The Allahabad High Court, in the judgement given by Justice Ashwani Kumar Mishra in the case of Udai Naraian Ojha Vs State Of U.P. & Ors. stated that it is a violation of Article 300 of the Constitution of India, if the gratuity amount is withheld merely because a criminal investigation is pending.
In the present case, the petitioner has superannuated on 31/12/2012 from the post of Assistant Sub Inspector (Ministerial) in U.P. Police. The petitioner was alleged to have embezzled an amount of Rs.21,596/- in the year 2007 and a criminal investigation is pending and therefore an order was passed on 28/1/2012 to withheld his gratuity. The charge-sheet was filed against him on 20/4/2013. The question that requires to be considered in the present case is as to whether the amount of gratuity payable to retired employee of State can be withheld merely on account of pendency of criminal investigation against him at the time of retirement.
The Payment of gratuity to a government employee is regulated by the provisions of Civil Service Regulations and the U.P. Retirement Benefit Rules,1961. According to these rules,“The right of State to withhold or withdraw a part of pension, whether permanently or for a specified period, is available only if pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during service, including service rendered on re-employment after retirement. The proviso, however, makes it explicit that where judicial proceedings were not instituted while the officer was on duty either before retirement or during re-employment, it shall be instituted in accordance with sub clause (ii) of Clause (a) and (c), the Public Service Commission U.P. shall also be consulted before final orders are passed.” Also, The explanation to Article 351-A further provides that judicial proceedings shall be deemed to have been instituted in the case of criminal proceedings on the date when charge-sheet is submitted to a criminal court.
The Allahabad High Court in the present case stated that , “the power of State to withhold pension and gratuity, 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.” Also, “the employee cannot be made to suffer for any un-explained or undue delay on the part of the State or the investigating agency.” Therefore, in view of the above discussions, the Court has held that the action of respondents in withholding payment of gratuity of petitioner is wholly illegal, arbitrary and cannot be sustained. Therefore, it set aside the order dated 28/1/2012 that stated to withhold the payment of gratuity towards petitioner.
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Link to judgment: Udai Narain Ojha v. State of UP