JUDGMENT
Vineet Saran, J.
1. The petitioner joined the U.P. Police Service as a Constable in 1958. He was promoted as Head Constable in 1978. A criminal case was lodged against the petitioner in which he was convicted by judgment and order dated 9.9.1993 under Sections 147, 149, 323, 304 I.P.C. Challenging the said judgment, the petitioner filed Criminal Appeal No. 1574 of 1993 in which the petitioner was granted bail and by order dated 14.9.1993 the execution of the sentence was suspended by following order:
The execution of sentence passed by Sri S.N. Pandey Special Judge Gorakhpur in Special Session Trial No. 329 of 1990 on 9.9.1993 shall remain suspended during the pendency of the appeal.
The petitioner continued in service and was also paid his salary till he superannuated on 30.11.1997. Since after retirement the petitioner was not being paid his regular pension and other retiral dues, he filed several representations and when the respondents still did not pay such dues to the petitioner, he has filed this writ petition with the prayer for release of his pension with interest and also to give him provident fund and other retiral dues.
2. I have heard Sri S.S. Rathore and Vinai Kumar Singh, learned Counsel appealing for the petitioner as well as learned Standing Counsel appearing for the respondents and have perused the record.
3. The submission of the learned Counsel for the petitioner is that having been permitted to continue in service even after the conviction order dated 9.9.1993, the petitioner would be entitled to payment of pension, as pension is paid in lieu of services rendered.
4. Learned Standing Counsel has, however, submitted that under Regulation 351-AA of the Civil Services Regulations, the respondents have a right to withhold pension in case if there is any judicial proceeding pending against a retired employee and that under Regulation 919-A of the said Civil Services Regulations there is a provision for grant of provisional pension, which is being paid to the petitioner.
5. I have considered the rival submissions of the learned Counsel for the parties. The facts as borne out from the record are that though the petitioner was convicted and sentenced for three years imprisonment by judgment and order dated 9.9.1993 passed by the Sessions Court, the said sentence was stayed by this Court by order dated 14.9.1993 in a criminal appeal, which is still pending decision in this Court. Even after conviction of the petitioner, he was permitted to continue in service. Once the employer had chosen to permit the petitioner to continue in service even after conviction (on the basis of the order passed in appeal) and he was paid his salary till he retired from service on 30.11.1997, I seen no reason why the respondents have now, after his retirement, chosen to withhold his pension, even though the said stay older of the High Court, whereby the sentence of the petitioner had been suspended, is still continuing. It would have been a different case if the respondents had stopped taking work from the petitioner immediately after his conviction.
6. The pension is actually earned by the petitioner and is paid in lieu of the services rendered by him during the prime period of his life. It is not paid as a grace or bounty. It is not denied that the respondents have taken work from the petitioner till he superannuated from service. Though the right to withhold pension in case of pendency of judicial proceeding does exist with the respondents but the same has to be exercised judiciously and not arbitrarily. Since in the present case the respondents have taken work from the petitioner till he superannuated from service, meaning thereby that they had chosen to ignore the sentence on the ground that the same had been suspended by the interim order granted in appeal, they ought not to have resorted to withholding the pension of the petitioner as even though they may have a right to do so under Regulation 351-AA, as the facts of this case do not justify withholding of the pension of the petitioner, and that too without passing any formal order in this regard. As such, [the action of the respondents in withholding the pension of the petitioner and paying him only provisional pension under Regulation 919-A is not justified.
7. For the foregoing reasons, this writ petition stands allowed. It is directed that the petitioner shall be paid his pension regularly month by month. The arrears of pension and other retiral benefits shall be paid to the petitioner within three months from today. No costs.