Allahabad HC: Gratuity Cannot Be Released While Criminal Case Remains Pending, Regulation 919-A Admits No Exception for Seriousness of Offence
A retired UP Police constable's bid to claim gratuity during a pending criminal case fails; the court holds Regulation 919-A bars payment until proceedings conclude, making the seriousness of the offence an irrelevant consideration at that stage.
Justice Anish Kumar Gupta, sitting singly at the High Court of Judicature at Allahabad, dismissed a writ petition filed by a retired UP Police constable who sought release of his gratuity and final retiral dues while a criminal case arising from his service conduct remained pending trial. The court held that Regulation 919-A(3) of the Civil Services Regulation as applicable in Uttar Pradesh categorically prohibits payment of death-cum-retirement gratuity until judicial or departmental proceedings conclude and final orders are passed. Critically, the court ruled that the seriousness of the alleged offence is not a relevant consideration for the applicability of Regulation 919-A — a position that departs from how several coordinate benches had read the same regulations. The judgment engages at length with a conflicting line of single-bench decisions before anchoring itself to the Full Bench ruling in Shivagopal and others v. State of U.P., reported at 2019 (5) ADJ 441 (FB).
The Dispute Before the Court
Hanuman Prasad Yadav served as a constable in the UP Police. He retired on superannuation on 31 March 2016. After retirement, the department released only a provisional pension. Gratuity and leave encashment were withheld by an order dated 8 June 2016, the ground being the pendency of Case Crime No. 446 of 2008 under Sections 223 and 224 IPC registered at Police Station Wazeerganj, District Lucknow.
The FIR arose from a 2008 incident in which Yadav was on escort duty for an accused before the Gangster Court at Lucknow. The accused absconded from his custody. Departmental proceedings were also initiated under Rule 14(i) of the 1991 Rules. An initial dismissal order dated 5 October 2010 was set aside by the High Court for want of a show-cause notice. A fresh punishment order dated 26 September 2013 reverted him to the minimum pay scale for one year. Separately, a Government Order dated 25 November 2013 denied him salary for the period 5 October 2010 to 14 July 2013 when he had not performed duty.
The criminal case, however, was not concluded. The petitioner came to court arguing that his gratuity could not be withheld indefinitely solely because a criminal trial was pending, particularly when the offence involved was not “serious” in the sense the regulations contemplated.
The Regulatory Framework
The State relied on Regulations 351-AA and 919-A of the Civil Services Regulation. Regulation 351-AA provides that where departmental or judicial proceedings are pending on the date of retirement, only a provisional pension as provided in Regulation 919-A may be sanctioned. Regulation 919-A(3) states, in unambiguous terms, that no death-cum-retirement gratuity shall be paid until the conclusion of the departmental or judicial proceedings and the issue of final orders thereon.
Regulation 351, by contrast, deals with a different scenario: it empowers the State Government to withhold or withdraw pension if a pensioner is convicted of a serious crime or found guilty of grave misconduct. Regulation 351-A empowers the Governor to withhold or withdraw pension, or to order recovery from pension for pecuniary loss, once a pensioner is found guilty in departmental or judicial proceedings.
The distinction matters because Regulations 351 and 351-A operate after proceedings conclude, while Regulation 919-A(3) operates during their pendency. The court's task was to identify which set of provisions governed Yadav's case.
Conflicting Coordinate Bench Decisions
The petitioner placed before the court eight prior decisions of coordinate benches and division benches. The court examined each carefully before identifying a consistent doctrinal flaw running through most of them.
In Devendra Kumar Sharma v. State of U.P. (Writ-A No. 15093 of 2020), a coordinate bench had relied on paragraph 39 of the Shivagopal Full Bench to direct release of gratuity, reading that paragraph as confining Regulation 919-A's operation to cases involving serious crime only.
In Arun Kumar Singh v. State of U.P. (Writ-A No. 10536 of 2021), another coordinate bench directed release of retiral dues on the ground that no pecuniary loss to the Government had been alleged in the criminal case.
In Udai Veer Singh v. State of U.P. (Writ-A No. 8039 of 2018), the bench had acted on the long pendency of the criminal proceedings and the petitioner's illness to direct payment, with a recovery condition in case of eventual conviction. The Special Appeal and the Special Leave Petition against that order were both dismissed. Justice Gupta noted, however, that Udai Veer Singh “was passed in peculiar facts of the case and do not lay down any law.”
In Deo Narain Singh v. State of U.P. (Writ-A No. 17141 of 2012), gratuity was released because the petitioner was not himself an accused in the pending proceedings.
In the Division Bench decision in State of U.P. v. Bal Kishan Tiwari (Special Appeal Defective No. 440 of 2014), the bench had ruled that once departmental proceedings for the same allegations concluded with a minor punishment, withholding pension and gratuity pending the criminal trial on the same facts could not be sustained.
In Santosh Kumar Singh v. State of U.P. (Writ-A No. 26972 of 2013) and Sukh Sagar Shukla v. State of U.P. (Writ-A No. 30100 of 2015), coordinate benches had held that mere pendency of a criminal case does not entitle the authority to withhold gratuity. The court noted that neither judgment had dealt with the provisions of Regulation 919-A at all.
Justice Gupta concluded that most of the decisions relied on by the petitioner either did not engage with Regulations 351-AA and 919-A, or were decided on facts specific to those cases. The Arun Kumar Singh decision did refer to Regulation 919-A but, in the court's assessment, did not deal with its impact in categorical terms.
How the Bench Reasoned
The court anchored its analysis in the Full Bench ruling in Shivagopal. That bench had set out, in paragraphs 66 to 69 of its judgment, that a government servant or pensioner cannot preempt pending proceedings by claiming full pension or gratuity before the competent authority has passed orders upon conclusion of those proceedings. The Full Bench held that the cause of action for passing appropriate orders under Regulations 351 and 351-A arises only after proceedings conclude, and until then the pensioner must wait.
The coordinate bench in Devendra Kumar Sharma had, in the court's reading, misread paragraph 39 of Shivagopal. That paragraph deals with what constitutes a “serious crime” for the purposes of Regulation 351, which applies post-conviction. It does not carve out an exception to the bar in Regulation 919-A(3) during pendency of proceedings.
The court also relied on the coordinate bench decision in Krishna Chandra Pandey v. State of U.P., 2018 Law Suit (All.) 3834, which had examined the same regulations and held that the power under Regulation 919-A cannot be exercised mechanically, but also that where the charges against a pensioner are serious in nature, the withholding of gratuity is justified and valid. That bench had specifically noted that several earlier decisions had, perhaps inadvertently, failed to notice Regulations 351-AA and 919-A even though they existed on the statute book at the time.
Justice Gupta then turned to the specific facts. The offence — allowing a Gangster Act accused to escape from police custody — was, in the court's assessment, serious in nature. It directly affected the administration of justice and could not be reduced to mere negligence. Criminal proceedings on that allegation were still pending.
On the question whether Regulation 351-AA and 919-A applied at all, the court held that they did. Departmental proceedings had concluded with a punishment of reversion for one year. The criminal case, however, remained alive. Provisional pension had already been released to the petitioner. Only gratuity and final retiral dues had been withheld. Regulation 919-A(3) in terms prohibits payment of death-cum-retirement gratuity until the judicial proceedings conclude and final orders are passed. The court held that in this statutory scheme, the seriousness of the offence is irrelevant to whether Regulation 919-A(3) applies. The bar is absolute during pendency.
Why the Reasoning Matters
The judgment draws a sharp line between two distinct regulatory tracks. Regulations 351 and 351-A are post-conclusion powers: they allow the State to act after a conviction or a finding of grave misconduct. Regulations 351-AA and 919-A are interim-pendency provisions: they allow provisional pension but prohibit gratuity during the currency of proceedings. Conflating the two tracks had produced the divergence in coordinate bench decisions. By insisting that the “seriousness of offence” test belongs only to the Regulation 351 analysis and not to the Regulation 919-A bar, the court closes what it regards as an erroneous doctrinal shortcut.
The practical consequence for similarly placed retired government servants in Uttar Pradesh is significant. Where criminal proceedings are pending on the date of retirement or are instituted thereafter, Regulation 919-A(3) operates as an automatic bar on gratuity payment regardless of the nature of the charge. The pensioner's remedy, the court holds, lies only after acquittal or final order.
Outcome
The writ petition was dismissed. The court held that Hanuman Prasad Yadav is not entitled to release of gratuity or final retiral dues at this stage, while the criminal proceedings in Case Crime No. 446 of 2008 remain pending. He was, however, given liberty to approach the respondents for release of gratuity upon his acquittal in that case. In the event of acquittal, the court directed that he would be entitled to all retiral dues including gratuity.