Chattisgarh High Court
Ramadhar Singh vs State Of Chhattisgarh & Others on 20 April, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION NO 2480 of 2005
Ramadhar Singh
...Petitioners
Versus
State of Chhattisgarh & others
...Respondents
! Shri Manoj Paranjpe Advocate for the petitioner ^ Shri M P S Bhatia Dy Government Advocate for the State Shri Malay Shrivastava Advocate for respondent No 6 CORAM: Honble Mr Satish K Agnihotri J Dated: 20/04/2010 : Judgement ORDER ORAL Passed on 20th Day of April 2010 WRIT PETITION UNDER ARTICLE 226227 OF THE CONSTITUTION OF INDIA
1. Challenge in this petition is to the order dated 07/09/2000 (Annexure P/5) passed by the Government of Madhya Pradesh whereby the State Government by exercising its power under Rule 9 (1) of the Madhya Pradesh/Chhattisgarh Civil Services (Pension) Rules, 1976 (for short "the Rules 1976") withheld the full pension of the petitioner permanently on the ground that the petitioner was convicted for commission of an offence punishable under Sections 7, 13 (1) (d) (i) and 13 (2) of the Prevention of Corruption Act , 1988 (for short "the Act, 1988") and was sentenced to undergo rigorous imprisonment for 6 months and 1 year, respectively.
2. The facts, in nutshell, are that the petitioner while working as Patwari, was caught red handed while receiving some bribe. Thereafter, a criminal case was registered and the petitioner was convicted by judgment and order dated 14.09.1998 passed by the Special Judge, Durg, in special case No.2/93 for commission of offence and sentenced to undergo rigorous imprisonment for one and half year with fine. Thereagainst, a criminal appeal was preferred by the petitioner being Cr.A.No.2210 of 1998, which is still pending consideration before this Court.
3. According to Shri Paranjpe, learned counsel appearing for the petitioner, the sentence imposed on the petitioner has been suspended by the High Court on 30.09.1998. Shri Paranjpe, further submits that the authorities, before withholding full pension, have not taken recourse to statutory procedure as prescribed under Rule 8 of the Rules, 1976. The petitioner ought to have been given opportunity of hearing to put forward his case. Secondly, after conviction, the petitioner continuously received the pension for a period of two years and thereafter by the impugned order all of a sudden the same has been withheld.
4. On the other hand, Shri Bhatia, leaned counsel appearing for the State, submits that under Rule 9 of the Rules, 1976 the State Government is fully empowered to withhold the full pension of the petitioner having regard to the fact that the petitioner was caught red handed while receiving bribe and thereafter he was convicted by the Court of law. Therefore, the question of issuance of notice before passing the impugned order does not arise at all. Thus, the impugned order passed in exercise of powers conferred under Rule 9 of the Rules, 1976, is just, proper and warrants no interference.
5. In support of his contention, Shri Paranjpe placed his relies upon the decision of the Supreme Court rendered in State of U.P. and others v. Jawahar Lal Bhatia1 wherein in any departmental proceeding, the employee was found guilty of charges and looking at the serious nature of charges leveled against the employee, it was held that withholding of pension of the employee to the extent of 75 % is excessive.
6. The facts of the case on hand are entirely different. In this case, petitioner was found guilty of receiving bribe while performing his duty and as such it was serious nature of crime for a Government employee.
7. Rule 8 and Rule 9 (1) of the Rules, 1976 reads as under:
"8. Pension subject to future good conduct. - (1) (a) Future good conduct shall be an implied condition for 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 petitioner 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 judgment of the Court relating to such conviction.
(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) xxx xxx xxx
(5) xxx xxx xxx
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:
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.
xxx xxx xxx
xxx xxx xxx"
8. Rule 8 of the Rules, 1976 provides for grant of pension and its continuance subject to future good conduct. Rule 8(1)(b) provides for passing an order in writing for withholding or withdrawing pension or a part thereof permanently or for a specified period if the petitioner is convicted of a serious crime or is found guilty of grave misconduct, not by a court of law. Sub-
rule (2) of Rule 8 of the Rules, 1976 does not provide for passing an order in writing wherein an employee has been convicted of a serious crime by a court of law under clause (b) of sub-rule (1) of Rule 8 of the Rules, 1976.
Clause (a) and (b) of sub-rule (3) of Rule 8 of the Rules, 1976 provides for issue of a notice and consideration of the representation, if any filed by the employee.
9. It is a case not under the provisions of sub-rule (1) of Rule 8 of the Rules, 1976 but under the provisions of sub-rule (2) of Rule 8 of the Rules, 1976 wherein there is no contemplation of any notice specifying action proposed to be taken or further consideration of the representation, if any submitted by the pensioner before passing an order of withholding of the pension and as such, in the case on hand, no notice was required as the petitioner has been found guilty of accepting bribe and convicted thereon for the offences punishable under section 7, 13 (1) (d) (i) and 13 (2) of the Act , 1988 and sentenced to undergo imprisonment for six months and one year, respectively, with fine by a court of law.
10. Rule 9 of the Rules 1976 confers power and right to the Governor for withholding or withdrawing pension permanently or for a specified period. The question asto whether the Governor means Governor himself or Government in exercise of its power in the name of and by order of Governor under Article 166(3) of the Constitution of India, the issue has already been settled by the Supreme Court in State of M.P. and Others v. Dr. Yashwant Trimbak2, wherein it has been held that the power to sanction under the provisions of Pension Rules is nothing but an executive action of the Government provided under the rules. The Governor is not required under the constitution to act in his discretion in this view of the matter when the Governor has framed Rules of Business under Article 166(3) of the Constitution allocating his functions to the concerned ministers.
11. The Supreme Court, in State of M.P. and Others v. Dr. Yashwant Trimbak (supra), observed as under:
14. The Rule in question no doubt provides that departmental proceedings if not instituted while the government servant was in service whether before his retirement or during his re-
employment, shall not be instituted save with the sanction of the Governor. The question that arises for consideration is whether it requires the sanction of the Governor himself or the Council of Ministers in whose favour the Governor under the Rules of Business has allocated the matter, can also sanction. It is undisputed that under Article 166(3) of the Constitution the Governor has made rule for convenient transaction of the business of the Government and the question of sanction to prosecute in the case in hand was dealt with by the Council of Ministers in accordance with the Rules of Business. Under Article 154 of the Constitution, the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The expression "executive power" is wide enough to connote the residue of the governmental function that remains after the legislative and judicial functions are taken away.
17. The order of sanction for prosecution of a retired government servant is undoubtedly an executive action of the Government. A Governor in exercise of his powers under Article 166(3) of the Constitution may allocate all his functions to different Ministers by framing rules of business except those in which the Governor is required by the Constitution to exercise his own discretion. The expression "business of the Government of the State" in Article 166(3) of the Constitution, comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The Court has held in Godavari Shamrao Parulekar v. State of Maharashtra that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution. In State of Bihar v. Rani Sonabati Kumari, where power of issuing notification under Section 3(1) of the Bihar Land Reforms Act, 1950 have been conferred on the Governor of Bihar, this Court held:
`Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Article 166(3) of the Constitution.'
18. Therefore, excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to Ministers.
19. Mr Jain's contention is solely based on the ground that in the Rule itself both the expressions `Governor' and `Government' have been used and therefore the expression "sanction of the Governor" in Rule 9 (2) (b) (i) would mean the personal sanction of the Governor. We are unable to accept this contention. The power to sanction is nothing but an executive action of the Government provided under the Rules. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion. In this view of the matter when the Governor has framed Rules of Business under Article 166(3) of the Constitution allocating his functions and it is the Council of Ministers which has taken the decision to sanction prosecution of the respondent, we see no legal infirmity in the same. The Tribunal erred in law in coming to the conclusion that the sanction required under the rule is a sanction of the Governor."
12. After applying the well settled principles of law to the facts of the case, it is apparent that the impugned order dated 07.09.2000 (Annexure P/5) was passed on conviction of the petitioner by the Court of law, in exercise of power under sub-rule (2) of Rule 8 read with Rule 9 (1) of the Rules, 1976. Thus, there is no error in law or otherwise.
13. For the reasons stated hereinabove, the writ petition fails and is hereby dismissed. No order asto costs.
JUDGE