Bangali Babu Misra Vs. State of U.P. and ors. - Court Judgment

Excerpt:
service - terminal benefits - article 226 of constitution of india - petitioner challenged order withholding his terminal benefits during pendency of criminal case - involvement in criminal case cannot result in denial of rights in absence of any service rule or provisions or government order to this effect - criminal case has no nexus with present case - held, in absence of any law petitioner cannot be disentitled from terminal benefits. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - the defence taken in the writ petition and as urged by the learned counsel for the respondents clearly establishes that there is no rule nor any provision of law under which in the circumstances of the present case, namely ;the pendency of criminal case with respect to a trap case, the post retiral dues or pension can be withheld, stopped or delayed. 100 in the year 1990. the state could not even submit charge-sheet prior to the filing of the writ petition and it was only when this petition was filed in this court, it has been informed by the learned standing counsel that charge-sheet has been submitted in the court on 6th november, 2002. we are not commenting on the criminal proceedings which may take its own course but would like to observe that the state should be prompt in concluding the criminal proceedings, if initiated against the government servant and the matter should not be allowed to linger as it some times gives undue advantage to the charged government servant and sometimes, it adversely affects the government servant and his family. the right of speedy trial, being a fundamental right as declared by the apex court could not be defeated or marred in any manner.pradeep kant and kamal kishore, jj.1. heard the learned counsel for the petitioner sri sandeep dixit and sri harsh vardhan the learned standing counsel.2. since counter and rejoinder-affidavits have been exchanged, we had proceeded to dispose of the writ petition finally.3. the petitioner joined the services as veterinary assistant surgeon in the year 1972. while he was posted as veterinary officer at veterinary hospital, jaitpur kalan, district agra in the year 1990, he was caught in a trap case regarding which first information report was lodged, in which the investigation is still going on and a charge-sheet is said to have been filed in the court on 6.11.2002. this information has been given by the learned standing counsel on the basis of instructions received and on the basis of record available to him. the petitioner was allowed to continue in service throughout.4. the petitioner was suspended in the year 1992 against which order he filed writ petition no. 7094 (s/b) of 1992 in which the high court passed an order of stay, staying the operation of the suspension order and provided that in case the charge-sheet in the criminal case is served on the petitioner, it shall be open to authorities to approach this court for vacation of the interim order. the disciplinary proceedings, if any, were allowed to be continued and were directed to be concluded as expeditiously as possible. the petitioner was ordered to be paid full salary regularly every month. obviously, the state could not move any application for vacation of stay order on the ground mentioned in the interim order as the charge-sheet was not served upon the petitioner and it has been submitted in the court only on 6.11.2002, as a consequence, the petitioner was continuously allowed to perform his duties. during the pendency of the aforesaid writ petition, he reached the age of superannuation and retired on 28.2.2001. so far the suspension is concerned that has automatically come to an end on reaching the age of superannuation of the petitioner.5. the grievance of the petitioner is that despite the petitioner having been allowed to work and having been paid salary, is not being paid his post-retiral dues and pensionary benefits, therefore, for the payment of the same, the present petition has been filed.6. withholding of the post-retiral dues, may be, gratuity, pension or other dues after the retirement of a government servant can be done only in accordance with any rule. in absence of any such rule or any such law, the post-retiral dues cannot be withheld neither the pension can be stopped nor curtailed nor reduced. the defence taken in the writ petition and as urged by the learned counsel for the respondents clearly establishes that there is no rule nor any provision of law under which in the circumstances of the present case, namely ; the pendency of criminal case with respect to a trap case, the post retiral dues or pension can be withheld, stopped or delayed.7. shrt harsh vardhan, learned standing counsel laid emphasis upon a government order dated 28th july, 1989, in particular para 3 (3) of the said government order in support of the action taken by the opposite parties for withholding the retiral dues of the petitioner. a bare perusal of the aforesaid paragraph of the government order reveals that it relates to such a government servant against whom some departmental/ judicial or administrative enquiry is pending on the date of retirement. it nowhere provides that if criminal proceedings are pending, even then the said government order would apply. suffice it would to mention that such a provision could not have been made for the simple reason that unless departmental proceedings have been initiated or some judicial or administrative proceedings have been initiated for the purpose of determining the guilt of the government servant during the course of service, mere pendency of the criminal proceedings cannot be a ground for taking any action against the petitioner with respect to payment of his post-retiral dues. it may be taken note of that rule 470b of the civil service regulations is no more available as the same has been deleted. any departmental enquiry with respect to a government servant, cannot be either initiated or continued after he reaches the age of superannuation otherwise in accordance with the provisions of regulation 351a of the civil service regulations as per the aforesaid regulations. the aforesaid regulation is being reproduced below :'351a. the provincial government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th august, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to government by the negligence or fraud of such officer during his service : provided that : (1) such departmental proceedings, if not instituted while the officer was on duty. (i) shall not be instituted save with the sanction of the provincial government ; (ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is later ; (iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty ; and (iv) shall beconducted bysuch authorityand in suchplaces whether inindia orelsewhere, as theprovincialgovernment maydirect ; (2) all such departmental proceedings shall be conducted, if theofficer concerned sorequests inaccordance with theprocedure applicableto departmentalproceedings on whichan order of dismissalfrom service may bemade ; and (3) such judicialproceedings, if notinstituted while theofficer was on duty,shall have beeninstituted inaccordance with sub-clauses (ii) and (iii) ofclause (1).' 8. the aforesaid regulation also cannot be of any assistance in the instant case as it reserves a right to the government for ordering recovery from the pension of an officer who entered service on or after 7th august, 1940, of any amount on account of losses found in judicial or departmental proceedings having been caused to the government by negligence or fraud of such officer during the service. it is not the case of the opposite parties that any departmental proceedings or judicial proceedings were initiated or pending against the petitioner for any alleged losses caused to the government by his negligence or fraud during his service. the government order has to be read in the light of the provisions of aforesaid regulations and any interpretation enlarging the scope of the government order would mean to read beyond the terms of the government order and the same would also be rendered contrary to the provisions of regulation 351a of the civil service regulations, which would not be permissible.9. the petitioner was subjected to a trap case for an alleged amount of rs. 100 in the year 1990. the state could not even submit charge-sheet prior to the filing of the writ petition and it was only when this petition was filed in this court, it has been informed by the learned standing counsel that charge-sheet has been submitted in the court on 6th november, 2002. we are not commenting on the criminal proceedings which may take its own course but would like to observe that the state should be prompt in concluding the criminal proceedings, if initiated against the government servant and the matter should not be allowed to linger as it some times gives undue advantage to the charged government servant and sometimes, it adversely affects the government servant and his family. the right of speedy trial, being a fundamental right as declared by the apex court could not be defeated or marred in any manner. since there is no provision under any of the service rules or the government orders or any other law and at least no such provision has been cited before us by the learned standing counsel, even if the petitioner is subjected to any punishment in the criminal proceedings that would be of no consequence so far his service tenure or service benefits are concerned. in view of the above, we are of the view that the action of opposite parties in not releasing the entire post-retiral benefits or dues to the petitioner on the ground of pendency of criminal proceedings in a trap case, cannot be said to be reasonable or legal.10. we, therefore, allow the writ petition. a mandamus is hereby issued directing the opposite parties to release the entire post-retiral dues of the petitioner including the gratuity, pension, commutation, leave encashment, group insurance etc. which shall be paid to the petitioner within a period of three months from the date the certified copy of this order is produced before the authorities concerned. the petitioner shall be allowed to continue to be paid provisional pension within the aforesaid period. the opposite parties shall fix the final pension and shall pay the same regularly thereafter. the arrears of the entire amount such as difference of pension shall also be paid to the petitioner within the aforesaid period of three months.11. the writ petition is allowed. no order as to costs.