Madhya Pradesh High Court
Santosh Kumar Seetha vs The State Of Madhya Pradesh on 22 April, 2022
Author: Ravi Malimath
Bench: Ravi Malimath
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE PURUSHAINDRA KUMAR KAURAV
ON THE 22nd OF APRIL, 2022
WRIT APPEAL NO. 803 OF 2017
Between:-
SANTOSH KUMAR SEETHA S/O SHRI BRIJ
MOHAN SEETHA, AGED ABOUT 68 YEARS,
RETIRED GANAK, GOVERNMENT BOYS
HIGHER SECONDARY SCHOOL NO.1,
SEHORE, RESIDENT OF NARAYAN DAS
COMPOUND, CANTT, DISTRICT SEHORE
.....APPELLANT
(BY SHRI SANJEEV KUMAR SINGH - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH,
THROUGH ITS PRINCIPAL SECRETARY,
DEPARTMENT OF SCHOOL EDUCATION,
MANTRALAYA, BHOPAL (M.P.)
2. THE COMMISSIONER, DIRECTORATE OF
PUBLIC INSTRUCTION, GAUTAM NAGAR,
BHOPAL (M.P.)
3. THE DISTRICT EDUCATION OFFICER,
SEHORE DISTRICT SEHORE (M.P.)
4. THE DISTRICT TREASURY OFFICER,
SEHORE DISTRICT SEHORE (M.P.)
....RESPONDENTS
(BY SHRI S.S. CHOUHAN - GOVERNMENT ADVOCATE)
2
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This appeal coming on for admission this day, Hon'ble Shri Justice
Purushaindra Kumar Kaurav, passed the following:
ORDER
This intra Court appeal is filed being aggrieved by the order dated 01.09.2015 (Annexure-A-1) passed by the learned Single Judge dismissing the Writ Petition No.14026 of 2015(s) filed by the appellant herein.
2. The facts of the case are that the appellant was working as Cashier in Government Boys Higher Secondary School No.1, Sehore. He was convicted and sentenced for various offences under Prevention of Corruption Act, 1988 and IPC vide judgment of conviction and sentence dated 29.07.2011 in Special Case No.04 of 2005 (State of M.P. vs. Vinod Kumar Parihar and others) by Special Court Prevention of Corruption Act, Sehore. The maximum sentence was of two years and fine was also imposed as mentioned in paragraph 33 of the judgment of conviction and sentence. The appellant was one of the accused and the other accused were also convicted and sentenced by the same judgment.
3. Upon his conviction and sentence, the State Government vide order dated 26.05.2011 in exercise of power vested under Rule 9 of M.P. Civil Services (Pension) Rules 1976 (hereinafter referred to as "the Rules of 1976") withheld the pension of the appellant on account of his conviction and sentence.
4. The appellant challenged the order of withholding of pension before the learned Single Judge. The learned Single Judge did not find any substance in the writ petition and, therefore, the same has been dismissed. The appellant is, therefore, in the present intra court appeal.
35. The learned counsel appearing for the appellant submits that the sentence of the appellant has already been suspended by this Court vide order dated 24.08.2011 in Criminal Appeal No.1867 of 2011 and his appeal is still pending. He further submits that the impugned order could not have been passed by under Secretary as in accordance with the Rules of 1976, only Governor is empowered to take a decision and lastly, his submission is that without extending an opportunity of hearing, order of withholding full pension of the appellant could not have been taken. He places reliance Full Bench decision of this Court in the matter of Ram Sewak Mishra vs. State of M.P. and another1 and he submits that the learned Single Judge has erred in dismissing the writ petition.
6. Learned counsel appearing for the State opposed the submissions put forth by the learned counsel appearing for the appellant. He states that the order of withholding of full pension of the appellant has been passed in the name of Governor of the State of M.P. and, therefore, the same is an order passed by the State Government and Under Secretary has only issued the order, as per the rules of business. He further submits that no opportunity of hearing is required before passing an order of withholding pension. In addition, he submits that the larger Bench of this Court in the matter of Lal Sahab Bairagi vs. State of M.P. and others2 has overruled the judgment of Full Bench in the case of Ram Sewak Mishra1 and it has been held that the State Government is not required to issue notice or afford an opportunity of hearing before passing the order under the Rules of 1976 for withholding pension on conviction.
1 [2017 (4) M.P.L.J. 428 2 2020(2) M.P.L.J. 551 4
7. We have heard the learned counsel appearing for the parties and perused the record.
8. A perusal of Clause (b) of sub-rule (1) of Rule 8 would show that 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. Sub-rule (2) of Rule 8 stipulates that 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 judgment of the court relating to such conviction. Sub-rule (1) of Rule 9 of the Rules of 1976 provides that the Governor reserve 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 petitioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.
9. The appellant stands convicted for a serious offence relating to Prevention of Corruption Act. Withholding of pension under the provisions of Rule 8(1) (b) (2) read with Rule 9 (1) of the Rules of 1976 cannot be faulted with.
10. After passing of the judgment by the Full Bench in the case of Ram Sewak Mishra1, the Division Bench of this court in Writ Petition No.16549 of 2016 vide order dated 26.11.2019, doubted the correctness of the majority view taken in Ram Sewak Mishra1 and, therefore, the matter was referred for consideration before the Larger Bench. The Larger Bench of this Court in the case of Lal Sahab Bairagi2 has held that the decision of 5 the Full Bench in the case of Ram Sewak Mishra1 does not lay down the correct law and accordingly the same has been overruled. The Larger Bench in its pronouncement in para 17 held as under:-
"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 case of Dau Ram Maheshwar (supra) are hereby overruled.
(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."
11. In view of the aforesaid, we find that so far as issue with respect to grant of hearing before an order of withholding of pension is concerned, the same stands concluded by the decision of the Larger Bench of this Court. Therefore, we do not find any substance in the submission made by the learned counsel appearing for the appellant.
12. So far as the argument of issuance of order by the Governor is concerned, the same is also of no substance as a perusal of the order would clearly demonstrate that the same has been issued in the name of Governor.
6Under Article 166 of the Constitution of India, all executive action of the Government of a State shall be expressed to be taken in the name of Governor. Sub-article 2 of Article 166 provides that Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. It is provided in sub-Article (3) of the 166 of the Constitution of India that the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
13. In view of the aforesaid, we find that there is no substance in the argument made by the learned counsel for the appellant that only the Governor is empowered to pass such an order.
14. So far as the argument with respect to suspension of sentence is concerned, the same also does not have any substance as in Criminal Appeal No.1867 of 2011, vide order dated 24.08.2011 it is only the sentence part which has been suspended by this Court. The conviction of the appellant still stands.
15. For the aforesaid reasons, we find no substance in this intra Court appeal. Accordingly, the same is dismissed.
(RAVI MALIMATH) (PURUSHAINDRA KUMAR KAURAV)
CHIEF JUSTICE JUDGE
pb.
Digitally signed by PRASHANT BAGJILEWALE
Date: 2022.04.27 19:13:05 +05'30'