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2013 Supreme(All) 3053
ALLAHABAD HIGH COURT
Anil Kumar, J.
Bhagwat Prasad Yadav - Appellant
Versus
State of U.P. and Others - Respondent
Writ Petition No. - 3150 of 2011
Decided On : 14-03-2013
For the Petitioner:- Sharad Pathak,Alok Kirti Mishra
For the Respondent Counsel:- C.S.C
The rejection of a retired employee's representation for post retiral dues cannot be based solely on the pendency of a criminal case against the employee. The circumstances under which gratuity can be forfeited are limited and must be in accordance with the provisions of the Payment of Gratuity Act.
Headnote:
Payment of Gratuity Act, 1972 - Section 4(6) - The court analyzed Section 4(6) of the Payment of Gratuity Act to determine the circumstances under which gratuity can be forfeited. The court held that the circumstances enumerated in the section did not apply to the petitioner's case, and therefore, the order stopping the gratuity was not in accordance with the law.
Fact of the Case:
The petitioner, a retired police constable, challenged the rejection of his representation for payment of post retiral dues due to a pending criminal case against him. The petitioner argued that the rejection was contrary to a previous court ruling. The state counsel argued that the rejection was in accordance with a government order. The court referred to a previous court ruling and analyzed the relevant government orders and provisions of the Payment of Gratuity Act. The court held that the rejection of the petitioner's representation was not in accordance with the law and set aside the impugned orders. The petitioner was declared entitled to the post retiral dues.
Finding of the Court:
The court analyzed the relevant government orders and provisions of the Payment of Gratuity Act to determine the legality of the rejection of the petitioner's representation for post retiral dues.
Ratio Decidendi: The rejection of the petitioner's representation for post retiral dues was not in accordance with the law.
Result: The impugned orders rejecting the petitioner's representation for post retiral dues were set aside and the petitioner was declared entitled to the post retiral dues.
Anil Kumar,J.
Heard Sri Alok Kirti Mishra, learned counsel for petitioner, learned State counsel and perused the record.
2. By means of the present writ petition, the petitioner has challenged the impugned order dated 15.03.2011 and 21.02.2011 passed by Superintendent of Police, Sultanpur.
3. Facts in brief of the present case are that the petitioner was initially appointed on the post of constable in Civil Police on 26.10.1965, posted at district Sultanpur. Subsequently, in the said capacity, he has been posted at different places in the State. On 26.05.2007, FIR was lodged that from the custody of the petitioner an accused has escaped away and in the said matter, he was placed under suspension, revoked by order dated 06.07.2011, pending disciplinary inquiry.
4. On 08.07.2007, the petitioner was promoted to the post of Head Constable, and on 26.07.2006, a charge sheet has been served on the petitioner to which he submitted reply on 07.07.2007, thereafter an inquiry was conducted and on the basis of enquiry report the punishment order dated 28.11.2007 has been passed by Superintendent of Police, Sultanpur. Aggrieved by the same, the petitioner preferred an appeal before the appellate authority/Dy. Inspector General of Police, Faizabad.
5. In the meantime, on 30.11.2007 the petitioner has retired from services after attaining the age of superannuation. By an order dated 06.05.2008 the appeal filed by the petitioner was allowed by the appellate authority/Dy. Inspector General of Police, Faizabad and punishment order dated 28.11.2007 has been set aside.
6. In view of the said development, the petitioner has made a representation for payment of his post retiral dues, however, by means of the impugned order dated 15.03.2011 (Annexure No. 1) passed by Superintendent of Police, Sultanpur, the petitioner's representation has been rejected on the ground that he is not entitled for pension/gratuity and other post retiral dues as criminal case is pending against the petitioner before the competent court of law (Crime Case No. 902/07 under Section 223/224 IPC) and consequential order dated 21.02.2011 has been passed.
7. Learned counsel for petitioner submits that the impugned orders passed by O.P. No. 3/Superintendent of Police, Sultanpur are illegal and arbitrary in nature and the facts as stated in the impugned order dated 15.03.2011 on the basis of which the post retiral dues of the petitioner has been withheld is contrary to law as laid down by this Court in the case of Harnam Singh Yadava Vs. State of U.P. and others, 2012 (30) LCD 662 , so liable to be set aside.
8. In rebuttal, learned State counsel while defending the impugned orders submits that as per the Government Order No. - Sa-3-1713/Dus-87-933-89 dated 28.07.1989, it is provided that during the pendency of criminal case only provision pension shall be paid which is paid to him and after the decision in the criminal matter, he is entitled for other post retiral dues, so present writ petition is liable to be dismissed.
9. I have heard learned counsel for parties and gone through the record.
10. In the case of Harnam Singh Yadava Vs. State of U.P. and others, 2012 (30) LCD 662 , this Court in paragraph Nos. 4 to 9 held as under: -
"Para No. 4 -The submission of the learned counsel for petitioner is that the aforementioned G.O. has been misread by the authorities concerned. The aforesaid G.O. relates only to the departmental judicial proceeding, or vigilance proceeding or service tribunal proceeding and it does not cover the criminal proceedings, which are not connected with the department.
Para No. 5 - It is further argued on behalf of the petitioner that mere pendency of criminal proceeding,cannot be a ground to withheld the retiremental dues because if in the trial, the case is proved against the petitioner then he shall be punished in accordance with law. He cannot be punished by withholding his retiremental dues.
Para No. 6 - Learned counsel for opposite party laid emphasis upo
