Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dhirendra Kumar Dubey on 13 September, 2023
Author: Rohit Arya
Bench: Rohit Arya, Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 13th OF SEPTEMBER, 2023
WRIT APPEAL No. 1293 of 2021
BETWEEN:-
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. PRINCIPAL SECRETARY, GENERAL OF
ADMINISTRATION DEPARTMENT
MANTRALAYA, VILLABH BHAWAN
BHOPAL (MADHYA PRADESH)
3. THE ADDITIONAL SECRETARY
DEPARTMENT OF REVENUE VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
........APPELLANTS
(BY SHRI ANKUR MODY- ADDITIONAL ADVOCATE GENERAL)
AND
DHIRENDRA KUMAR DUBEY
S/D/W/THRU:- SHRI RAMSWAROOP
DUBEY, OCCUPATION: EX SERVICEMEN
43 NEW DUSYANT NAGAR THATIPUR
GWALIOR (MADHYA PRADESH)
........RESPONDENT
(BY SHRI ANIL MISHRA WITH MS. HARSHITA MISHRA -
ADVOCATES)
2
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This appeal coming on for admission this day, Justice Rohit Arya passed the
following:
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ORDER
This appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 by the State is directed against the order dated 08.10.2021 passed in W.P. No.823/2016.
2. Before adverting to the impugned order and submissions canvassed by learned counsel for parties, it is expedient to reiterate the relevant facts necessary for disposal of the instant appeal.
(i) The respondent while in service as Naib Tehsildar and posted at Dhar, was subjected to criminal proceedings by way of trial on charges framed under sections 7, 13(1)(d), 13(2) of The Prevention of Corruption Act, 1988 read with Section 120B of IPC. The trial culminated into conviction of respondent and sentence of 1 year R.I. with fine of Rs.1,000/- vide judgment dated 27/05/2015.
(ii) The respondent reached the age of superannuation i.e. 60 years on 31/10/2015. An order dated 10/02/2015 has been passed superannuating the respondent from service w.e.f. 31/10/2015.
(iii) The respondent was visited with the penalty of dismissal vide order dated 17/12/2015 as a consequence of conviction and sentence in the aforementioned judgment dated 27/5/2015.
The respondent challenged the legality, validity and propriety of the impugned order of dismissal vide WP No.823/2016 before learned Single Judge. Counter affidavit was 3 filed by the State. The learned single Judge ruled that once the government servant had stood superannuated with the order of retirement, the employer-employee relationship ceased to exist. Under such circumstances, the prescribed penalty of dismissal under Rule 10 of The Madhya Pradesh Civil Services (Classification, Control And Appeal) Rules, 1966 (for short "the Rules of 1966") could not have been imposed upon the respondent. In other words, the prescribed penalty under Rule 10 of the Rules of 1966 could only be imposed upon existing government servant and not upon a superannuated government servant. Consequently, the writ petition has been allowed quashing the impugned order of termination. As a consequence, learned Single Judge has ordered for payment of retiral dues including pension and gratuity to the respondent in accordance with The Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter referred to as the "Pension Rules").
3. The State Government has preferred the instant intra Court appeal questioning sustainability of the impugned order of learned Single Judge.
During pendency of the appeal, the appellants/State has filed additional documents vide I.A. No.1350/2023 placing on record the order dated 29/09/2020 purportedly passed under Rule 9 of the Pension Rules to withhold full pension of the respondent. Besides, vide I.A. No.8350/2023, another application has been filed for taking additional documents on record whereunder the order of termination and extract of rules of business as well as some internal note-sheets have been placed on record.
4Shri Ankur Mody, learned counsel for appellants contends that learned single Judge failed to appreciate that under Rule 19 of the Rules of 1966, the disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge notwithstanding anything contained in Rules 14 to 18. In other words, according to the learned counsel if a Government servant suffers penalty due to his conviction on criminal charge, the Disciplinary Authority without holding regular departmental enquiry, upon consideration of circumstances of the case may make an order as it deems fit, albeit, the Public Service Commission is consulted where necessary while order is made under the said rules. Further, elaborating his submission, Shri Modi submits that as the respondent stood convicted and sentenced in criminal trial vide judgment dated 27/05/2015, irrespective of the fact of superannuation ordered on 31/10/2015 the penalty of dismissal has rightly been imposed upon him vide order dated 17/12/2015. Learned counsel also tried to justify imposition of penalty of dismissal after superannuation with the help of the provision of Rule 9(2) of the Pension Rules. Accordingly to him, departmental proceedings for dismissal of service of respondent were initiated in the form of deliberations and consultations prior to the age of superannuation of respondent and finalized in the form of dismissal of respondent vide order 17/12/2015. Such proceedings are protected and deemed to have been continued against a retired Government servant as if he was in service under Rule 9(2) of the Pension Rules.
Therefore, once the respondent suffered order of dismissal from 5 service, the same entails forfeiture of his past service. As a necessary corollary, he shall not be entitled to pension or pensionary dues including death-cum-retirement gratuity payable under sub-rule (1) of Rule 44 of the Pension Rules. Learned counsel relied upon the judgment of Hon'ble Supreme Court in Chairman-Cum-Managing Director, Mahanadi Coalfields Limited Vs. Rabindranath Choubey (2020) 18 SCC 71 to buttress his submissions.
4. Per contra, Shri Anil Mishra, with Ms. Harshita Mishra, learned counsel submitted that no exception may be taken to the impugned order of learned Single Judge for the following reasons:-
(i) Undisputedly, the respondent stood superannuated w.e.f.
31/10/2015 as notified to him vide communication dated 10/02/2015 (Annexure P/5). The respondent ceased to be a Government servant and there was cessation of employer-employee relationship between the Government and the respondent. Rule 3 of the Rules of 1966 contemplates application of rules and inter alia provides that these rules shall apply to every Government servant and 'Government servant' as defined under Rule 2(f) of the said Rules which is quoted below.
"2 (f) 'Government servant' means a person who -
(i) is a member of a Service or holds a civil post under the State, and includes any such person on foreign service or whose services are temporarily placed at the disposal of the Union Government, or any other State Government or a local or other authority;
(ii) is a member of a service or holds a civil post under the Government of India or any other State Government and whose services are temporarily placed at the disposal of the State Government;6
(iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the State Government."
Upon a bare reading of the aforesaid definition of 'Government servant', the status of respondent, by no stretch of imagination, can be construed to be that of a Government servant. Therefore, the provision of the Rules of 1966 could not have been made applicable in the case of respondent. As a result, the penalty of dismissal as prescribed under Rule 10 of the Rules of 1966 neither could have been imposed upon the respondent nor help of Rule 19 thereof could have been taken as a source of authority for imposition of penalty of dismissal of the respondent. Learned counsel also submits that argument of Shri Mody, learned Additional Advocate General that departmental proceedings initiated by way of deliberations and consultations for dismissal of his services prior to superannuation of respondent shall be deemed to be proceedings as if respondent was in service even after his retirement under Rule 9(2) of the Pension Rules is an argument in despair and more of frustration than of substance. Learned counsel submits that an order passed under Rule 19 of the Rules of 1966, could not be justified with the aid of Rule 9(2) of the Pension Rules. Further elaborating his submission, Shri Mishra, submits that Rule 9(2) of the Pension Rules is a part of Rule 9 thereof. Rule 9 confers right on the Governor of State to withhold or withdraw the pension and provides as under:----
"9. Right of Governor to withhold or withdraw pension. -
(1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or 7 judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:
Provided that the State Public Service Commission shall be consulted before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time];
(2) (a) The departmental proceedings, if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.
xxxxxx"
(Emphasis supplied) A bare perusal of sub-rule (1) suggests that the Governor may withhold or withdraw pension or part thereof whether permanently or for a prescribed period and also order for recovery from pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement. However, the power under sub-rule (1) can be exercised only after 8 consultation with Public Service Commission. Sub-rule (2) of Rule 9 is in conjunction with Rule 9 (1) which contemplates that departmental proceeding if instituted while the Government servant was in service whether before retirement or during his re-employment, shall, after his final retirement be deemed to be proceeding under this Rule (Rule 9) and shall be continued and conducted by the same authority which commenced it in the same manner as a Government servant continued to be in service. By way of proviso it has been further clarified that if departmental proceedings were instituted by the Authority subordinate to the Governor, the Authority shall submit a report regarding its findings to the Governor. In other words, the Governor has right to withhold or withdraw the pension as provided for under sub-rule (1) even in relation to such pensioners against whom departmental proceedings were instituted prior to their retirement or re-employment and continued after final retirement on the basis of findings recorded in such departmental proceedings. Sub-rule (2) of Rule 9 of the Pension Rules does not validate the proceedings under Rule 19 of the Rules of 1966.
(ii) Further, through I.A. No.1350/2023, the appellants have sought to bring on record the order of withholding of pension under Rule 9 of the Pension Rules vide order dated 29/09/2020, learned counsel submits that neither in the application nor amongst the annexed documents, there is a whisper or evidence as regards consultation with the Public Service Commission prior to the issuance of order under Rule 9 of the Pension Rules. It is ex facie an afterthought that too illegal having been passed at a distance of time of more than 5 years.
Even otherwise, this document was never brought on record 9 before the learned Single Judge. There is nothing on record that the report of departmental proceedings was placed before the Governor for consideration and thereafter the Governor has passed the order based thereupon. On the contrary, the said order is passed purportedly in the name of Governor based upon the decision of the Cabinet. The said order is in violation of the mandatory requirement of Rule 9 of the Pension Rules. With the aforesaid submissions, learned counsel prays that no illegality can be attached to the impugned order. Hence, WA deserves to be dismissed.
5. Heard, learned counsel for the parties.
6. The moot questions that arise for consideration before this Court are :
(i) Whether after his retirement on 31/10/2015, the respondent could have been visited with the penalty of dismissal from service vide subsequent order dated 17/12/2015 finding him guilty of misconduct under sub-rules (1) and (3) of Rule 3 of the Rules of 1966 owing to his conviction under sections 7, 13(1)(d) and 13(2) of the Act of 1988 and 120B of the IPC recorded vide judgment dated 27/5/2015?
(ii) Whether in absence of effective compliance of proviso appended to Rule 9 of the Pension Rules with regard to consultation with the State Public Commission, the appellants/State was justified in withholding respondent's pension permanently by way of order dated 29/09/2020 annexed as A/3 filed along with I.A. No.1350/23?
7. Admittedly, respondent stood superannuated with effect from 31/10/2015. As per Rule 3(1) of the Rules of 1966, the application of those Rules is limited to Government servants with exclusions enlisted in clauses (a) to (d) thereof. Further, as defined in Rule 2(f) quoted 10 above, Government Servant means a person who - (i) is a member of Service or holds a Civil Post under the State including those on foreign service or whose services are temporarily placed at the disposal of the Union Government,or any other State Government or a local or other authority; (ii) is a member of a service or holds a civil post under the Government of India or any other State Government and whose services are temporarily placed at the disposal of the State Government; and (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the State Government. After his superannuation, the respondent cannot be deemed to fall within the definition of Government Servant and for that matter the learned Single Judge was right in holding that master and servant relationship ceased to exist on the date of superannuation of the respondent. As such, this Court finds substantial force in the submissions advanced by learned counsel for the appellants in that behalf and, in the opinion of this Court, the appellants/State was completely misdirected in imposing penalty prescribed under Rule 10 of the Rules of 1966 upon the respondent purportedly under the provision of Rule 19 thereof. In this behalf, learned counsel for the appellants/State sought to justify the said order relying upon the judgment of Hon'ble Supreme Court in the case of Mahanadi Coalfields Ltd. (Supra). However, the said case is starkly distinguishable on facts, as well as, in law. The factual matrix and the subject matter involved in the said case revolve around Conduct, Discipline & Appeal Rules, 1978 framed by Mahandi Coalfields Ltd wherein Rule 34.2 provided deemed continuation of disciplinary proceedings initiated while in service, post retirement as well. However, there is no such corresponding Rule in the Rules of 11 1966. Therefore, reliance on the said precedent is misplaced and is of no avail to the appellants.
8. Now, adverting to the order dated 29/9/2020 filed along with I.A. No.1350/2023, whereby the pension of the respondent has been permanently withheld under Rule 9 of the Pension Rules pursuant to the decision taken by the Cabinet.
Rule 9(1) of the Pension Rules, as quoted above, deals with the Right of Governor to withhold or withdraw pension and vests the right in the Governor to withhold or withdraw a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The said Rule comes with a proviso that the State Public Service Commission shall be consulted before any final orders are passed. The use of the word "shall" makes the proviso mandatory and the same cannot be deemed to be directory in nature. However, there is nothing on record to suggest that before passing such order of permanently withholding respondent's pension, the State Public Service Commission was ever consulted. Further, there is nothing on record that the report of the departmental proceedings was tabled before the Governor for consideration, based whereupon the said order has been passed. In fact, the said order has been passed in the name of the Governor based on the decision of the Cabinet. As such, we hasten to say that the said order does not withstand the scrutiny of law and, therefore, cannot be sustained. Moreover, Rule 9(1) of the Pension Rules, as indicated above, empowers the Governor to withhold or 12 withdraw pension of a retired employee if during the tenure of his service he was found to have been guilty of grave misconduct or negligence in any departmental or judicial proceeding. Rule 9(2) extends the power, authority and jurisdiction of the Governor to exercise similar powers in the matter of withholding or withdrawing pension in terms of Rule 9(1) even in a case where enquiry though started during tenure of a Government servant continues after his retirement or re-employment. The said Rule can only be read in the context of Governor's right to withdraw or withhold pension under the Pension Rules and cannot be taken umbrage of for imposing penalty under the Rules of 1966 and, therefore, the contention of learned Additional Advocate General in that behalf cannot be countenanced.
9. In view of the aforesaid and for the foregoing reasons, the questions formulated above are answered in the negative. The instant appeal fails and is, accordingly, dismissed. Further, the order dated 29/9/2020 (Annexure A/3) is also set aside.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
JUDGE JUDGE
ojha/and
ANAND
SHRIVASTAVA
2023.09.15
14:53:45
+05'30'