bench in Bhagwati Prasad Verma vs. State of
U.P. and others
16
(Bhagwati Prasad Verma case), in our opinion
14. 1990 AIR 1923
15. 2009 (9) ADJ 45 (DB)
16. 2008 (3) All LJ 150
10
does not lay down the correct proposition of law insofar it holds
that the word 'pension' in Article 351A would not include
'gratuity', and that gratuity cannot be withheld/withdrawn under
Article 351A. The provisions of Article 474 and 919A was not
brought to the notice of the Court. The decision was rendered on
misreading of D.V. Kapoor and the State of U.P. vs. U.P.
University Pensioners Association
17
(U.P. University Pensioners
case).
27.In U.P. University Pensioners case the issue was absolutely
different and it was not a case where gratuity and commutation of
pension was withheld on the ground of pendency of departmental
enquiry. The decision is not an authority on the issue as to whether
'pension' includes 'gratuity' under the Civil Service Regulations or
on similar Rules applicable to the Central Government employees.
The issue that the word 'pension' includes 'gratuity' stands settled
in Jarnail Singh as discussed earlier. In view of the foregoing
discussions, we do not agree with Bhagwati Prasad Verma
holding that 'pension' would not include 'gratuity' under Article
351A.
28.From the definition of 'pension', it is clear that ordinarily the
word 'pension' wherever used in the Civil Service Regulations
includes 'gratuity' except when the term 'pension' is used in
contradistinction to 'gratuity'. We accordingly hold that the term
'pension' would include 'gratuity' particularly in Article 351, 351A
of the Civil Service Regulations.
29.We accordingly approve Sri Pal Vaish and Jai Prakash. The
decisions correctly hold that 'pension' would include 'gratuity' in
reference to Article 351A.
Article 351/351A of Civil Service Regulation:
30.Part III of Civil Service Regulations commences with the
17. 1994 (2) SCC 729
11
heading “Ordinary Pension”. Chapter XV spells out the 'General
Rules' and 'Extent of Application' regarding right and entitlement
of the government servant to pension and gratuity is subject to
future good conduct, an implied condition for ever grant of
pension is contemplated under Article 351. Article 351 reads thus:
“351
18
. Future good conduct is an implied condition of ever
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.”
31.On plain reading, Article 351 confers power upon the State
Government of withholding or withdrawing pension or any part of
it, if the pensioner be convicted of 'serious crime' or be guilty of
'grave misconduct'. In other words the State Government can
withhold or withdraw pension on two grounds: (i) convicted of
serious crime; (ii) guilty of grave misconduct; but not otherwise. In
other words mere pendency of criminal case or disciplinary
proceedings is not sufficient to withhold/or withdraw pension
under Article 351.
32.The expression 'grave misconduct' is also used in Article 351
A. The question arises as to what is meant by, the expression
'serious crime' and 'grave misconduct' used in Article 351 and
Article 351A.
33. “Misconduct" is a generic term and means a transgression of
some established and definite rule of action, a forbidden act, a
dereliction from duty, unlawful behaviour, willful in character,
improper or wrong behaviour, its synonyms for misdemeanor,
misdeed, misbehaviour, delinquency, impropriety,
mismanagement, offence but not negligence or carelessness.
18. incorporated vide notification dated 27 October 1976
12
34.Thus it could be seen that the word 'misconduct' though not
capable of precise definition, on reflection receives its connotation
from the context, the delinquency in its performance and its effect
on the discipline and the nature of the duty. It may involve moral
turpitude, it must be improper or wrong behaviour; unlawful
behaviour, willful in character; forbidden act,a transgression of
established and definite rule of action or code of conduct but not
mere error of judgment, carelessness or negligence in performance
of the duty; the act complained of bears forbidden quality or
character. Its ambit has to be construed with reference to the
subject matter and the context wherein the term occurs, regard
being had to the scope of the statute and the public purpose it
seeks to serve.
35. The word "grave" qualifies 'misconduct' is used in many
senses and implies seriousness, importance, weight etc. There is,
however, a distinction between 'misconduct' and 'grave
misconduct'/and 'gravest acts of misconduct' expression used in the
State of Punjab. The adjective 'grave' in this context makes the
character of the conduct, serious or very serious. One has to apply
one's mind to the word and give a meaning in the light of the
actual deed, situation and circumstances. 'Misconduct' in order to
earn the epithet of gravity has to be gross or flagrant.
Consequently, the degree of misconduct to justify dismissal has to
be higher or more serious. Single act of misconduct could also be
grave. (Refer: Bhagwat Prasad vs. Inspector General of Police
19
,
affirmed by the Supreme Court in State of Punjab and others vs.
Ram Singh Ex. Constable
20
)
36.Expression 'serious crime' would include offences having
dangerous possible consequences. Black Law Dictionary defines
serious offence as violation of law that is significant in effect and
carries more than a six months punishment.
19. AIR 1970 Punjab 1981
20. AIR 1992 SC 2188
13
37.Section 2(54) of Juvenile Justice Act, 2015, defines 'serious
offence':
“serious offences” includes the offences for which the
punishment under the India Penal Code or any other law for
the time being in force, is imprisonment between three to seven
years.”
38.The expression 'judicial proceedings' includes civil cases,
plausible civil cases where pension can be withheld/withdrawn
would include matrimonial disputes, succession cases, right and
entitlement of spouses and their children, domestic violence, civil
death etc. involving the government servant.
39.The expression 'serious crime' has to be understood in the
context of service jurisprudence involving the government servant.
It may be any act or omission which in the opinion of the
competent authority is serious enough and calls for punitive action
in terms of Article 351. It has no bearing with the quantum of
sentence but with the nature of the offence and the degree of
involvement of the government servant in the
commission/omission of the crime.
40.Article 351A empowers the Governor to withhold or
withdraw pension or a part of it permanently or for specified
period and order recovery from pension for pecuniary loss caused
to the Government if the pensioner in departmental proceedings or
in judicial proceedings, has been found: (i) guilty of grave
misconduct or (ii) to have caused pecuniary loss to Government by
misconduct or negligence during his service. The proviso to the
Article spells out the circumstances/conditions in which the
departmental proceedings/judicial proceedings is required to be
instituted for the purposes of withholding/withdrawing pension.
Article 351A reads thus:
“351A
21
. The Governor reserves to himself the right of
withholding or withdrawing a pension or any part of it,
21. substituted vide notification dated 6 September 1961
14
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 to Government, if the pensioner is
found in departmental or judicial proceedings to 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 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
proceeding; 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 subclause (ii) of clause
(a); and
(c) the Public Service Commission, U.P. shall be consulted
before final orders are passed.
[Provided further that of the order passed by the Governor
relates to a cash dealt with under the Uttar Pradesh
Disciplinary Proceedings, (Administrative Tribunal) Rules,
1947, it shall not be necessary to consult Public Service
Commission].
ExplanationFor the purposes of this article
(a) Departmental proceeding 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
complaint is made, or a chargesheet is submitted, to a
criminal court ; and
(ii) in the case of civil proceedings, on the date on which the
15
plaint is presented or, as the case may be, an application is
made to Civil court
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.”
41.Explanation to Article 351A clarifies that departmental
proceedings shall be deemed to have been instituted: (i) when
charges are framed against the pensioner; or (ii) the officer has
been placed under suspension from such date. Further, judicial
proceedings is deemed to have been instituted against the
pensioner: (i) in the case of criminal proceedings, on date on
which complaint is made or chargesheet is submitted to a criminal
court; (ii) in case of civil proceedings on the date on which plaint
is presented or as the case may be, an application is made to Civil
Court.
42.Now we will refer to the proviso to Article 351A. The
proviso speaks about initiation of disciplinary proceedings or
judicial proceedings against the government servant after
retirement. For initiating proceedings the conditions specified
therein must be satisfied, that is, departmental proceedings as
indicated in proviso (a) if not instituted while the officer was on
duty then it shall not be instituted except:
(i).with the sanction of the Governor;
(ii).it shall be initiated on an event which took place not
more than 4 years before the institution of the proceedings;
(iii).such proceedings would be conducted by such
authority and in such place 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.
43.On perusal of Proviso and its Explanation, referred to above,
deals only with the conditions for initiation for disciplinary
16
proceedings/judicial proceedings and the limitation within which
such initiation of the proceedings can be done has been made
explicit.
44.In State of U.P. vs. Harihar Bhole Nath
22
(Harihar Bhole
Nath case), one of the issues involved therein was whether the
sanction of the Governor was required to continue the proceedings
after retirement. The Court held in negative as follows:
“But the said Rules read with the Proviso and the Explanation
appended thereto construed in their entirely clearly postulate
that the proceedings initiated before the delinquent officer
reached his age of superannuation would be valid.........The
question, however, is whether the sanction of the Governor was
required even for the purpose of continuance of the proceedings
which had already been initiated. Answer thereto must be
rendered in the negative.” (Refer: State of U.P. vs. R.C. Misra
23
)
45.The issue before the Court in State of Orissa and others vs.
Kalicharan Mohapatra and others
24
was as to whether Rule 6 of
All India Service (DeathcumRetirement Benefits) Rules, 1958,
could have been invoked during pendency of a criminal case
against the government servant, inasmuch as, the charge against
the government servant is not one of causing pecuniary loss to the
State Government by misconduct or negligence within the meaning
of the Rule. Relevant portion of Rule 6 for our purposes is
extracted:
“6. Recovery from pension:- 6(1) The Central Government
reserves to itself 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 pension of the whole or
part of any pecuniary loss caused to the Central or a State
Government, if the pensioner is found in a departmental or
judicial proceedings to have been guilty of grave misconduct or to
have caused pecuniary loss to the Central or a State Government
by misconduct or negligence, during his service, including service
rendered or re-employment after retirement.
Provided that no such order shall be passed without consulting the
22. 2006 (13) SCC 460
23. (2007) 9 SCC 698
24. AIR 1996 SC 684
17
Union Public Service Commission:-- Provided further that--
(a) such departmental proceeding, if instituted while the pensioner
was in service, whether before his retirement or during his re-
employment, shall, after the final retirement of the pensioner, be
deemed to be a proceeding under this sub-rule and shall be
continued and concluded by the authority by which it was
commenced in the same manner as if the pensioner had continued
in service;
(b) …......
(c) …......
Explanation.- For the purpose of this rule:-
(a) a departmental proceeding shall be deemed to be instituted
which the charges framed against the pensioner are issued to his
or, if he has been placed under suspension from an earlier date, on
such date and
(b) a judicial proceeding shall be deemed to be instituted--
(i) in the case of criminal proceedings, on the date on which
a complaint is made or a charge-sheet is submitted, to the
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.
(2) Where any departmental or judicial proceeding is instituted
under sub-rule (1), or where a departmental proceeding is
continued under clause (a) of the proviso thereto against an officer
who has retired on attaining the age of compulsory retirement or
otherwise, he shall be sanctioned by the Government which
instituted such proceedings, during the period commencing from
the date of his retirement to the date on which, upon conclusion of
such proceeding final orders are passed, a provisional pension not
exceeding the maximum pension which would have been
admissible on the basis of his qualifying service upto the date of
retirement, 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; but no gratuity or death- cum-retirement
gratuity shall be paid to him until the conclusion of such
proceedings and the issue of final orders thereon.
Provided that where disciplinary proceeding has been instituted
against a member of the Service before his retirement service
under rule 10 of the All India Service (Discipline and Appeal)
Rules, 1969, for imposing any of the penalties specified in clause
(i), (ii) and (iv) of sub-rule 1 of rule 6 of the said rules and
continuing such proceeding under sub-rule (1) of this rule after his
retirement from service, the payment of gratuity or Death-cum-
Retirement gratuity shall not be withheld.”
46.The Court negated the view of the Tribunal that unless the
charge expressly charges the government servant with causing
pecuniary loss to the government, the action under the Rule cannot
18
be taken. In other words the charge of causing loss is not a
condition precedent for exercising power under the Rule. Para 6
and 7 of Kalicharan Mohapatra reads thus:
“6. It is thus clear from an analysis of sub-rules (1) and (2) that
where a judicial proceeding is pending against a pensioner for
grave misconduct, the government is entitled to withhold gratuity
amount and/or death-cum-gratuity amount and is also entitled to
sanction provisional pension for the period of pendency of the said
proceedings. It is not necessary that a judicial proceeding should
relate to the charge of causing pecuniary loss to the Central or
State Government by misconduct or negligence during his
service. Sub-rule (1) of Rule 6 specifies two grounds upon which
action thereunder can be taken. One is where the pensioner is
found guilty of grave misconduct and the other is where he is
found to have caused pecuniary loss to the Central and State
Government by misconduct and negligence during his service.
Sub-rule (2) provides for orders to be made during the pendency
of such proceedings....”
7. The Tribunal was, therefore, in error in holding that unless
the charge expressly charges the pensioner with causing
pecuniary loss to Central or State Government by his negligence
or misconduct during his service, the action under sub-rule (2)
of Rule 6 cannot be taken.”
47.The Rule is similarly worded as Article 351A. The Court on
analyzing SubRule (1) and (2) of Rule 6 held that during
pendency of proceedings government servant is entitled to
provisional pension not exceeding the maximum pension, but no
gratuity shall be paid until the conclusion of such proceedings and
issuance of final orders thereon. Para 5 reads thus:
“5. A reading of sub-rule (1) of Rule 6 discloses the following
features: (a) if the pensioner is found in a departmental or judicial
proceeding to have been guilty of grave misconduct or (b) where a
pensioner is found in a departmental or judicial proceeding to
have caused pecuniary loss to the Central or State Government by
his misconduct or negligence during his service (including the
service rendered on re-employment after retirement), (c) the
Central Government is entitled to withhold or withdraw pension
19
or any part of it whether permanently or for a specified period.
The Central Government is also entitled to order recovery from
pension of the whole or part of any pecuniary loss caused to the
Central or State Government. Sub-rule (2) says that (a) where a
departmental or judicial proceeding is instituted under sub-
section (1) or (b) where a departmental proceeding is continued
under clause (a) of the proviso to sub-rule (1), (c) such employee
shall be sanctioned by the government which instituted such
proceedings a provisional pension not exceeding the maximum
pension admissible to him during the period of pendency of such
proceeding, (d) but no gratuity or death-cum-retirement gratuity
shall be paid to him until the conclusion of such proceedings
and the issuance of final orders thereon.”
48.On joint reading of Article 351 and 351A of the Civil Service
Regulations clearly indicates that the State Government/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 of the whole or part of
any pecuniary loss caused to the government in the following
eventualities:
i. pensioner be convicted of serious crime;
ii. pensioner be guilty of grave misconduct;
iii. pensioner having caused pecuniary loss to the
government by misconduct or negligence, during service
including service rendered on reemployment after
retirement;
iv. The power under Article 351 and 351A can be invoked by
the Governor/State Government upon conclusion of
disciplinary/judicial proceedings and not at the inception of
the proceedings. In other words, the condition precedent for
exercise of power under these Articles is on conclusion of the
proceedings and order being passed thereon by the
competent authority.
20
Article 351AA/Article 919A:
49.Article 351AA came to be incorporated entitling provisional
pension as against full pension (commutation of pension) to
government servant against whom departmental or judicial
proceedings or any enquiry by Administrative Tribunal is pending
on the date of retirement or is to be instituted after retirement,
such government servant may be sanctioned provisional pension as
provided in Article 919A.
50. Article 351AA reads thus:
“[351AA
25
. 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 Article 919A may be sanctioned.”
51.On plain reading of Article 351AA, it transpires that in the
eventuality of proceedings/enquiry, referred therein, is pending
against a government servant on the date of superannuation, the
government servant shall be entitled to provisional pension. In
other words, pendency of departmental/judicial proceedings or
any enquiry or enquiry to be instituted after retirement would not
empower the State Government to withhold pension, but the
government servant may be sanctioned provisional pension,
computed as per Rules. It follows that the full pension has to be
computed on conclusion of the proceedings/enquiry as the case
may be.
52.PART X relates to 'Procedure Relating to Pensions' and
Chapter XLVII is on 'Application for Grant of Pension'. For the
purpose of this Chapter 'gratuity' means 'deathcumretirement
gratuity'; and includes 'service gratuity' if any. Article 905 reads
thus:
25. inserted vide notification dated 24 October 1980
21
“905. (1) The rules in this Chapter apply to all officers under
the rule making control of the State Government.
(2) Unless there is anything repugnant in the subject or contest,
for the purposes of this Chapter “gratuity” means deathcum
retirement gratuity and includes service gratuity, if any.
53.Under this Chapter, Article 351AA/919A came to be
inserted at the same point of time. Article 919A clarifies that the
provisional pension admissible to a government servant in view of
Article 351AA would be authorized for the period commencing
from the date of retirement up to and including the date on which
after conclusion of departmental/judicial proceedings or the
enquiry by the Administrative Tribunal, as the case may be, final
orders are passed by the competent authority. Article 919A reads
thus:
“[919A
26
. (1) In case referred to in Article 351AA the
Head of Department authorize the provisional pension equal
to the maximum pension which would have been admissible
on the basis of qualifying service up to the date of retirement of
the Government servant or if he was under suspension on the
date and retirement up to the date immediately preceding the
date on which he was placed under suspension.
(2) The provisional pension shall be authorized for the period
commencing from the date of retirement up to 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 deathcumretirement gratuity shall be paid to the
Government servant until the conclusion of the
departmental proceedings, 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
proceeding or enquiry referred to in clause (3) but no recovery
shall be made where the pension finally sanctioned is less than
26. vide notification dated 19 January 1983, made effective with effect from 28 October 1980
22
the provisional pension or withheld either permanently or for
special period.”
54.At this stage, it was brought to our notice that most of the
books/commentaries on Civil Service Regulations applicable to the
state of Uttar Pradesh, do not contain the correct provision of
Article 919A. The expression 'judicial proceedings” in Subclause
(3) of Article 919A does not appear in the
textbooks/commentaries in circulation. The decisions that came to
be rendered in ignorance of the correct provision renders the
decision perincuriam, therefore, not a binding precedent.
55.Regulation 351AA/919A was made effective much after the
enactment of U.P. Liberalized Pension Rules, 1961 and U.P.
Retirement Benefit Rules, 1961. The said Rules contain specific
provision, inter alia, empowering the competent authority to make
recovery from gratuity and family pension sanctioned in the same
circumstances contemplated under Article 351A.
56.SubClause (3) to Article 919A is negatively worded, it
categorically mandates that gratuity shall not be paid to 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
23
qualifying service up to the date of retirement or suspension as the
case may be. The provision (Subclause (3)) employs the word
'shall' thus making it mandatory. Article 351AA 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 351AA and 919A 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 351A is 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.
58.At this stage reference may be made to Rule 10 of the U.P.
Liberalized Pension Rules, 1961 and Rule 9 of the U.P. Retirement
Benefit Rules, 1961. The Rules provide that the 'Governor will have
the right to effect recoveries from a gratuity or family pension
sanctioned ….... in the same circumstances as recoveries can be
effected from ordinary pension under Article 351A of the Civil
Service Regulations'.
24
59.Rule 10 of the U.P. Liberalized Pension Rules, 1961 and Rule
9 of the U.P. Retirement Benefits Rules, 1961 make it clear that
recovery can also be made from the sanctioned gratuity and family
pension in the same circumstances as recovery can be effected
from ordinary pension under Article 351A.
60.These Rules have no application while interpreting Article
351A/351AA/919A. The Division Bench in Bhagwati Prasad Verma
upon referring to the Rules held that the term 'pension' would not
include 'gratuity' within the meaning of Article 351A, therefore,
was of the view that 'gratuity' in no circumstances can be withheld
during pendency of proceedings/enquiry under Article 351A.
61.In view of the foregoing discussions, with respect, we do not
approve of the reasoning in Bhagwati Prasad Verma. Article
351AA/919A was not brought to the notice of the Court in
Bhagwati Prasad Verma. The Articles apply during pendency of
the proceedings. Further, the Rules apply where the gratuity and
family pension has been 'sanctioned' and does not deal with the
situation where sanction has been made subject to outcome of the
pending proceedings/enquiry at the time of retirement of the
pensioner (Article 351A). The decision in Bhagwati Prasad
Verma is manifestly erroneous and is overruled.
62.Similarly, the Division Bench in Ram Murti Pandey vs. State
of U.P.
27
, held that there is no provision in the Regulations to
withhold pension during pendency of criminal case. The Court was
referring to Article 351. The provision of Article 351AA and Article
919A was not brought to the notice of the Division Bench. The
decision is not binding precedent being perincurium.
63.In view of the specific provision viz. Article 351AA 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
27. 2017 (6) ADJ 494
25
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 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.
Stage at which government servant is entitled to full
pension/gratuity:
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 preempt the pending
proceedings/enquiry by walking away with pension/gratuity
without awaiting the outcome/conclusion of the
disciplinary/judicial proceedings/enquiry. The competent authority
26
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 351/351A of the Civil Service Regulations.
67.Article 351AA/919A came to be incorporated later (1980),
the rule making authority was fully aware of the existing
provisions, in particular, Article 351/351A, but the rule making
authority, in view of the plain and unambiguous language used
therein (Article 351A), while incorporating Article 351AA/919A,
did not consider it appropriate to mandate the release of full
pension/gratuity to the government servant until conclusion of the
proceedings. The entitlement to provisional pension and deferment
of gratuity during pendency of the proceedings was not made
subject to any further conditions at that stage. The stage was
deferred until orders thereon was required to be passed by the
competent authority recording satisfaction or otherwise upon
conclusion of the proceedings/enquiry.
68.The principle of statutory interpretation requires that while
interpreting a provision, the scope/ambit and impact of any other
provision or the same provision should not be rendered inoperative
or made redundant. It, therefore, follows that in cases where a
government servant is allowed to receive full pension/gratuity
during pendency or before conclusion of the proceedings, the
competent authority is denuded of its power to take a call thereon
upon conclusion of the proceedings/enquiry. The decision/order
required to be passed by the competent authority upon conclusion
of the proceedings may include: (i) whether misconduct
tantamounts to grave misconduct; (ii) whether conviction is of
serious crime; (iii) judicial proceedings includes civil cases
involving the government servant which may or may not involve
27
'grave misconduct', therefore, the decision thereon is set at naught;
(iv) a government servant under suspension at the time of
retirement walks away with full pension, treating the period of
suspension computable towards pension, without the competent
authority having an occasion to pass order, whether the period of
suspension would count towards computation pension or not, etc.
69.It, therefore, follows that the stage of passing appropriate
order under Article 351/351A by the competent authority is
mandated at the conclusion of the proceedings and certainly not at
the stage during pendency of the disciplinary/judicial proceedings.
The cause to the pensioner would arise after the order is passed by
the competent authority upon conclusion of the proceedings and
findings returned thereon. In the opinion of the competent
authority if the pensioner is guilty of grave misconduct, or
convicted of serious crime, or caused pecuniary loss, the
consequence under Article 351/351A would follow. The
government servant/pensioner would have to wait until such an
order is passed before claiming full pension and gratuity. In other
words the cause to the government servant of taking remedy
would arise after order of the competent authority is passed upon
conclusion of the proceedings/enquiry and not during pendency of
the proceedings/enquiry.
70.It is not open to the government servant to contend that he is
facing 'hardship' due to the prolonged pendency of the
proceedings. The Regulations entitles the government servant
provisional pension 'equal to maximum pension' (Article 919A(1))
during the period until conclusion, thereby, taking care of the
likely hardship, and that what is postponed is commutation of
pension and gratuity.
71.We are fortified in taking the view from the observations
made in Nazrual Islam vs. Union of India and others
28
, wherein
28. 2018 (13) SCC 190
28
the Supreme Court while considering Rule 6(1) of the All India
Services (DeathcumRetirement Benefits) Rules, 1958
29
(extracted
in the earlier part of the judgment), a plea was raised by the
appellant therein that there is no finding of any misconduct and,
therefore, the proceedings cannot be continued under Rule 6(1).
The Court rejected the contention observing that the stage has not
arisen yet. It is for the disciplinary authority to consider all matters
being raised by the appellant while passing final orders. Relevant
portion of the paragraph 6 reads thus:
“6. Now that the Inquiry Report has been submitted, it is for
the Central Government to take a decision as per the procedure
prescribed under the Rules. Ultimately if the Appellant is
found guilty of a grave misconduct, then only the question
of impact on pension arises and that stage has not arisen
yet. These are all matters for the disciplinary authority to
consider while passing final orders.”
72.In Faini Singh and Ram Babu Sahu vs. State of U.P
30
(Ram
Babu case), the Division Bench on facts therein, held that mere
pendency of any judicial proceedings cannot be a ground to
exercise power under Article 351AA read with Article 919A for
withholding the retiral dues. The nature and the gravity of charge
has to be taken into consideration by the competent authority
before making an order or withholding the retiral dues. In other
words, it was held that the existence of the power by itself did not
justify the exercise of power. Enquiry can continue only if there are
charges of grave misconduct or of causing financial loss to the
government, i.e. in absence of allegation of seriousness of the
misconduct cannot become a ground of punishment of the
government servant. With due respect, we are not in agreement
with the view expressed in Faini Singh and Ram Babu to entitle
the authority to examine the nature of the allegations of
misconduct or the charge in criminal trial at the stage before
29. Rules, 1958
30. 2012 (2) ADJ 561
29
conclusion and outcome of the proceedings. Having regard to the
provisions of the Civil Service Regulations, in our view, Faini
Singh and Ram Babu do not lay down the correct proposition of
law, accordingly, in view of the discussion herein above we do not
approve it.
73.There may be instances where the departmental proceedings
against the government servant may have to be kept in abeyance
pending criminal case. In the given facts of a case where charges
and evidence in both the proceedings are same and based on same
evidence, if the disciplinary proceedings is continued and not kept
in abeyance it could adversely prejudice the government
servant/pensioner in the criminal case. It is always open to the
competent authority to continue the disciplinary proceedings after
decision of the criminal case including upon acquittal of the
pensioner. The order of the competent authority would follow the
outcome of the criminal case.
74.In Corporation of the City of Nagpur vs. Ramchandra
31
,
Supreme Court 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 Commissioner of Police vs.
Narender Singh
32
and Capt. M. Paul Anthony vs Bharat Gold Mines
Ltd. & Anr
33
.
75.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
31. (1981) 2 SCC 714
32. (2006) 4 SCC 265
33. 1999(3) SCC679
30
clean acquittal on merit after a fullfledged trial, where there is no
indication of the witnesses being won over. In R.P. Kapur vs.
Union of India
34
Supreme 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 leveled against the accused,
it can possibly be said that the accused was honourably
acquitted”.
76.The Regulations, as discussed in preceding paragraphs, do
not mandate the competent authority to examine the gravity of the
charge or the nature of the allegations during pendency of the
proceedings. The stage at which the decision is to be taken by the
competent authority is upon conclusion of the proceedings and not
at an earlier point of time. The stage to examine the nature/role of
the involvement of the government servant in the commission or
omission of the offence or whether allegations constitutes grave
misconduct or pending disciplinary proceedings is to be continued
after conclusion of criminal trail or not, would arrive later and not
during pendency of the judicial proceedings.
77.We accordingly hold that the stage for exercise of powers
having impact on pension under Articles 351, 351A of the Civil
Service Regulations arises upon conclusion of the proceedings and
the competent authority passing an appropriate order thereon.
Conclusion:
78.In view of the foregoing discussions, we arrive at the
following conclusions:
34. AIR 1964 SC 787
31
(i)Future good conduct is implied condition of ever grant of
pension. Full pension is not to be given as a matter of course,
or unless the service rendered has been thoroughly
satisfactory. (Article 351/351A)
(ii)Article 351 and/or 351A can be invoked by the State
Government or the Governor, as the case may be, if the
pensioner (a) be convicted of serious crime; (b) be guilty of
grave misconduct (c) caused pecuniary loss to the
government in service. The power can be exercised in
either of the eventualities. The action thereunder is punitive.
(iii)Pendency of disciplinary/judicial proceedings on the dateof
retirement, or instituted after retirement, provisional pension
equal to maximum pension as mandated under Article 919A
may be sanctioned to the government servant for the period
upto conclusion of the proceedings. (Article 351AA/Article
919A(1)/(2))
(iv)No gratuity is payable to the government servant during
pendency of disciplinary/judicial proceedings/enquiry by
Administrative Tribunal, until conclusion of the
proceedings/enquiry and orders being passed thereon by the
competent authority. [Article 919 A(3)]
(v)The Regulations mandates that government servant is
entitled to provisional pension equal to maximum pension
during pendency of the proceedings until conclusion. The
Regulations does not mandate the entitlement of full
pension/gratuity on the ground of 'hardship' being faced by
the pensioner pending proceedings.
(vi)The nature of the charge/allegations against the government
servant cannot be gone into during pendency of the
proceedings. The government servant whether guilty of
'serious crime' and/or 'grave misconduct' in the opinion of
32
the competent authority can be assessed/considered while
passing final orders upon conclusion of the
disciplinary/judicial proceedings.
(vii)On combined reading of Article 351, 351A, 351AA and 919
A, the impact on pension/gratuity would arise after the
competent authority has had the occasion to consider and
issue final orders upon conclusion of the proceedings. The
cause to the government servant arises thereafter and not at
the stage pending proceedings/enquiry.
79.The decisions rendered by the learned Single Judge and the
Division Bench of this Court taking a contrary view that is
inconsistent and in contradiction to the proposition of law stated
herein above shall stand overruled.
Answer to the question of law:
80.We accordingly proceed to answer the reference in the
following terms:
(i)Question No. 1 is answered in the negative. Government
servant is not entitled to full pension/deathcumretirement
gratuity on/or during pending judicial proceedings against
the government servant.
(ii)Question No. 2 is answered in the negative. Entitlement to
full pension/deathcumretirement gratuity to the
government servant is subject to the outcome of the
disciplinary/judicial proceedings and issue of final orders
thereon by the competent authority.
(iii)The broad principle of law, which has been formulated in Jai
Prakash lays down the correct law, the view expressed in
Faini Singh and other decisions referred to in the referring
order being in contradiction to the proposition of law held
by us, is not approved.
33
81.Reference to the Full Bench, shall accordingly stand
answered.
82.The writ petition shall now be placed before the regular
Bench according to the roster for disposal in light of the questions
so answered
83.Before parting, I would like to record my appreciation for Ms.
Shaivya Johri, attached Law Clerk, for the assistance rendered by
her in research work.
Pankaj Mithal,J.
1.These petitions have been referred for the opinion of the
Larger Bench. I have the advantage of reading the opinion
expressed by one of my brother Judges. I am in complete
agreement with the concluding opinion expressed by him but
would prefer to write briefly the same opinion in my own words.
2.In the above six writ petitions one of the controversies raised
is with regard to entitlement of the petitioners to receive gratuity
on retirement pending criminal cases.
3.The learned Single Judge vide order dated 26
th
February
2016 in view of the conflicting Division Benches in Jai Praksh
35
on the one hand and of Faini Singh
36
and some other decisions on
the other hand referred the matter to the larger Bench.
4.Upon reading the reference order and hearing the parties, I
am of the opinion that the following two points arise for
consideration:
(i)Whether the gratuity admissible to a civil servant on
retirement can be withheld simply for the reason that some
judicial proceedings viz., a criminal case is pending against
35. 2014 (1) ADJ 207 State of U.P., and others Vs. Jai Prakash.
36. State of U.P., and others Vs. Faini Singh Special Appeal Defective No. 416 of 2014 decided on
25.4.2014.
34
him; and
(ii)Whether the view expressed in the case of Jai Prakash
lays down the correct law or that expressed by the other
decisions cited on behalf of the petitioners is correct.
5.The pension and death cum retirement gratuity are both
admissible to a government servant on his retirement as of right
and not as a bounty. Therefore, neither the pension nor the death
cum retirement gratuity of a retired employee can be curtailed,
denied or withheld unless it is provided by the Statutes and that
too only in the manner prescribed.
6.The Civil Service Regulations (hereinafter 'Regulations' only)
in its application to the State of U.P., which have been framed in
exercise of powers under Article 309 of the Constitution of India
governs the payment of pension to the government employees.
7.Generally speaking pension and gratuity are distinct except
that both are reitral benefits. They are distinct as gratuity is a
consolidated amount payable on retirement whereas pension is a
recurring periodical payment after retirement for the rest of the
life.
8.Article 366 (17) of the Constitution of India defines 'pension'
to include inter alia gratuity.
9.Regulation 41 defines 'pension' to include gratuity except
when it is used in contradistinction to gratuity. Thus ordinarily
gratuity is a component of the pension but where the term pension
and gratuity are used in contradiction to each other, they are
separate.
10.Regulations 351 & 351A provides for the power of the State
Government/Governor to withdraw pension or any part thereof
either temporarily or for specific period. They are as under:
“351. Future good conduct is an implied condition of ever
35
grant of 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.”
“351A. 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 to the Government, if
the pensioner is found in departmental or judicial
proceedings to 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 reemployment after retirement.”
11.Regulation 351 as amended vide notification dated
27.10.1976 envisages future good conduct as an implied condition
for grant of pension and authorizes the State Government to
reserve to itself the right of withholding or withdrawing the
pension or any part of it, if the pensioner be convicted of serious
crime or be found guilty of grave misconduct. In other words, the
State Government has a right to withhold or withdraw pension or
any part of it of a retired government servant on his conviction in a
serious crime or being held guilty of grave misconduct.
12.Regulation 351A which was substituted vide notification
dated 6.1.1961 empowers the Governor to reserve to himself the
right of withholding or withdrawing a pension or any part of it
whether permanently or for a specified period and to order
recovery from the pension whole or part of any pecuniary loss
caused to the Government, if the pensioner is found in
departmental or judicial proceedings to have been guilty of grave
misconduct or to have caused pecuniary loss to the Government by
36
misconduct or negligence during his service rendered on re
employment after retirement. It simply authorises the Governor to
withhold or withdraw pension or any part of it if the pensioner is
found guilty of grave misconduct in departmental or judicial
proceedings subject to certain other conditions enumerated in the
later part of the above regulation which are not relevant for the
purposes of this case.
13.A conjoint reading of both the above provisions reveal that
the State Government and the Governor have the right to withhold
or withdraw pension, if the pensioner is convicted of a serious
crime or is held guilty of grave misconduct in departmental or
judicial proceedings.
14.The aforesaid provisions make it as clear as crystal that
conviction and holding the pensioner guilty of misconduct are
essential for withholding or withdrawing the pension or any part of
it either by the State Government or by the Governor. Thus mere
pendency of departmental or judicial proceeding are not at all
sufficient for exercising any power under Regulation 351 or 351A
to withhold or withdraw pension or any part of it.
15.Now comes Regulation 351AA which was inserted vide
notification dated 19
th
July 1983 w.e.f. 28
th
October 1980. The said
regulation reads as under:
“351AA.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 Article 919
A may be sanctioned.”
16.The aforesaid regulation contemplates for the payment of
provisional pension as provided under Regulation 919A if at the
37
time of his attaining the age of superannuation a departmental or
judicial proceeding or enquiry by the Administrative Tribunal is
pending or is to be instituted against the pensioner after his
retirement.
17.The aforesaid regulation does not speak about the conviction
or holding a retired employee guilty of misconduct for the
purposes of provisional pension rather for payment of provisional
pension to him, if at the time of his attaining the age of
superannuation any departmental, judicial proceedings or any
enquiry by the Administrative Tribunal is pending against him or
is to be instituted.
18.A combined reading of all the aforesaid three provisions ie.
Regulation 351, 351A and 351AA would make it clear that the
earlier two provisions for withholding or withdrawing pension
comes into play where the Government Servant is convicted in a
crime or is found guilty of misconduct and not on mere pendency
of any departmental or judicial proceedings or any enquiry
whereas the last provision for payment of provisional pension
applies where any departmental or judicial proceedings or any
enquiry by the Administrative Tribunal is pending or is
contemplated.
19.In short, pension of a government servant can be withheld or
withdrawn, if he is convicted in a crime or is found guilty of
misconduct, but if he is neither convicted nor found guilty of
misconduct but a departmental or judicial proceedings or any
enquiry by the Administrative Tribunal is pending against him at
the time of his retirement or is likely to be instituted, he would be
entitled to provisional pension in accordance with Regulation 919
A. Thus, pending a departmental or judicial proceedings or any
enquiry pension can not be withdrawn, withheld or stopped.
20.This being the position with regard to pension we move
38
forward to the death cum retirement gratuity with which alone we
are concerned in this case.
21.Gratuity is ordinarily included in pension as one of its
component but is otherwise separate from it. There exists separate
statutory provisions for payment of pension and gratuity in cases
where a government servant has been convicted of a crime or has
been found guilty of misconduct and in cases where a
departmental enquiry or judicial proceedings or any enquiry by
the Administrative Tribunal is pending against him. Therefore,
payment of pension and gratuity has to be dealt with
independently and separately according to the specific provisions
governing each of them.
22.In this context, Regulation 919A (3) is very relevant and
material. The aforesaid Regulation has been inserted by the U.P.,
Civil Service (X Amendment), 1983 notified on 19
th
January 1983
w.e.f. 28.10.1980.
23.The aforesaid Regulation reads as under:
“919A. (1). In cases referred to in Article 351,
the Head of Department shall 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,
up to the date immediately preceeding 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 the
conclusion of departmental or judicial proceeding or the
enquiry by the Administrative tribunal, as the case may
be, final order are passed by the competent authority.
(3) No deathcumretirement gratuity shall
be paid to the Government servant until the
conclusion of the departmental or judicial
proceedings or the enquiry by the Administrative
39
tribunal and issue of final order 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 in unity
referred to in clause (3) but no recovery shall be made
where the pension finally sanctioned is less than the
provisional pension or the pension is reduced or with
held either permanently or for a specified period.”
24.Subclause 3 of Regulation 919A in very clear and
unequivocal terms lays down that 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 the final order
thereon.
25.The use of the words “judicial proceedings” clearly envisages
where such proceedings which includes both civil and criminal or
of any nature are pending against the government employee who
is retiring/retired, death cum retiral gratuity shall not be paid to
him till the conclusion of the said proceedings.
26.In view of the above provision it is as certain as death that
gratuity is not payable to the government employee, if judicial
proceedings of either nature, civil or criminal are pending against
him. This has also been held by the Division bench of this Court in
Shri Pal Vaish
37
wherein it has been clearly observed that gratuity
is not payable during pendency of the criminal case.
27.The relevant finding to this regard contained in the above
decision is quoted below:
“ So far as the present case is concerned it is clear
that under the provisions of regulation 919A the
petitioner is not entitled to payment of gratuity during
the pendency of the criminal case.”
28.Another Division Bench of this Court headed by Dr. D.Y.
372009 (9) ADJ 45 (DB) Shri Pal Vaish Vs. U.P. Power corporation Limited and another.
40
Chandrachood, CJ. (as he then was) in Jai Prakash elaborately
dealt with the above problem and on consideration of Article 351
A, 351AA and 919A (3) held that there is an express prohibition
on the payment of death cum retirement gratuity to a government
servant until the conclusion of the departmental or judicial
proceedings or an enquiry by the Administrative Tribunal.
29.The Division Bench in laying down the above principle
distinguished the Supreme Court decision in the case of Jitendra
Kumar Srivastava
38
by observing that it was a case from
Jharkhand where the provisions of Rule 43 (b) of the pension
Rules of Jharkhand were under consideration which were para
materia to Rule 351A of the Civil Service Regulations as applicable
to the State of U.P., and the said decision is limited to the pension
Rules of Jharkhand which had no provision similar to that as
Regulation 919A (3) of the Civil Service Regulations as applicable
in U.P. Therefore, in view of the regulation 919A (3) no death
cum retirement gratuity would be admissible to a government
servant until the conclusion of the departmental or judicial
proceedings or any enquiry by the Administrative Tribunal which
includes the pendency of a criminal case.
30.In Faini Singh the Division Bench taking note of Jai
Prakash opined that Regulation 919A(3) contains an express
prohibition on the payment of death cum retirement gratuity to a
government servant until the conclusion of the departmental or
judicial proceedings or an enquiry by the Administrative Tribunal,
as the case may be. It further observed that the aforesaid
Regulation which contains bar on the payment of gratuity till the
conclusion of the departmental or judicial proceedings or an
enquiry by the Administrative Tribunal at the same time allows the
payment of provisional pension to the government servant.
Subsequently, on the facts and circumstances of the case weighing
38JT 2013 (1) SC 351 State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another.
41
the equities between the parties the Court held that continuance of
embargo on the payment of gratuity and denial of pension
amounts to injustice to the petitioner and thus held that with
holding of gratuity and denial of pension is not justified merely for
the pendency of the judicial proceedings.
31.The decision of the above Division Bench as contained in the
later part is based upon equitable principle and is not the law that
has been laid down. The decision on equity is confined to the fact
situation of that case. Moreover, equity has no place where the
provisions of law are express.
32.The decision in the case of Bal Krishna Tiwari
39
has been
rendered simply following the equitable principle of Faini Singh
(Supra) in context with the fact situation of the said case wherein
the government servant had retired 10 yeas ago but was not
getting his gratuity as a case was pending against him. The said
decision also does not lay down any binding precedent.
33.The decision given in Bangali Babu Misra
40
is of no avail to
the petitioners for the simple reason that it has been rendered
without considering the provisions of Regulation 919A in issuing
direction for payment of gratuity, pension and other dues only for
the reason that there is no Statutory rule or law providing with
holding the retiral dues during the pendency of the criminal case.
34.Similar is the position with the decision of the Division Bench
in Narendra Singh
41
. The said decision does not refer to any of the
above Regulations much less Regulation 919A. It appears that the
aforesaid provisions were not brought to the notice of the Court
which resulted in the issuance of direction for payment of retiral
dues including gratuity despite pendency of a criminal case against
the concerned government servant.
39State of U.P., and others Vs. Bal Krishna Tiwari Special Appeal Defective No. 440 of 2014 decided
on 8.5.2014.
402003 (3) AWC 1760 (Lucknow Bench) Bangali Babu Misra Vs. State of U.P.
41Narendra Singh Vs. State of U.P., Writ Petition No. 12574 of 2013 dated 5.10.2013.
42
35.In the case of Dr. Chandra Prakash
42
the Court held that as
there is no good reason for withholding the retiral benefits of the
government servant merely for the pendency of criminal cases, he
is entitle for the release of his pensionery benefits. In the said case
also the matter of gratuity was not independently dealt with in the
light of Regulation 919A and as such is perincurium.
36.The decision dated 5.10.2013 in Writ No. 12574 of 2013
(Narendra Singh Vs. State of U.P., and others) is also of no
consequence as it again fails to take into consideration the specific
provision of Regulation 919A with regard to withholding of
gratuity during the pendency of the judicial proceedings.
37.The last decision which is said to be conflicting is dated
10.9.2007 passed in Writ Petition No. 52482 of 2003 Bhagwati
Prasad Verma Vs. State of U.P., and others. This decision also is not
specifically in reference to the gratuity. It does not deal with
Regulation 919A and as such can not be said to be in conflict.
38.In view of the aforesaid facts and circumstances, the two
questions which had come up for our opinion are answered as
under:
(i)A government employee is not entitled to death cum
retiral gratuity unless the conclusion of the departmental
proceedings or the enquiry by the Administrative Tribunal or
judicial proceedings which includes both civil and criminal.
(ii) The law as laid down in Jai Prakash (Supra) is the
correct law whereas all other decisions said to be in conflict
with it are actually not in conflict rather do not address to
the legal position with which we are concerned in these writ
petitions but with pension alone or if with gratuity on the
basis of the equity and that too without reference to
regulation 919A and as such would not apply in the matter
422013 (2) UPLBEC 1185 Dr. Chandra Prakash Vs. State of U.P., and others.
43
of payment of gratuity to the government employee.
39.Let files be sent to the appropriate Court for decision of the
writ petitions on their own merits.
Order date: 08.05.2019
S.Prakash/SKS
(Pankaj Mithal,J.)
(Suneet Kumar,J.)
(Rohit Ranjan Agarwal,J.)
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