Point of Law : Article 351-AA/919-A came to be incorporated later (1980), the rule making authority was fully aware of the existing provisions, in particular, Article 351/351-A, but the rule making authority, in view of the plain and unambiguous language used therein (Article 351-A), while incorporating Article 351-AA/919-A, did not consider it appropriate to mandate the release of full pension/gratuity to the government servant until conclusion of the proceedings.

JUDGMENT :

Saral Srivastava, J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondent nos. 1 to 5.

2. The petitioner, through the present writ petition, has assailed the order dated 17.11.2020, passed by respondent no.2-Superintendent of Police, Baghpat, by which he has refused to grant final pension and full gratuity to the petitioner on the ground of pendency of criminal case against him.

3. Brief facts of the case are that the petitioner was appointed as Constable (Civil Police), Uttar Pradesh on 13.08.1980 and retired on 31.12.2020.

4. It appears that during service on 07.12.2010, an FIR under Section 324/506 I.P.C. was registered against the petitioner on the complaint of his brother, namely, Ratan Kumar Sharma with an allegation that the petitioner and his family members along with some other anti-social elements came to his house and had beaten him and his family members. In the said incident, the daughter of the complainant had suffered injuries.

5. According to the petitioner, the charge sheet in the said criminal case was submitted by the police on 02.02.2011 under Sections 324/506 I.P.C. against him and his wife, and due to the pendency of the said criminal case, his final pension and full gratuity have not been disbursed, rather he had been sanctioned the provisional pension and 90% of the gratuity.

6. In the counter affidavit filed by the respondents, in paragraph no.5, it is stated that the petitioner had been awarded adverse entry by the punishment order No.Da-8/2001, dated 15.05.2001 of Senior Superintendent of Police, District Dehradun, and order No.Na-242/2010 dated 31.01.2011 of Deputy Inspector General of Police, District Meerut. Besides the above, a criminal case being Case Crime No.1787 of 2010, under Sections 324/506 I.P.C., P.S. Sihanigate, District Ghaziabad is also registered against the petitioner, which is pending before the Court of Chief Judicial Magistrate-III, Ghaziabad.

7. In paragraph no.11 of the counter affidavit, It is stated that Government Order No.Sa-3-1713/Das-87-933/89, dated 28.07.1980 provides that during the pendency of criminal proceedings or any judicial proceedings, only provisional pension is paid and payment of gratuity is withheld.

8. Challenging the aforesaid order, learned counsel for the petitioner submitted that the order impugned withholding 10/% gratuity and not granting full pension to the petitioner on the ground of pendency of criminal case is not sustainable for the reason that the gratuity, as well as full pension, can be withheld only when an employee is guilty of grave misconduct or convicted of 'serious offence'.

9. He submits that the authority has to apply its mind and record a prima facie satisfaction that the criminal charge leveled against the petitioner will fall within the ambit of 'serious crime', and once that be so, only then the authority can withhold the payment of gratuity and full pension. Accordingly, he submits that the impugned order does not reflect any application of mind by the authority or any finding of the authority recording prima facie satisfaction that the charges leveled against the petitioner fall within the ambit of 'serious crime'. Thus, he submits that it is a fit case where the authority should be directed to release the full gratuity and re-fix the final pension along with interest.

10. Per-contra, learned Standing Counsel would contend that the authorities are well within their domain to withhold the gratuity and refuse to grant full pension because of Article 351A of Civil Service Regulation. He submits that admittedly, a criminal case under Sections 324/506 I.P.C. is pending against the petitioner in which charge sheet had been submitted on 02.02.2011, therefore, the authorities have rightly withheld 10% gratuity and granted provisional pension instead of full pension.

11. I have heard learned counsel for the parties and perused the record.

12. Before dealing with the contentions advanced by both the co