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ALLAHABAD HIGH COURT
V.M.Sahai, Shishir Kumar
BHAGWATI PRASAD VERMA
Versus
STATE OF U P
Decided On : 10 September 2007
C. M. W. P. No. 52482 of 2003
Gratuity - Government Servant - Regulation 351-A of the Civil Service Regulations, Uttar Pradesh Retirement Benefit Rules, 1961, and Uttar Pradesh Liberalised Pension Rules, 1961 - The judgment discusses the legality of stopping payment of gratuity, the order curtailing pension, and the violation of principles of natural justice in the disciplinary proceedings. It concludes that gratuity cannot be stopped or recovered treating it as part of pension under Regulation 351-A. The judgment also highlights the distinction between pension and gratuity, emphasizing that gratuity is not part of pension. It further discusses the violation of principles of natural justice in the enquiry proceedings and the impracticality of directing a fresh enquiry due to the delay and the age of the petitioner.
Fact of the Case:
The petitioner, a retired Government servant, challenged the order dated 3-5-2002, which directed the stopping of his gratuity and permanent curtailment of 5% of his pension. The petitioner was selected and appointed as a teacher in 1964 and retired in 1996. After his retirement, disciplinary proceedings were initiated against him under Regulation 351-A of the Civil Service Regulations. The petitioner was charged with various irregularities related to the purchase of departmental items during his service. The State Government found the petitioner guilty and directed the stopping of his gratuity and deduction of 5% of his pension. The petitioner challenged the order through a Writ Petition.
Finding of the Court:
The court found that the order withholding gratuity and curtailing pension permanently was contrary to the rules. It also held that the enquiry proceedings were in violation of U. P. Government Servant (Discipline and Appeal) Rules, 1999, and contrary to the principles of natural justice. The court further concluded that due to the delay in proceedings and the age of the petitioner, it would not be expedient to direct a fresh enquiry.
Issues: The issues involved in the case were whether gratuity can be withheld or forfeited under Regulation 351-A of the Civil Service Regulations, whether payment of gratuity can be stopped under the Uttar Pradesh Retirement Benefit Rules, 1961 and the Uttar Pradesh Liberalised Pension Rules, 1961 without initiating proceedings under the aforesaid rules, and whether the enquiry suffered from non-compliance of principles of natural justice.
Ratio Decidendi: The court held that gratuity cannot be stopped or recovered treating it as part of pension under Regulation 351-A. It also emphasized the distinction between pension and gratuity, stating that gratuity is not part of pension. Furthermore, the court concluded that the enquiry proceedings were in violation of U. P. Government Servant (Discipline and Appeal) Rules, 1999, and contrary to the principles of natural justice. Due to the delay in proceedings and the age of the petitioner, the court found it impractical to direct a fresh enquiry.
Final Decision: The Writ Petition was allowed, and the order of the State Government dated 3-5-2002, directing the stopping of the petitioner's gratuity and permanent curtailment of 5% of his pension, was quashed. The court issued a writ of mandamus directing the respondents to release the gratuity and pension along with the total amount of pension already deducted within a period of three months. In case the amount was not paid within the specified time, the petitioner would be entitled to interest at the rate of 9% per annum from the due date.
The questions that arise for consideration in this petition filed by a retired Government servant are whether Gratuity can be withheld or forfeited under Regulation 351-A of the Civil Service Regulations; whether payment of Gratuity can be stopped under the Uttar Pradesh Retirement Benefit Rules, 1961 and the Uttar Pradesh Liberalised Pension Rules, 1961, without initiating proceedings under the aforesaid rules; whether the enquiry suffered for non-compliance of principles of natural justice and whether permanent curtailment of 5% pension under Regulation 351-A of the Civil Service Regulations was arbitrary and contrary to law?
2. The petitioner was selected and appointed in 1964 by the Public Service Commission, U. P. as a teacher in Government Inter College. He was promoted as lecturer in 1974. In 1991 he was promoted to the post of Vice Principal. In 1994 he was promoted on the post of District Non Formal Education Officer and was posted at Allahabad. He retired from service on 31st July, 1996. After about two years of superannuation the Governor on 22-6-1998 granted sanction for institution of disciplinary proceedings under Regulation 351-A of the Civil Service Regulations (in brief the Regulations ). Shri Shyam Narain Rai, Director of Education III, Allahabad was appointed as enquiry officer. The enquiry officer sent a charge- sheet dated 22-6-1998 on four counts. It was served on the petitioner on 14-7-1998. The petitioner submitted his reply on 28-7-1998. The enquiry officer submitted the report dated 31-8-1998 on 12-10- 1998. A copy of the enquiry report, as directed by the State Government, was sent on 4-5-2001 to the petitioner by Joint Director of Education, Allahabad Region. He by another letter dated 23-8-2001 asked the petitioner to submit his representation to the enquiry report. The petitioner made a representation on 4-9-2001. The enquiry officer exonerated the petitioner of the first charge. He found him guilty of second and third charge and the fourth charge was found to be technically proved. The State Government acting on the report of enquiry officer found the petitioner guilty of the charges and directed under Regulation 351-A of the Civil Service Regulations that the payment of gratuity to the petitioner should be stopped and an amount of 25% of the pension payable to the petitioner be deducted and referred the matter to the Commission for its opinion. The Commission agreeing with the view of the State Government that gratuity payable to the petitioner should be stopped, recommended that instead of 25% only 5% of the pension amount be deducted. Thereafter the State Government passed the impugned order dated 3-5-2002, directing that petitioners gratuity be stopped and 5% deduction be made from his pension permanently. However, the other post retiral benefits were released to the petitioner. The petitioner has challenged the order dated 3-5-2002 by means of this Writ Petition.
3. In the counter-affidavit filed by the Joint Director of Education (Basic), U. P. it has been stated that while the petitioner was posted as District Non Formal Education Officer at Allahabad, certain irregularities were found in purchase of some departmental items, therefore, after his retirement Regulation 351-A was invoked.
4. In the counter-affidavit to the amendment application filed by the Deputy Director of Education, Services-II it has been stated that permission under Regulation 351-A was granted by the Governor on 22-6-1998 and thereafter charge-sheet was served. In both the counter-affidavits it has been stated that ample opportunity of hearing was given to the petitioner during the enquiry. The enquiry proceedings were concluded, according to the respondents, in accordance with the principles of natural justice.
5. In the supplementary counter-affidavit sworn on 21-5-2007 and filed on 25-5-2007 in pursuance to the direction of this Court, it is admitted that no date of enquiry was fixed. Neither the peti
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