Shyam Bahadur Singh v. State of U.P. others), and the Court proceeded to allow the same vide its

1. Heard Mr. B.S. Tiwari, learned Standing Counsel for the State-respondents and perused the material brought on the record.

2. By means of the instant petition, the petitioner has prayed for following two reliefs:- "(i) Issue an order, writ or direction in the nature of mandamus commanding the respondent to pay differences of salary including increments w.e.t. 2003 up to date. (iiA) Issue an order, writ or direction in the nature of mandamus commanding the respondent to pay post retiral benefit viz gratuity provident fund, leave encashment, pension and other consequential benefits with interest."

3. Petitioner had approached to this Court by means of instant petition in the year 2008 while he was service. However, during the pendency of the writ petition he attained the age of superannuation on 29.02.2012 and accordingly, second prayer has been added in the relief clause as IIA by means of the amendment application.

4. Briefly stated facts of the case are that petitioner along with one Shaym Bahadur Singh, Village Development Officer; Markandey Lal, Block Development Officer was placed under suspension in the matter of certain alleged irregularities in respect of development activities carried out by the team of these three in a project called "Dus Lakh Koop Yojna" (hereinafter referred to as the "Plan") and resulted financial loss to the State. Charge-sheet was issued to all three officers respectively, and while in the matter of Block Development Officer namely, Markanday Lal, enqiry was assigned to Commissioner, Azamgarh, the enquiry in the matter of other two employees Syam Bahadur Singh and petitioner was assigned to the Assistant Panchayat Raj Officer, Ballia.

5. The Assistant Panchayat Raj Officer, Ballia submitted a final report dated 20.01.2004 returning a finding to the effect that all the developmental activities that were to be carried out were in fact carried out and the work completion was there. However, so far as the quality of the work was concerned and the material used, this required vigilance enquiry for determination and it should be ordered and vigilance enquiry report should be obtained to fix liability, if any. It was also observed by the Inquiry Officer that since the charged officers were placed under suspension and have continued as such for quite a long period of time, their suspension ought to be revoked. Thus, in the domestic enquiry report, Inquiry Officer could not bring home the charge for having found the work/task accomplished but to remove the doubts regarding quality of work, he had observed that outcome of the vigilance enquiry should be awaited before any final opinion could be expressed.

6. It is contended that since the petitioner attained the age of superannuation on 29.02.2012 and no vigilance enquiry report saw the light of the day, the entire post retiral dues remain were unpaid to the petitioner. It is argued on behalf of the petitioner that no vigilance enquiry report was obtained in the matter for the reason that no vigilance enquriy as such was ever held. He submits that when a query was made by the Superintendent of Police, U.P. Vigilance, Establishment Varanasi from the Joint Director, Vigilance, U.P. Lucknow, he was informed that that enquiry being in a matter after the year 1997, records sent for vigilance enquiry, were received back and hence no enquiry was held. In the circumstance, therefore, it is pleaded by the learned counsel for the petitioner that petitioner could not have been made to suffer and in the absence of any eqnuiry whatsoever, he having not been found guilty of charges in the domestic enquiry, upon revocation of suspension he deserved annual increment ever since he was placed initially under suspension in the year 2003 and consequential pay fixation and arrears of difference of salary and so also the other emoluments after receiving pension etc. that became due at the time of attaining the age of superannuation including the amount of gratuity and leave encahsment. Mr. Tiwari, learned counsel for the petitioner submits that the other Village Development Officer i.e. Shaym Bahadur Singh had knocked the door of justice before this Court by means of a writ petition i.e. WRIT A No.-2164 of 2009 (Shyam Bahadur Singh Vs. State of U.P. & others), and the Court proceeded to allow the same vide its judgment and order dated 1.2.2013. The relevant portion of the aforesaid judgment is reproduced hereinunder:- "In any case, the Court finds that no vigilance enquiry is now pending. The petitioner has retired in 2007. Nearly 6 years have elapsed and proceedings, if any, against the petitioner has not been initiated and could not be now initiated in view of Regulation 351 A of the Civil Service Regulations, which stipulates that no departmental proceedings would be instituted with regard to an event, which took place more than four years from the date of the retirement. In the instant case, the alleged vigilance enquiry is of an incident of the year 1998-99, in which the petitioner was initially suspended and after a departmental enquiry, he was reinstated, since no charge was found or proved against him. In the light of the aforesaid, the writ petition is allowed and a writ of mandamus is issued commanding the respondents to release his gratuity, leave encashment, difference of salary during the suspension period, increments and difference of salary for the post of Assistant Development Officer (Panchayat) w.e.f. September, 2005 to 30th June, 2007 within three months from the date of production of a certified copy of the order along with interest @ 6 per cent per annum."

7. Mr. Tiwari, learned counsel for the petitioner has also placed reliance upon a Division Bench judgment and order dated 28.09.2018 passed in the matter of Markendy Lal, the Block Development Officer in WRIT - A No. - 45640 of 2006 (Markandey Lal Vs. State of U.P. and another) wherein, that petitioner was also similarly charged like the petitioner herein and was placed under suspension and submits that punishment order in the said case passed against that very petitioner dated 13.06.2006 was quashed being de-hors Regulation 351 A of the Civil Service Regulations. Learned counsel for the petitioner submits that the aforesaid petition came to be allowed with all consequential benefits. Mr. Tiwari, submits that petitioner's case is on a much better footing than that petitioner i.e. Markandey Lal as at no point of time, any order of punishment was passed against petitioner and since no vigilance enquiry was held in the matter for which the Department was to await, the petitioner deserved all consequential benefits like the annual increment, assured carrier progression, scheme benefits and consequential pay fixation etc. and accordingly received pension.

8. Learned Standing Counsel though sought to defend the stand taken by the respondents on the ground that vigilance enquiry since was proposed by the Inquiry Officer, the Department could not proceed with the final order in terms of the payment of post retirement dues to the petitioner. According to him, final opinion of enquiry officer remained inconclusive for pending vigilance enquiry. Learned Standing Counsel very fairly conceded that in fact no vigilance enquiry was ever held and petitioner duly discharged his duties after revocation of his suspension until he got superannuated but he could not be paid service benefits for not awarding annual increments etc. including the payment of salary while he was in service in 2010.

9. Rival submissions fall for consideration.

10. From the pleadings on record, it is clear that whatever was the outcome of the inquiry, petitioner was not indicted at all. The opinion of inquiry officer to hold vigilance enquiry was subject to discretion of the authority with the approval of the State Government as per procedure prescribed under the Government Order dated 07.12.1995. The enquiry officer in his report did not find any irregularity in the work inasmuch as in the enquiry report there was no view expressed regarding low quality work. This makes it apparently clear the charges leveled against the petitioner could not be brought home. Under the circumstances, denial of annual increment to an employee just for a fact that he was placed under suspension and withholding salary for that period is absolutely illegal. It is well settled law that suspension is no punishment as held by this Court in judgment and order dated 30.7.2024 passed in WRIT - A No. - 10576 of 2024 (Ram Ratan Suman Vs. State of U.P. and 4 Others).

11. Still further, I may observe, no absolute right vests with employer to withhold retirement dues of an employee without taking any recourse to legal provision that may entitle an employer to withhold such dues. Pension, grautity etc. are all lawful rights of an employee. In the matter of Poonamal Vs. Union of India (1985) 3 SCC 345, the Supreme Court has held that the pension is a right not a bounty. The relevant para 7 of the aforesaid judgment is reproduced hereinunder:- ".... pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right.

12. Following this above principle, the Supreme Court in the matter of Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others, (2011) 11 SCC 702, has held that "the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of compensation or for service rendered. In one sentence one can say that the most practical raison d,etre for pension is the inability to provide for oneself due to old age."

13. In my considered view, while the State is a model employer, such stand taken by the State is an example of high handedness on its part to withhold post retirement dues of any employee without holding any departmental enquiry whatsoever. This approach of the State cannot be approved. In such cases, a very arrogant attitude of officers dealing with the case is reflected and an employee is put to harassment for no fault on his part.

14. In view of the above, this petition deserves to be allowed with exemplary cost and also with good rate of interest upon dues that remained withheld wholly illegally as employee has been made to suffer for no justifiable reason. Learned Standing Counsel could not show from anywhere in the counter affidavit that at any point of time, vigilance enquiry was directed as per the relevant Government Order which required a Vigilance Inquiry Committee to be duly constituted to evaluate and assess the charges so leveled against the delinquent employee.

15. In view of the above, the instant petition succeeds and is hereby, allowed in following term:- (a). Petitioner is held to be entitled annual increment from the year 2003 when he was placed under suspension and also other services benefits like the different stages of assured carrier progression, if any, upon completion of prescribed period of service under relevant rules and government orders issued from time to time. (b). Petitioner is held entitled to gratuity and commutation of pension after its fixation and also consequential arrears of salary on account of annual increment being awarded in the year 2003. (c). The entire calculation shall be done by the respondents within a period of one month from the date of production of certified copy of this order along with the interest @ 12% upon all the dues. (d). The commutation of pension amount shall also be paid to the petitioner immediately after calculation of the entire dues. (e). The entire post retirement dues shall be calculated and be paid within a period of six weeks of finalization of the computation of the amount as dues, as per direction issued hereinabove. 16 . It is further provided that since the petitioner has been made to suffer for quite a long period of time for no fault on his part, the instant petition deserves to allowed with cost which is quantified as Rs.25,000. The cost amount shall be paid to the petitioner alongwith retirement dues as directed above. Order Date :- 28.4.2025 Sachin SACHIN TIWARI High Court of Judicature at Allahabad

1. Heard Mr. B.S. Tiwari, learned Standing Counsel for the State-respondents and perused the material brought on the record.

2. By means of the instant petition, the petitioner has prayed for following two reliefs:- "(i) Issue an order, writ or direction in the nature of mandamus commanding the respondent to pay differences of salary including increments w.e.t. 2003 up to date. (iiA) Issue an order, writ or direction in the nature of mandamus commanding the respondent to pay post retiral benefit viz gratuity provident fund, leave encashment, pension and other consequential benefits with interest."

3. Petitioner had approached to this Court by means of instant petition in the year 2008 while he was service. However, during the pendency of the writ petition he attained the age of superannuation on 29.02.2012 and accordingly, second prayer has been added in the relief clause as IIA by means of the amendment application.

4. Briefly stated facts of the case are that petitioner along with one Shaym Bahadur Singh, Village Development Officer; Markandey Lal, Block Development Officer was placed under suspension in the matter of certain alleged irregularities in respect of development activities carried out by the team of these three in a project called "Dus Lakh Koop Yojna" (hereinafter referred to as the "Plan") and resulted financial loss to the State. Charge-sheet was issued to all three officers respectively, and while in the matter of Block Development Officer namely, Markanday Lal, enqiry was assigned to Commissioner, Azamgarh, the enquiry in the matter of other two employees Syam Bahadur Singh and petitioner was assigned to the Assistant Panchayat Raj Officer, Ballia.

5. The Assistant Panchayat Raj Officer, Ballia submitted a final report dated 20.01.2004 returning a finding to the effect that all the developmental activities that were to be carried out were in fact carried out and the work completion was there. However, so far as the quality of the work was concerned and the material used, this required vigilance enquiry for determination and it should be ordered and vigilance enquiry report should be obtained to fix liability, if any. It was also observed by the Inquiry Officer that since the charged officers were placed under suspension and have continued as such for quite a long period of time, their suspension ought to be revoked. Thus, in the domestic enquiry report, Inquiry Officer could not bring home the charge for having found the work/task accomplished but to remove the doubts regarding quality of work, he had observed that outcome of the vigilance enquiry should be awaited before any final opinion could be expressed.

6. It is contended that since the petitioner attained the age of superannuation on 29.02.2012 and no vigilance enquiry report saw the light of the day, the entire post retiral dues remain were unpaid to the petitioner. It is argued on behalf of the petitioner that no vigilance enquiry report was obtained in the matter for the reason that no vigilance enquriy as such was ever held. He submits that when a query was made by the Superintendent of Police, U.P. Vigilance, Establishment Varanasi from the Joint Director, Vigilance, U.P. Lucknow, he was informed that that enquiry being in a matter after the year 1997, records sent for vigilance enquiry, were received back and hence no enquiry was held. In the circumstance, therefore, it is pleaded by the learned counsel for the petitioner that petitioner could not have been made to suffer and in the absence of any eqnuiry whatsoever, he having not been found guilty of charges in the domestic enquiry, upon revocation of suspension he deserved annual increment ever since he was placed initially under suspension in the year 2003 and consequential pay fixation and arrears of difference of salary and so also the other emoluments after receiving pension etc. that became due at the time of attaining the age of superannuation including the amount of gratuity and leave encahsment. Mr. Tiwari, learned counsel for the petitioner submits that the other Village Development Officer i.e. Shaym Bahadur Singh had knocked the door of justice before this Court by means of a writ petition i.e. WRIT A No.-2164 of 2009 (Shyam Bahadur Singh Vs. State of U.P. & others), and the Court proceeded to allow the same vide its judgment and order dated 1.2.2013. The relevant portion of the aforesaid judgment is reproduced hereinunder:- "In any case, the Court finds that no vigilance enquiry is now pending. The petitioner has retired in 2007. Nearly 6 years have elapsed and proceedings, if any, against the petitioner has not been initiated and could not be now initiated in view of Regulation 351 A of the Civil Service Regulations, which stipulates that no departmental proceedings would be instituted with regard to an event, which took place more than four years from the date of the retirement. In the instant case, the alleged vigilance enquiry is of an incident of the year 1998-99, in which the petitioner was initially suspended and after a departmental enquiry, he was reinstated, since no charge was found or proved against him. In the light of the aforesaid, the writ petition is allowed and a writ of mandamus is issued commanding the respondents to release his gratuity, leave encashment, difference of salary during the suspension period, increments and difference of salary for the post of Assistant Development Officer (Panchayat) w.e.f. September, 2005 to 30th June, 2007 within three months from the date of production of a certified copy of the order along with interest @ 6 per cent per annum."

7. Mr. Tiwari, learned counsel for the petitioner has also placed reliance upon a Division Bench judgment and order dated 28.09.2018 passed in the matter of Markendy Lal, the Block Development Officer in WRIT - A No. - 45640 of 2006 (Markandey Lal Vs. State of U.P. and another) wherein, that petitioner was also similarly charged like the petitioner herein and was placed under suspension and submits that punishment order in the said case passed against that very petitioner dated 13.06.2006 was quashed being de-hors Regulation 351 A of the Civil Service Regulations. Learned counsel for the petitioner submits that the aforesaid petition came to be allowed with all consequential benefits. Mr. Tiwari, submits that petitioner's case is on a much better footing than that petitioner i.e. Markandey Lal as at no point of time, any order of punishment was passed against petitioner and since no vigilance enquiry was held in the matter for which the Department was to await, the petitioner deserved all consequential benefits like the annual increment, assured carrier progression, scheme benefits and consequential pay fixation etc. and accordingly received pension.

8. Learned Standing Counsel though sought to defend the stand taken by the respondents on the ground that vigilance enquiry since was proposed by the Inquiry Officer, the Department could not proceed with the final order in terms of the payment of post retirement dues to the petitioner. According to him, final opinion of enquiry officer remained inconclusive for pending vigilance enquiry. Learned Standing Counsel very fairly conceded that in fact no vigilance enquiry was ever held and petitioner duly discharged his duties after revocation of his suspension until he got superannuated but he could not be paid service benefits for not awarding annual increments etc. including the payment of salary while he was in service in 2010.

9. Rival submissions fall for consideration.

10. From the pleadings on record, it is clear that whatever was the outcome of the inquiry, petitioner was not indicted at all. The opinion of inquiry officer to hold vigilance enquiry was subject to discretion of the authority with the approval of the State Government as per procedure prescribed under the Government Order dated 07.12.1995. The enquiry officer in his report did not find any irregularity in the work inasmuch as in the enquiry report there was no view expressed regarding low quality work. This makes it apparently clear the charges leveled against the petitioner could not be brought home. Under the circumstances, denial of annual increment to an employee just for a fact that he was placed under suspension and withholding salary for that period is absolutely illegal. It is well settled law that suspension is no punishment as held by this Court in judgment and order dated 30.7.2024 passed in WRIT - A No. - 10576 of 2024 (Ram Ratan Suman Vs. State of U.P. and 4 Others).

11. Still further, I may observe, no absolute right vests with employer to withhold retirement dues of an employee without taking any recourse to legal provision that may entitle an employer to withhold such dues. Pension, grautity etc. are all lawful rights of an employee. In the matter of Poonamal Vs. Union of India (1985) 3 SCC 345, the Supreme Court has held that the pension is a right not a bounty. The relevant para 7 of the aforesaid judgment is reproduced hereinunder:- ".... pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right.

12. Following this above principle, the Supreme Court in the matter of Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others, (2011) 11 SCC 702, has held that "the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of compensation or for service rendered. In one sentence one can say that the most practical raison d,etre for pension is the inability to provide for oneself due to old age."

13. In my considered view, while the State is a model employer, such stand taken by the State is an example of high handedness on its part to withhold post retirement dues of any employee without holding any departmental enquiry whatsoever. This approach of the State cannot be approved. In such cases, a very arrogant attitude of officers dealing with the case is reflected and an employee is put to harassment for no fault on his part.

14. In view of the above, this petition deserves to be allowed with exemplary cost and also with good rate of interest upon dues that remained withheld wholly illegally as employee has been made to suffer for no justifiable reason. Learned Standing Counsel could not show from anywhere in the counter affidavit that at any point of time, vigilance enquiry was directed as per the relevant Government Order which required a Vigilance Inquiry Committee to be duly constituted to evaluate and assess the charges so leveled against the delinquent employee.

15. In view of the above, the instant petition succeeds and is hereby, allowed in following term:- (a). Petitioner is held to be entitled annual increment from the year 2003 when he was placed under suspension and also other services benefits like the different stages of assured carrier progression, if any, upon completion of prescribed period of service under relevant rules and government orders issued from time to time. (b). Petitioner is held entitled to gratuity and commutation of pension after its fixation and also consequential arrears of salary on account of annual increment being awarded in the year 2003. (c). The entire calculation shall be done by the respondents within a period of one month from the date of production of certified copy of this order along with the interest @ 12% upon all the dues. (d). The commutation of pension amount shall also be paid to the petitioner immediately after calculation of the entire dues. (e). The entire post retirement dues shall be calculated and be paid within a period of six weeks of finalization of the computation of the amount as dues, as per direction issued hereinabove. 16 . It is further provided that since the petitioner has been made to suffer for quite a long period of time for no fault on his part, the instant petition deserves to allowed with cost which is quantified as Rs.25,000. The cost amount shall be paid to the petitioner alongwith retirement dues as directed above. Order Date :- 28.4.2025 Sachin SACHIN TIWARI High Court of Judicature at Allahabad