IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 56 of 2005 The State of Uttar Pradesh and others. …...…Petitioners. Versus Khusal Singh Patwal and another. ….…Respondents. Present:- Mr. Bindesh Kumar Gupta, Addl. Advocate General for the State of Uttarakhand/petitioners. None for respondent no.1 . Ms. Beena Pande, Standing counsel for the State of Uttar Pradesh/respondent no. 2. & Writ Petition (S/B) No. 336 of 2005 State of Uttaranchal and others ……Petitioners. Versus Khusal Singh Patwal and another. ….…Respondents. Present:- Mr. Bindesh Kumar Gupta, Addl. Advocate General for the State of Uttarakhand/petitioners. None for the respondents. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Barin Ghosh, C.J, (Oral) 1. Sri Khusal Singh Patwal is respondent in Writ Petition No. 56 (S/B) of 2005 as well as in Writ Petition No. 336 (S/B) of 2005. 2. We have heard learned counsel for the State. We could not hear the learned counsel for Khusal Singh Patwal since he is not present. We deal with the matter as below: 3. Khusal Singh Patwal (hereinafter referred to as the respondent) was an employee of the State of Uttar Pradesh. While the respondent was such an employee, he was suspended with effect from 2.5.1986, inasmuch as, a criminal case was launched against him, where the allegation was that the respondent had murdered one Sri Surendra Dutt Chamoli, who happened to be a “Van Daroga”, and as such, an employee of the State of Uttar Pradesh. During the period between 30.4.1986 and 14.7.1986 the respondent was paid subsistence allowance. He reached the age of superannutation on 30.6.1989 upon 2 attaining the age of 58 years. On 29.7.1989, the respondent was allowed to retire with effect from 30.6.1989. The criminal case was decided on 24.10.1989, when respondent was convicted for having had murdered the said Surendra Dutt Chamoli. The respondent preferred an appeal against the order of conviction and at the same time sought for and obtained bail from the Hon’ble High Court at Allahabad. When the said appeal was pending, by an order dated 21.8.1993, the respondent was dismissed from service with effect from 2.5.1986. This order dated 21.8.1993 was called in question by the respondent before the Tribunal. By the judgment and order dated 16.10.1997, the Tribunal allowed the claim petition of the respondent, quashed the order dated 21.8.1993 with a direction upon the State of Uttar Pradesh to pay salary to the respondent until the date of superannuation of the respondent, less payment by way of subsistence allowance already made. Being aggrieved by the said judgment and order of the Tribunal, the State of Uttar Pradesh has preferred Writ Petition No. 56 (S/B) of 2005 which was originally presented in the year 1998 before the Hon’ble High Court at Allahabad (Lucknow Bench) and was registered as Writ Petition No. 46 (S/B) of 1998. After the said writ petition was transferred to this Court from Allahabad High Court, the State of Uttaranchal filed Writ Petition No. 336 (S/B) of 2005, which we treat to have been preferred also by the State of Uttar Pradesh, inasmuch as, it appears to us that the direction of the Tribunal impugned in Writ Petition No. 336 (S/B) of 2005 is against the State of Uttar Pradesh. 4. During the pendency of this writ petition it has come on notice that the appeal preferred by the respondent against the conviction order has been dismissed. It has also come to the notice that the respondent has not taken the matter before the Hon’ble Supreme Court. In such view of the matter, conviction of the respondent stands affirmed. The question is, in the changed scenario is there any scope of interference? 5. The fact remains that the respondent retired on 30.6.1989. He was permitted to do so specifically by an order dated 29.7.1989. By 3 reason thereof with effect from 1.7.1989 the relationship of employer and employee in between the State of Uttar Pradesh and the respondent came to an end. Subsequent to 1.7.1989, the State of Uttar Pradesh could not dismiss the respondent. The ground upon which the order of dismissal was passed on 21.8.1993, as would be evident therefrom, is the conviction of the respondent awarded on 24.10.1989. The ground to dismiss accrued and the order of dismissal was passed subsequent to the respondent retiring from the services upon due grant of permission to do so. That being the situation, there is hardly any scope of interference with the order passed by the Tribunal on 16.10.1987 as impugned in Writ Petition No. 56 (S/B) of 2005. After the respondent retired, he could not be dismissed with retrospective effect as any order of dismissal can only be perspective. Further more as the order of conviction, being the ground for termination, was perspective, the order of termination on the ground of conviction could only be perspective. In those circumstances, the order of termination dated 21.8.1993 is not legally sustainable and accordingly there is no scope of interference with the order of the Tribunal dated 16.10.1987 to that effect. Inasmuch as the suspension of the respondent was revoked on 29.7.1989 in order to permit him to superannuate on 30.6.1989, the disciplinary authority remained obliged to the respondent to pass a necessary order for treatment of the period of suspension, which order seems to have not yet been passed. In view of the conviction of the respondent and inasmuch as the respondent was suspended for a criminal case was pending against him, it became obligatory on the part of the disciplinary authority to decide the pay and allowances payable during the suspension period and in particular to decide whether the period shall be treated as spent on duty or not. Inasmuch as such decision has not yet been taken by the disciplinary authority, we have no other option but to interfere with that part of the order of the Tribunal dated 16.10.1997 by which the Tribunal has directed the State of Uttar Pradesh to give full salary to the petitioner for the period from the date of suspension till the date of superannuation except the payment already made and accordingly 4 set aside the said part of the order of the Tribunal. However, in the event, disciplinary authority does not pass such an order as contemplated in Rule 5 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1989 within a period of three months from today, it shall be deemed that the disciplinary authority has decided to treat the suspension period of the respondent as spent on duty and accordingly the respondent shall be entitled to salary for the said period. 6. We were told by the learned counsel for the State of Uttar Pradesh that Central Civil Services (Pension)Rules, 1972 or Rules akin thereto govern pension payable to the respondent. In terms thereof, future good conduct is an implied condition for every grant of pension. Even after grant of pension under the Rules, if the pensioner is convicted, his pension may be withheld or withdrawn wholly or in part, temporarily or permanently. Inasmuch as pension was not given to the respondent despite he having retired upon attaining the age of superannuation on being permitted to do so, it appears that the State of Uttar Pradesh did not exercise power under the appropriate pension Rules. While therefore acknowledging that the respondent became entitled to pension on and from the date of his supernannuation until the date of his conviction we modify the order of the Tribunal impugned in the Writ Petition No. 336 (SB) of 2005 by directing the State of Uttar Pradesh to forthwith but not later than three months from today sanction and grant pension to the respondent on and from the date of his superannuation with liberty to pass such appropriate order as it may deem fit and proper, to be effective from 24.10.1989 i.e. the date the respondent was convicted, pertaining to such pension to be paid to the respondent. The writ petitions are thus disposed of. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 04.10.2010 Rathour