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Jharkhand High Court: Rongon Mukhopadhyay J., rejected anticipatory bail to the ground in light of facts and submissions in the instant case.

The facts of the case are such that the petitioner who is a government employee wrote derogatory remarks in a Facebook post regarding a woman of Malaysian origin which was further circulated on Whatsapp prompting comments targeting a single community. The petitioner apprehends his arrest in connection with the instant case and seeks anticipatory bail before the Court.

The petitioner was represented by Advocate Kumar Amit and the respondent was represented by A.P.P Ruby Pandey.

Court observed that the man being a government employee took a screenshot of his Facebook post and he himself circulated that on Whatsapp group inciting derogatory remarks against a particular community. The allegations leveled are serious in nature and the fact that it was done by a government employee makes the entire incident all the more grave.

Hence the court held that in light of the aforesaid facts and observations petitioner is not liable to be granted anticipatory bail.

In view of the above, the bail was rejected and the petition disposed of.[Shesh Nah Yadav v. State of Jharkhand, 2020 SCC OnLine Jhar 790, decided on 09-09-2020]


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Allahabad High Court: A Full Bench of Pankaj Mithal, Suneet Kumar and Rohit Ranjan Agarwal, JJ. dismissed a batch of writ petitions seeking entitlement to receive death-cum-retirement gratuity while judicial proceedings were pending.

The petitioners were government employees (Lekhpal/Police Officials), who had retired on attaining the age of superannuation, and by the impugned orders, their full pension and gratuity had been withheld due to pending judicial proceedings against them. The petitioners had sought quashing of the impugned orders declining full pension and gratuity during pendency of the judicial proceedings and further sought an additional direction to the respondent authority to release/pay full pension and gratuity.

Suneet Kumar, J. after hearing the submissions of the learned counsels for the petitioners and respondents, stated his judgment. He held that pendency of disciplinary/judicial proceedings on the date of retirement or instituted after retirement, provisional pension equal to maximum pension as mandated under Article 919A of the Civil Service Regulations, may be sanctioned to the government servant for the period unto conclusion of the proceedings. (Article 351AA/ Article 919A (1)/(2)) but no gratuity was payable to the government servant during the pendency of disciplinary/judicial proceedings by Administrative Tribunal, until the conclusion of the proceedings and orders being passed thereon by the competent authority under Article 919 A(3).

Reliance was placed on State of U.P. v. Jai Prakash, 2014 (1) ADJ 207 which held that government servant was not entitled to gratuity but to a provisional pension during the pendency of proceedings/enquiry.

Pankaj Mithal, J. also came to the same conclusion and opined that pension of a government servant could be withheld or withdrawn, if he was convicted in a crime or was found guilty of misconduct, but if he was neither convicted nor found guilty of misconduct but a departmental or judicial proceedings or any enquiry by the Administrative Tribunal was pending against him at the time of his retirement or is likely to be instituted, he would be entitled to provisional pension in accordance with Regulation 919A. He emphasized on the sub-clause 3 of Regulation 919-A which laid down that no death cum retirement gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative tribunal and issue of the final order thereon.

Thus, in view of aforesaid facts and authorities, the Court unanimously held that a government employee was not entitled to death cum retirement gratuity unless the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal or judicial proceedings which included both civil and criminal and the reference to the Full Bench accordingly was answered.[Shivagopal v. State of U.P., 2019 SCC OnLine All 2239, decided on 08-05-2019]

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Chhattisgarh High Court: Sanjay K. Agrawal, J. has held that a Government servant is not entitled to make a Will of the family pension which is granted in accordance with the service rules.

Vijay Kumar Kaushik, Head Constable in the Police Department, died in harness. He had two wives and children from each of them. After his death, the first wife and her children (petitioners) made an application under Section 372 of the Indian Succession Act, 1925 for grant of Succession Certificate claiming family pension, gratuity, and other benefits. This was opposed by the second wife and her children (respondents) contending that Vijay Kumar had already made a Will in their favour and also nominated them in service records, and therefore the petitioners were not entitled for grant of succession certificate. Petitioner’s application was rejected by the trial court, which decision had been affirmed by the appellate court. Aggrieved thereby, the petitioners filed the present revision petition under Section 388(3) of the 1925 Act.

Shivali Dubey, Advocate appeared for the petitioners; Devesh Chandra Verma, Advocate represented the respondents (second wife and her children); and Hari Agrawal, Advocate appeared as amicus curiae, whose assistance was appreciated by the Court.

Applying the principles laid down by the Supreme Court in Jodh Singh v. Union of India, (1980) 4 SCC 306; Violet Isaac v. Union of India, (1991) 1 SCC 725; and Nitu Singh v. Sheela Rani, (2016) 16 SCC 229, the High Court recapitulated the guiding principles of law relating to retiral benefits vis-a-vis their testamentary disposition:

(i) An employee has no power of testamentary disposition with respect to something which was not payable to him during his lifetime.

(ii) If the qualifying event/benefit occurs only on the death of the deceased while he is in service and due to this, some monetary benefits accrue, it would not form part of the estate of the deceased and the same cannot be disposed by testamentary disposition because there is an element of uncertainty of happening of event.

(iii) If the scheme and/or service rules designate certain persons who are entitled to receive benefits out of the scheme, then no other person except those designated persons can be entitled to the said benefits.

(iv) If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.

(v) If the scheme/Rules do not provide for the nomination of any person during the lifetime of the deceased employee, he has no title to the same and it cannot be disposed by testamentary disposition.

However, it was made clear that the said principles are not exhaustive and the condition laid above are independent of each other and not mutually destructive and in the event of any of the conditions being fulfilled, it cannot be said that testamentary disposition can be made with respect to the said benefit.

In light of the principles, the Court decided the present revision petition under different heads. The disbursement of the family pension, gratuity and other retirement benefits in the present case were governed by Chhattisgarh Civil Services (Pension) Rules, 1976. As far as family pension was concerned, it was held that same was payable only to the family of a deceased employee, and Petitioner 1 being the legally wedded wife of Vijay Kumar, she was entitled to the entire amount of the said pension. Similarly, ex-gratia amount and police welfare amount were payable only after the death of the employee. As such, they did not form part of the estate of the deceased and thus could not be disposed by way of testamentary disposition. However, the benefits under the heads of gratuity, leave encashment, group insurance scheme, family benefits fund and department provident funds formed part of the estate of the deceased employee and therefore could be disposed by in terms of the Will made by the deceased employee.

Consequently, the petitioners were held entitled to the Succession Certificate with regard to family pension, ex-gratia and police welfare payment. The revision petition was disposed of in such terms. [Samunda Bai v. General Public, 2019 SCC OnLine Chh 29, dated 15-04-2019]

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Jammu and Kashmir High Court: The Bench of Sanjeev Kumar, J., disposed of the petition filed against the order of transfer and for release of salary for a certain period with the instruction to pay the salary to the employee for the period the petitioner claimed to have performed his duties. The order of transfer was upheld.

The facts of the case were that the petitioner was transferred from Chadoora to Handwara. The petitioner challenged the impugned order on the ground that his salary for the period when he was working as Junior Engineer in Kupwara was released either by the PHE Division, Kupwara, or the PHE Division, Chadoora. The petitioner was actually relieved after a few months of his transfer notice.  While the petitioner was working in PHE Division Kupwara, his salary for the period from August, 2016 to April, 2017 was not released on account of non-availability of requisite funds in the Division.

The Court held that the challenge to the transfer order should fail because the order was passed in the interest of administration. The petitioner had no right to remain posted at a particular place indefinitely or for a specified period. With regard to release of salary of pay, the Court held that the petitioner cannot be denied the hard-earned salary on any count, if he has worked. The paucity of funds cannot be an excuse to deny the salary to a Government employee. [Ghulam Hassan Khawja v. State of J&K, 2019 SCC OnLine J&K 243, Order dated 07-03-2019]

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Jharkhand High Court: A Single Judge Bench of Dr S.N. Pathak, J., partly allowed a writ petition filed against the order of the respondent authorities, whereby the authorities recovered the Academic Grade Pay (AGP) granted to the petitioner behind his back on the ground that only promoted employees are entitled for AGP.

The main issue for consideration, in this case, was whether the respondent authorities can recover the AGP granted to the petitioner without following the principles of natural justice.

The Court observed that if excess money is given to a government employee, then it can be duly recovered since such money does not belong to the payer or the payee, it belongs to the public at large. However, in the instant case the petitioner had superannuated on 31-03-2016 and without adhering to the provisions of law, the amount has been ordered to be recovered.

The Court held that it is a settled proposition of law that no recovery can be done from the retiral benefits without conforming to the principles of natural justice and without following the due process of law and hence the respondent authorities cannot recover the AGP granted to the petitioner in the present case. However, the pension of the petitioner was directed to be fixed as per the pay-scale which the petitioner was actually entitled to receive. Accordingly, the petition was allowed in part by the Court.[Ram Pyare Mishra v. State of Jharkhand,2018 SCC OnLine Jhar 781, order dated 03-07-2018]