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Judgment
ORDER
Shri R.S. Gupta, learned counsel appearing for the applicant and Shri Chakrapani Vatsyayan, learned counsel appearing for the respondents, are present and heard.
Present Original Application has been filed seeking the following relief:-
“(i)direct the respondent nos. 2 and 3 to release the gratuity amount of applicant and also award interest thereupon till the actual payment as per direction of Hon’ble Apex Court.
(ii)any other order or direction which this Hon’ble Tribunal may deem fit and proper under the facts and circumstances of the case.
(iii)Award the costs of the application to the applicant.”
Brief facts of the case are that the applicant retired from the post of Fitter Electronics (MCM) from the respondent department on attaining the age of superannuation on 31.07.2015. Thereafter, vide impugned order dated 18.08.2015, issued by respondent no.3, the respondent has not released the gratuity amount payable to the applicant. Hence, the present O.A.
Submission of learned counsel for the applicant is that the applicant had worked under the respondent department and retired on attaining the age of superannuation. One civil suit was filed by Ishwar Chandra Sharma against the applicant and some other person before the Civil Court. One suit was filed before the Civil Court against the son of the applicant. It is argued that the applicant was not arrayed in that suit as respondent. Thus, the suit is not related to the applicant. It is further argued that one criminal complaint was also filed before the competent Court arraying the applicant as accused no.4 but the competent Magistrate did not summon him in that complaint. It is also argued that one FIR had been lodged at police station Kakadev, District Kanpur Nagar and the applicant was arrayed as accused in that FIR. Referring to the fact of the FIR, it was also argued that a civil dispute was coloured as criminal dispute and due to this reason FIR was lodged. The police after investigation submitted a charge sheet against the applicant also. It is next argued that the applicant approached before the Hon’ble High Court invoking the jurisdiction of section 482 of CrPC and the Hon’ble Allahabad High Court vide order dated 29.05.2020 passed in application under section 482 of CrPC No.20430 of 2014 stayed the proceedings of the criminal case. It is also argued that the allegation levelled in the charge sheet against the applicant has no bearing or connection with the official duties. Thus, withholding the gratuity amount of the applicant is illegal. To substantiate his argument, learned counsel for the applicant referred to the facts disclosed in the O.A. as well as the document annexed with the O.A. and the rejoinder affidavit and has also placed reliance on O.A./78/2018 (Bhagwan Das vs UOI & ors) Decided by this Bench 15.04.2023 and further argued that O.A. be allowed and the respondents by directed to release the gratuity amount.
Learned counsel for the respondents argued that since the criminal proceeding was pending against the applicant, the gratuity amount was withheld. Referring to the relevant provision of the CCS (Pension) Rules, learned counsel for the respondents further argued that until and unless the judicial proceeding pending against the applicant which includes criminal case also, is not decided finally, the respondent is competent enough to withhold the gratuity amount. Thus, it was argued that there is no illegality or infirmity in the impugned order.
I have considered the rival submissions of learned counsel for the parties and pursued the entire documents on record.
Before discussing the submission raised across the bar, it will be useful to quote paragraph no.13 to 16 of O.A./78/2018 decided on 15.04.2023 which is as under:-
13.The applicant has quoted some case laws in their favour, i.e. Writ Petition No. 27391 of 2012 – Udai Narain Ojha vs. State of UP thorough its Secretary and others where he states that the Hon‟ble High Court rules that gratuity cannot be withheld for an indefinite period and only if he delays the criminal trial (delays specifically attributable to the applicant) it can be withheld. He further draws my attention towards para 9 and 10 of the judgment, which reads following:-
“9.Even otherwise, 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. It is, otherwise, not shown by the respondents that such delay was attributed to any act or omission on part of the petitioner. The right of State to proceed in accordance with law, is otherwise available by virtue of Article 351 of Civil Services Regulations if the charges are found proved in judicial proceedings and the public interest also would not be adversely affected, if the gratuity due is paid to the government servant. In view of the above discussions, this Court has no hesitation in holding that action of respondents in withholding payment of gratuity to petitioner is wholly illegal, arbitrary and cannot be sustained. 10. Writ petition succeeds and is allowed. The order dated 28.1.2012 passed by the respondent no. 3, so far as it relates withholding of gratuity payable to petitioner is concerned, is set aside. A writ of mandamus is issued to the respondents to forthwith release the withheld amount of gratuity together with 6% interest. In case the amount is not paid within four months from today, the petitioner shall be entitled to enhanced rate of interest at the rate of 8% per annum, and it shall be open for the authorities of the State to realise the additional interest from the salary of the officer found responsible for not ensuring release of gratuity to petitioner in terms of this order”.
14.Simple reading of the above ratio of judgment it is clear that withholding of gratuity per se is not prohibited in rule, but it should not be for a very long undefined period, as in the said case before the Hon‟ble High Court a period of four years was considered as a reasonable period from the date of the event leading to the submission of charge sheet and the employee being made to suffer for unexplained and undue delay on the part of the State or investigating agency and as delay cannot be attributed to the accused Government servant, the Court had no hesitation in holding that action of the respondents in withholding payment of gratuity to the petitioner was wholly illegal and arbitrary and could not be sustained and they allowed the Writ Petition.
15.The another case which the applicant has quoted is of Hon‟ble Supreme Court order dated 29.07.1998 in the case of Municipal Corporation of Delhi vs. Dharam Prakash Sharma – LAWS (SC)-1998- 7-26. Wherein the ratio of judgment is that after examining carefully the provisos of Pension Rules as well as provisions of Gratuity Act, 1972 the Hon‟ble Court ruled that as the Payment of Gratuity Act being a special act for payment of gratuity unless there was any provision therein which excludes its applicability to an employee who is otherwise governed by the Provisions of the Pension Rules, it is not possible for the Hon‟ble Court to hold that the respondents was not entitled to the gratuity until the payment of Gratuity Act, so the Hon‟ble Court rules that the MCD employee would be entitled for the payment of gratuity under the Payment of Gratuity Act which will prevail over the rules framed by the MCD. This case does not appears to be very relevant as the facts are different.
16.From the facts of this case it appears that the respondents have also agreed that the amount alleged to be defalcated by the applicant has already been deposited back. Hence, merely because the provision of withholding of gratuity is there in cases of pending judicial proceedings it may not appear to be justified in the instant case to withhold the full gratuity of the applicant. Considering the ratio of judgment in the case of Writ Petition No. 27391 of 2012 in the Hon‟ble High Court of Allahabad between Udai Narain Ojha vs. State of UP through its Secretary and other (supra) the present case also appears to be case of undefined extended period of Judicial proceedings as the alleged incidence has happened between the period from 13.06.2011 to 18.06.2011 and the applicant was compulsorily retired on 25.01.2016 since when 13 and 7 years respectively have passed and the Judicial proceedings have not been concluded. So there is a merit in the arguments of the learned counsel for the applicant that his gratuity should not be further withheld and should be released forthwith. Considering the same I pass following orders:-
“OA is allowed. The impugned order dated 05.09.2017 passed by the respondents is set aside. The respondents are directed to release the gratuity of the applicant within a period of four weeks from the date of receipt of a certified copy of this order, failing which after four weeks they shall pay the same with 6% interest. All associated MAs, if any, stand disposed off. No cost.””
Admittedly, in the present matter, pension as well as other terminal benefits except gratuity have been released in favour of the applicant. If the facts disclosed in the FIR are taken into consideration, the same was lodged in connection with a civil dispute i.e. ownership of the house and it is not related to the official duties of the applicant. He has superannuated on 31.07.2015. Therefore, as it has also been observed in the judgement and order quoted above, merely because the provision of withholding of gratuity is there in case of pending judicial proceedings, it is not justified to withhold the full gratuity for an indefinite period of time on the ground of pendency of criminal case especially when the same is not connected to the official duties of the employee and which are being extended for no fault of the retired employee which is also the case in the instant matter where personal civil dispute has resulted in the various criminal cases and FIRs filed against the applicant.
Taking into account the discussions made hereinabove, the O.A. is liable to be allowed and is accordingly allowed. The respondents are directed to release the gratuity amount of the applicant within a period of one month from the date of receipt of a certified copy of this order failing which the respondents shall pay a simple interest at the rate of 6% per annum also on the amount of gratuity payable to the applicant.
All associated M.As. also stand disposed of. No order as to costs.