The Allahabad High Court on Tuesday observed that withholding the amount of gratuity payable to a retired employee of State merely on account of pendency of criminal investigation against him at the time of retirement violates Article 300A of the Constitution.
"The right of a retired employee to receive pension and gratuity is recognised as a property which cannot be deprived except by having recourse to law in view of Article 300-A of the Constitution of India.
The power of State to withhold pension and gratuity, therefore, must be exercised strictly as per the applicable law and if the State action is not found to be in consonance with it, the withholding of gratuity would violate Article 300-A of the Constitution of India. The denial of such constitutional right, therefore, would be liable to be interfered with by this Court under Article 226 of the Constitution of India," Justice Ashwani Kumar Mishra held.
The court clarified that the State has a right to withhold or withdraw a part of pension, whether permanently or for a specified period, only if the pensioner is found guilty of grave misconduct in departmental or judicial proceedings or is found to have caused pecuniary loss to the Government by misconduct or negligence during service, including service rendered on re-employment after retirement. Reliance was placed on a Full bench ruling of the high court in Shivagopal v. State of UP & Ors., Spcial Appeal No. 40/2017.
The observations have been made in a petition filed by the Petitioner-pensioner against the State for withholding his pension on the ground that a criminal case for embezzlement filed against him was pending investigation.
The court observed that the allegations dated almost four years prior to the date of Petitioner's retirement however, the charge sheet was filed four months after the Petitioner retired.
In these facts, the court held that since the charge sheet was filed after retirement, the judicial proceedings would be deemed to have been instituted on that day, as stipulated under the explanation appended to Article 351-A of the Civil Service Regulation.
As a corollary, the State ought to have proceeded in accordance with sub clause (ii) of Clause (a) and (c) of Article 351-A. Further, it should have consulted with the Public Service Commission of the state in that behalf.
Noting these procedural irregularities, alongside violation of Article 300A of the Constitution, the high court set aside the order of withholding of gratuity.
"The period of 4 years is a reasonable period from the date of the event, leading to submission of charge-sheet and the employee cannot be made to suffer for any un-explained or undue delay on the part of the State or the investigating agency," the court remarked.
Case Details:Case Title: Udai Naraian Ojha v. State of UP & Ors.Case No.: Writ A No. 27391/2012Quorum: Justice Ashwani Kumar MishraAppearance: Advocates Ashok Kumar Tiwari and GD Misra (for Petitioner)
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