Madhya Pradesh High Court
Sudhir Kumar Hundet vs Madhya Pradesh Madhya Kshetra Vidyut ... on 3 January, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SMT. JUSTICE RAJ MOHAN SINGH
ON THE 3rd OF JANUARY, 2024
WRIT PETITION NO.20198 OF 2020
BETWEEN:-
SUDHIR KUMAR HUNDET S/O LATE SHRI
HARISHANKAR HUNDET, AGED ABOUT 63 YEARS,
OCCUPATION- RETD. GOVERNMENT SERVANT R/O
C-3, NIKHIL BUNGLOW, PHASE-III, HOSHANGABAD
ROAD, BHOPAL DISTRICT BHOPAL (MP)
....PETITIONER
(BY SHRI HEMANT KUMAR SHRIVASTAVA- SR.
ADVOCATE WITH MS. VARIDHI PATHAK-ADVOCATE)
AND
1. MADHYA PRADESH MADHYA KSHETRA VIDYUT
VITARAN COMPANY LIMITED THROUGH ITS
MANAGING DIRECTOR, REGISTERED OFFICE-
NISHTHA PARISHAR, GOVINDPURA BHOPAL
(MP)
2. CHIEF GENERAL MANAGER, MADHYA
PRADESH MADHYA KSHETRA VIDYUT VITRAN
Signature Not Verified
Signed by: MANZOOR
AHMED
Signing time: 1/3/2024
5:24:41 PM
2
COMPANY LIMITED, REGISTERED OFFICE-
NISHTHA PARISAR, GOVINDPURA (MP)
3. STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT OF ENERGY, GOVT. OF MADHYA
PRADESH, VB-2, VALLABH BHAWAN, ANNEX,
MANTRALAYA BHOPAL (MP)
....RESPONDENTS
(BY SHRI SIDDHARTH SHARMA-ADVOCATE)
Reserved on : 29-11-2023.
Pronounced on : 03-01-2024.
ORDER
The petitioner has assailed the order dated 15.10.2019 (Annexure P-1) passed by the respondent No.2 vide which the pension of the petitioner has been withheld/forfeited on the ground of his conviction in a corruption case.
2. The petitioner is a retired employee of the Madhya Pradesh Madhya Kshetra Vidyut Vitaran Company Ltd. (hereinafter referred to as "MPMKVVCL"), which is an undertaking of the Department of Energy, Government of Madhya Pradesh. During the pendency of the criminal case, the petitioner was suspended vide Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 3 order dated 26.09.2015 passed by the respondent No.2. On 30.08.2017, the respondent No.2 directed the concerned authority to provide provisional pension to the petitioner under Rule 64 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter referred to as 'Rules, 1976"). On conviction of the petitioner, the provisional pension was stopped and the pension was forfeited. The petitioner has superannuated on 30.06.2017 and the conviction in criminal case came to be recorded vide judgment dated 31.08.2019. With the forfeiture of the pension, the respondents No.1 and 2 have not paid any gratuity amount to the petitioner. Against the judgment of conviction by the Special Judge under Prevention of Corruption Act dated 31.08.2019, the petitioner has preferred a Criminal Appeal No.7505/2019 before the High Court of Madhya Pradesh, Principal Seat at Jabalpur. In the aforesaid criminal appeal, the sentence of the petitioner has been suspended vide order dated 3.10.2019 during pendency of the appeal.
3. Learned counsel for the petitioner has submitted that the criminal appeal is a statutory right of the petitioner under the Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 4 Code of Criminal Procedure, 1973, and therefore criminal appeal is in continuation of judicial proceedings held before the Court of Sessions, therefore for all intents and purposes, it has to be treated as a pending judicial proceeding in relation to the charges levelled against the petitioner under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity "PC Act, 1988"), and therefore the petitioner is entitled to pension under Rule 64 of the Rules, 1976. Vide the impugned order dated 15.10.2019 passed by the respondent No.2, it has been directed to withhold the pension of the petitioner under Rule 8(1)(b) of the Rules, 1976 on the basis of his conviction under the PC Act, 1988. On the basis of aforesaid conviction recorded by the Special Judge under the PC Act, 1988 on 31.8.2019, the respondent No.2/Chief General Manager has been directed to withhold the provisional pension provided to the petitioner vide order dated 30.08.2017. The impugned order dated 15.10.2019 has been assailed on the strength of Rule 64 and wrong application of Rule 8(1)(b) of the Rules, Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 5 1976. For ready reference, Rules 8 and 9 of the Rules, 1976 are hereby reproduced as under:-
"8. Pension subject to future good conduct. - (1)
(a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
(b) The pension sanctioning authority may, by order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:
Provided that no such order shall be passed by an authority subordinate to the authority competent at the time of retirement of the pensioner, to make an appointment to the post held by him immediately before his retirement from service:
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) Where a pensioner is convicted of a serious crime by a Court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgement of the Court relating to such conviction.Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 6
(3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1):-
(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal; and
(b) take into consideration the representation, if any, submitted by the pensioner under clause (a).
(4) Where the authority competent to pass an order under sub-rule (1) is the Governor, the State Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-rule (1);
passed by any authority other than the Governor, shall lie to the Governor and the Governor shall in consultation with the State Public Service Commission pass such order on the appeal as he deems fit.
Explanation. - In this rule.-
Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 7
(a) the expression "serious crime" includes a crime involving an offence under the Official Secrets Act 1923 (No. 19 of 1923);
(b) the expression "grave misconduct"
includes the communication or disclosure of any secret official code or pass word or any sketch, plan, model, article, note, document or information such as is mentioned in Section 5 of the Official Secrets Act, while holding office under the government so as to prejudicially affect the interests of the general public, or the security of the country.
[Note.- The Provisions of this rule shall also be applicable to family pension payable under Rules 47 and 48. The authority competent to make an appointment to the post held by the deceased Government servant/ pensioner immediately before the death or retirement from the service, as the case may be, shall be the competent authority to withhold or withdraw any part of family pension.]
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 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:Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 8
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 [xxx], 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.
(b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment:-
(i) shall not be instituted save with the sanction of the Governor;Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 9
(ii) shall not be in respect of any event which took place more than four years before such institution; and [(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings:
(a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or
(b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government].
(3) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 10 judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-
cum-retirement gratuity as provided in [Rule 64], as the case may be, shall be sanctioned:
[Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than [the minimum pension as determined by the Government from time to time]:
Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned," had been substituted: Provided also that-
(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;
(b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 11 withheld shall stand restored on the expiration of the aforesaid period of two years; and
(c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount, of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of Rule 43].
(5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 12
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."
4. Learned counsel for the petitioner vehemently contended that Rule 8(1)(b) of the Rules, 1976 has been wrongly applied. Rule 8 of the Rules, 1976 relates to pension subject to future good conduct. In order to apply Rule 8 of the Rules, 1976 nothing should be pending. Under Rule 9 of the aforesaid Rules, 1976, the Governor is an appropriate authority, who reserves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, if in any departmental or 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. Under 9(4) of the Rules, 1976, the Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in Rule 64, shall be sanctioned. Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 13
5. With reference to the aforesaid rules, learned counsel for the petitioner vehemently submitted that the Rules 8 and 9 of the Rules, 1976 are operating in different fields. During the pendency of the judicial proceedings, the petitioner shall be treated on deemed extension as Government servant till appeal is pending, and therefore on the strength of Rules 9(4) and 64 of the Rules, 1976, he is entitled for provisional pension and no such forfeiture of pension can be ordered under Rule 8 of the Rules, 1976. Rule 64 (c) of the Rules, 1976, damage/penalty, if any ordered in judicial proceeding, is to be deducted and no interest is to be paid in view of the amendment in Rule 64 and the said aspect is subject to the discretion of the Court. No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. Learned counsel for the petitioner with reference to the facts on record submitted that Rule 9 of the aforesaid Rules ought to have been applied in the instant case, as at the time of superannuation of the petitioner, the judicial proceeding/criminal trial was pending and conviction was Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 14 recorded only after the superannuation of the petitioner on 31.8.2019, therefore the competent authority was the Governor to pass any order in consonance with the requirement of Rule 9 of the Rules, 1976.
6. Per contra, learned counsel for the respondents submitted that at the time of retirement of the petitioner, the petitioner was facing a criminal trial for the offences under the PC Act, 1988. The petitioner has been convicted after his retirement. Rule 8(1)(b) of the Rules, 1976 is very clear that the pension sanctioning authority may by an order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Rule 9 of the Rules, 1976 can be pressed into service for withholding or withdrawing the pension when the Government servant has caused any pecuniary loss to the Government or an order for recovery can be passed in the departmental or judicial proceeding when the petitioner is found guilty of grave misconduct or negligence during the period of his Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 15 service, including service rendered upon re-employment after retirement. Rule 9 of the aforesaid Rules makes it abundantly clear that the power can be exercised when misconduct is proved during the departmental or judicial proceeding causing pecuniary loss to the Government and such order of recovery from the pension can be ordered by the Governor, withholding the pension wholly or partly. In the instant case, Rule 8 of the Rules, 1976 would be applicable, which clearly deals with the situation when the pensioner is convicted of a serious crime by a Court of competent jurisdiction, therefore, the pension can be withheld or withdrawn permanently or for a specified period. The aforesaid Rule also provides that future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
7. It is a settled principle of law that even if a wrong provision is quoted by an authority, exercising the powers for which the authority is competent, the order is not vitiated on account of wrong mentioning of the provision on the strength of ratio of Kedar Shashikant Deshpande and others Vs. Bhor Municipal Council Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 16 and others, (2011) 2 SCC 654 and N. Mani Vs. Sangeetha Theatre and others, (2004) 12 SCC 278.
8. The larger Bench of this Court in Writ Petition No.16549/2016 (Lal Saheb Bairagi Vs. State of M.P and others) has held that after conviction of the pensioner, if the competent authority withholds or withdraws the pension wholly or in part thereof, no prior notice is required to be issued. The observations made by the Larger Bench while dealing with Rule 8 of the aforesaid Rules are to be effect that it is a settled principle of law that the payment of pension to a pensioner is regulated by the provisions of the Madhya Pradesh Civil Services (Pension) Rules, 1976 and the same has been made statutorily subject to future good conduct of the pensioner.
9. From perusal of the Rule 8 of the Rules, 1976 as reproduced in the preceding part of the order, it is clear that the pension sanctioning authority may by an order in writing withhold or withdraw a pension or part thereof, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. The Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 17 pension can be withheld or withdrawn permanently or for a specified period. Rule 8(2) of the Rules, 1976 deals with the cases of pensioner, who has been convicted in a criminal case, while Rule 8(3) of the Rules, 1976 deals with the cases of pensioner found guilty of grave misconduct. From perusal of the provisions of Rule 8(3) of the Rules, 1976, it is clear that the said provision prescribes that where an authority considers a pensioner prima facie guilty of grave misconduct, it shall, before passing an order under sub-rule (1) of Rule 8 of the Rules, 1976, serve upon the pensioner a notice specifying the action proposed to be taken against him, and the ground on which the action is proposed to be taken, call upon him to submit a representation within fifteen days or any further time that is extended by the authority, take into consideration the representation filed by the pensioner and thereafter pass an order.
10. It is, however, apparent from a bare perusal of the first few words of Rule 8(3) of the Rules, 1976 that the aforesaid procedure prescribed for passing order against the pensioner in case where he is prima facie guilty of grave misconduct, has no Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 18 applicability to the case falling under Rule 8(2) of the Rules, 1976, which deals with the action to be taken against a pensioner convicted by a criminal Court of competent jurisdiction. The provisions of Rule 8(3) of the Rules, 1976 shall apply only to those cases, which do not fall under sub-rule (2) of Rule 8 of the Rules, which makes it clear that the category of cases under Rule 8(2) of the Rules, 1976 is that where the action has been taken in the light of the judgment of the Criminal Court in which the pensioner is convicted of a serious offence by a Criminal Court of competent jurisdiction and while taking such an action, the procedure prescribed under Rule 8(3) of the Rules of 1976, would not apply as the same has been expressly excluded by the opening words of Rule 8(3) of the Rules of 1976. Rule 8(2) of the Rules of 1976, does not contemplate giving of an opportunity of hearing when the pension is withheld or withdrawn on account of conviction in a serious offence.
11. The interpretation of the Rules is apparent. A bare perusal and reading thereof would indicate that the language of Rule Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 19 8(3) of the Rules of 1976 is simple and unambiguous and it leads to no other interpretation or conclusion. In view of the clear and unambiguous language used in the provisions of Rule 8(3) of the Rules of 1976, which incidentally was neither considered nor brought to the notice of the Full Bench in the case of Ram Sewak Mishra Vs. State of M.P. and another. The principles of natural justice cannot be read into Rule 8(2) of the Rules of 1976, as they are statutorily and expressly excluded by the opening words of Rule 8(3) of the Rules of 1976.
12. The ratio of the larger Bench in Lal Saheb Bairagi's case (supra) has been summed up in paragraphs No.10 to 18. For ready reference, the aforesaid paragraphs are reproduced here as under:-
"10. A perusal of Rule 8 of the Rules of 1976, makes it further clear that the category of cases that fall under Rule 8(2) of the Rules of 1976, are those cases in which action has been taken in the light of the judgment of the Court where the pensioner is convicted of a serious crime by a Court of law and that while taking such action, the elaborate procedure prescribed under Rule 8(3) of the Rules of 1976, would not apply as the same has been expressly excluded by the opening Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 20 words of Rule 8(3) of the Rules of 1976. Rule 8(2) of the Rules of 1976, does not contemplate giving of an opportunity of hearing when the pension is withheld or withdrawn on account of conviction of a serious crime.
11. The aforesaid aspect and interpretation of the Rules is apparent from a bare perusal and reading of the Rules. The language of Rule 8(3) of the Rules of 1976, is simple, unambiguous and clear and leads to no other interpretation, meaning or conclusion.
12. In view of the clear and unambiguous language of the provisions of Rule 8(3) of the Rules of 1976, which incidentally was neither considered nor brought to the notice of the Full Bench in the case of Ram Sewak Mishra vs. State of M.P. and another (supra), it is held that the principles of natural justice cannot be read into Rule 8(2) of the Rules of 1976, as they are statutorily and expressly excluded by the opening words of Rule 8(3) of the Rules of 1976.
13. The principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma. The principles of natural justice are not incapable of exclusion in a given situation. For example, Article 311(2) of the Constitution, which essentially embodies the concept of natural justice, itself contemplates that there may be situations which warrant or permit the non- applicability of the principles underlying Article 311(2) of the Constitution. Reference may be made to the second proviso to Article 311 of the Constitution. The Supreme Court in Union of Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 21 India vs Tulsiram Patel AIR 1985 SC 1416 = (1985)3 SCC 398 had in terms of Art 311 ruled that not only, can the principles of natural justice be modified but in exceptional cases they can even be excluded.
14. The Rule 8(2) enables the authority to exercise power under Rule 8(1)(b) upon conviction of serious crime in the light of the Judgment of the criminal court. While doing so, it must consider whether his conduct which has led to his conviction was such as warrants the withholding/withdrawing of pension. For that purpose it will have to peruse then judgment of the criminal court and consider all the facts and circumstances of the case. This, however, has to be done by it ex parte and by itself and without hearing the concerned pensioner reason of the exclusionary effect of the starting words of Rule 8(3) upon exercise of powers under Rule 8(2) of the 1976 Rules.
15. In view of the law laid down by the Supreme Court in the case of Tulsiram (supra), which is fully applicable to the present case as well, the authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail withdrawal or withholding of pension. This can be done in the light of the judgment of the Court relating to such conviction.
No direction for taking action in the judgment of the criminal Court is necessary or required for taking action under Rule 8(2) of the Rules of 1976. This authoritative judgment of the Supreme Court was completely overlooked by the learned Single Bench while deciding Dau Ram Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 22 Maheshwar case(supra) on the basis of decision of Chhatisgarh High Court. The majority view in Ram Sewak Mishra(supra) wrongly did not apply the decision of Tulsi Ram Patel (supra) to the Rules of 1976. On the other hand the earlier Full Bench in Laxmi Narayan Hayaran v. State of M.P. reported in 2004(4) MPLJ 555 after considering the relevant case law including Tulsi Ram Patel (supra), correctly held that no prior hearing is required before passing an order under Rule 8(2) of 1976 Rules consequent upon conviction.
16. The upshot of the whole discussion is that the decision of the Single Bench as well as the Full Bench in Ram Sewak v. State of M.P.(supra) does not lay down the correct law, while the earlier Full Bench decision in Laxmi Narayan Hayaran v. State of M.P. (supra) lays down the correct law.
17. The answer to the questions referred to this Larger Bench is given accordingly by clearly stating that:-
(i) The principles of natural justice are specifically and expressly excluded and have no application to the cases falling under Rule 8(2) of 1976 Rules in view of the opening words of Rule 8(3) of the Rules of 1976, therefore, when an action is taken against the pensioner under Rule 8(2) of the Rules of 1976, no notice is required to be issued to the pensioner nor can he insists upon prior opportunity of representation on the strength of the principles of Natural Justice.
(ii) The decision of the Full Bench in the case of Ram Sewak Mishra (supra) and the decision in the Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 23 case of Dau Ram Maheshwar (supra) are hereby over- ruled.
(iii) It is held that the authority is not required to issue notice or afford prior opportunity of representation before passing the order under Rule 8(2) of the Pension Rules of 1976, in respect of a pensioner who has been convicted in the criminal cases. However, the power of the authority to take action under the Rules would be subject to the guidelines as stated by the Supreme Court in the case of Tulsiram Patel (supra) and reiterated by this Bench in the preceding paragraphs of this judgment.
18. The Reference made to the Larger Bench is answered accordingly. The petition may now be placed before the appropriate Bench as per Rules and Roster, for further orders."
13. The Division Bench of this Court in the case of Gyaneshwar Choudhary and others Vs. State of Madhya Pradesh and others (Writ Appeal No.1710/2022 decided on 05/01/2023) has also observed that on conviction of a pensioner, he is not entitled to get pension and if order is passed by the authority under Rule 8 of the Rules 1976 withdrawing pension, the same cannot be faulted with. The Division Bench has also taken note of Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 24 the view expressed by the larger Bench in Lal Saheb Bairagi's case (supra).
14. The Hon'ble Apex Court in Civil Appeal Nos.7437- 7438 of 2021 (The Secretary Local Self Government Department and others etc. Vs. K. Chandaran Etc.) has held that after conviction, the employee is not entitled to claim pension though his/her criminal appeal against the conviction is pending before the Court of law. In 2002 (5) MPHT 11 (Ram Ratan Tiwari Vs. State of MP and others), WP No.18341/2023 (Badelal Pathak Vs. State of MP and others, decided on 5.9.2023) and WP No.17664/2022 (Rama Shankar Tiwari Vs. State of MP and others, decided on 7.12.2023), it has been held that the criminal appeal is not a continuation of criminal trial. When a person is convicted for the offence under the PC Act, then stay of conviction cannot be granted in a routine manner. When there is no stay of conviction, then disqualifications attached to the conviction must follow. In the instant case the conviction of the petitioner has not been stayed, and only sentence part of order has been stayed and the Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 25 petitioner will remain a convicted person until and unless his conviction is set aside in the pending appeal in accordance with law.
15. From bare perusal of Rule 64 of the Rules, 1976, it is clear that the provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the competent authority during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. If the pensioner is found to have been convicted and sentenced for a serious offence, then the pension can be forfeited after stopping the payment of provisional pension. Thus it is clear from Rule 64(1)(b) of the Rules, 1976 that the aforesaid provision is applicable only when the trial is pending, where an element of innocence is attached to the accused. Once the trial is concluded or resulted in conviction of the accused/pensioner, then merely because an appeal against such conviction is pending where conviction has not been stayed, it cannot be said that the judicial proceedings have not come to an end Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 26 for the simple reason that the pensioner has to face the disqualification attached to the conviction.
16. So far as non-payment of gratuity is concerned, Section 4(6) of the Payment of Gratuity Act, 1972 can be appreciated, which prescribes that notwithstanding anything contained in sub-Section (1), the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. The gratuity payable to an employee may be wholly or partially forfeited, if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
17. In case of termination/dismissal of service of an employee on account of conviction in a criminal trial, conduct Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 27 leading to conviction has to be seen. It is not necessary to terminate or dismiss the employee in every case where he or she has been convicted in a criminal case, but if an employee/pensioner is convicted for an offence involves moral turpitude, defect in character and the accusation had embarrassed him/her in discharge of public duty, then he or she has to be terminated or dismissed, thereby forfeiting pension and gratuity. It is only the conduct leading to conviction has to be adhered to while dismissing the employee.
18. The assertions made by the learned counsel for the petitioner on the basis of judgment of the Hon'ble Supreme Court in the case of Shribhagwati Prasad Tiwari Vs. Union of India and others, reported in 2004 SCC Online MP 760, are not applicable to the present case. On conviction in a corruption case, the petitioner is found to have committed grave misconduct, which involves moral turpitude and defect in character and in such like situation even Article 311(2) of the Constitution of India could have been resorted to.
Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM 28
19. For the reasons recorded hereinabove, I do not find any merit in the instant writ petition. The writ petition is accordingly dismissed with no order as to costs. If the petitioner is ultimately acquitted in the pending criminal appeal, thereafter he may seek his legal remedy in accordance with law. If the amount under the head of GIS, GPF and Leave Encashment has not been paid to the petitioner, then the petitioner may approach the competent authority for redressal of his grievance, as these components would remain unfettered and would not be forfeited except the pension and gratuity.
(Raj Mohan Singh) Judge 03/01/2024 Ansari Signature Not Verified Signed by: MANZOOR AHMED Signing time: 1/3/2024 5:24:41 PM