ASHWANI KUMAR MISHRA,J. - (1.) Petitioner superannuated on 31.12.2011 from the post of Assistant Sub Inspector (Ministerial) in U.P. Police and is aggrieved by an order dated 28.1.2012, whereby, the amount payable to him towards gratuity has been withheld. This order records that the gratuity is not payable to petitioner. In the counter affidavit filed it is disclosed by the State authorities that a criminal Case No. 1838 of 2007 under Section 409 I.P.C. is pending investigation wherein petitioner is alleged to have embezzled a sum of Rs. 21,596/- and, therefore, the gratuity is rightly withheld. A subsequent counter affidavit is filed wherein it is disclosed that a charge-sheet has been filed against the petitioner on 20.4.2013. The first information report was lodged on 19.9.2007. Criminal trial is, however, pending. According to the respondents, withholding of gratuity in the above noted facts, is as per law. The short question that requires consideration in the present case is as to whether the amount of gratuity payable to retired employee of State could be withheld merely on account of pendency of criminal investigation against him at the time of retirement. The connected issue is whether the charge-sheet filed against the petitioner, subsequently, would justify withholding of gratuity even if the charge relates to a period which dates back to more than 4 years from the date of superannuation?.
(2.) Payment of gratuity to a government employee is regulated by the provisions of Civil Service Regulations and the U.P. Retirement Benefit Rules,1961. The provisions in that regard have been noticed recently by a Full Bench of this Court in Special Appeal No. 40 of 2017 (Shivagopal Vs. State of U.P. and 4 others). Para Nos. 15 to 22 and 28 of the Full Bench judgment are relevant for the purposes of deciding the present case and are reproduced:- "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 otherwise from the service of the government. 16. Chapter XVIII of Civil Service Regulations provides for 'Conditions of Grant of Pension'; Section-I 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 23-A12 defines Death-cum-Retirement Gratuity. "23-A. "Death-cum-retirement gratuity" means death-cum-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 others13. 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 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 351-A. 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 re-employment 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 sub-rule. 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 the doubt created by the decisions relied on by counsel for the appellant which are considered hereafter......" "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, 351-A of the Civil Service Regulations."
(3.) The Full Bench in Shivagopal also considered the import of Article 351/ 351-A of the Civil Service Regulation. Para Nos. 40 to 43 of the judgment takes note of relevant provisions and are reproduced hereinafter:- "40. Article 351-A 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 351-A reads thus: "351-A21. 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 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 re-employment 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 re-employment, shall have been instituted in accordance with sub-clause (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]. Explanation-For 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 charge-sheet is submitted, to a 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 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 351-A 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 charge-sheet 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 351-A. 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 proceedings/judicial proceedings and the limitation within which such initiation of the proceedings can be done has been made explicit." ;