Gujarat High Court
Amanullahkhan Bhurekhan Pathan vs State Of Gujarat on 9 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/8452/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8452 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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AMANULLAHKHAN BHUREKHAN PATHAN....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR MA KHARADI, ADVOCATE for the Petitioner(s) No. 1
Mr.Taranjit singh Wadhwa, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE Ms. JUSTICE SONIA GOKANI
9th January 2017
ORAL JUDGMENT
1. This petition is preferred under Article 226 of Constitution of India, challenging the order passed by the respondent dated 15th April, 2015, whereby Page 1 of 21 HC-NIC Page 1 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT the pension of the petitioner has been withdrawn on permanent basis by invoking the provisions of Rule 24 of the Gujarat Civil Service (Pension) Rules (for short "Rules").
2. The facts in a capsulized form are as follows :-
2.1. On attaining the age of superannuation on 31st July, 2008, the petitioner had retired from the Police Training College, Junagadh. He was serving as an Inspector with C.I.D (Crime), Ahmedabad, prior to his serving at the Police Training College. The petitioner enjoyed a blotless career. However, in the year 2004, a complaint being I-CR No. 15 of 2004 came to be lodged for the offences under the provisions of Prevention of Corruption Act which was registered with the ACB Police Station, Ahmedabad.
The Special Court, after completion of the trial, chose to convict the petitioner. By way of filing Criminal Appeal No. 594 of 2013, the judgment of the Special Court came to be challenged. Criminal Misc. Application No. 6459 of 2013 was also moved which was entertained by this Court and order of sentence came to be suspended. The respondent- authority in the said circumstances, fixed provisional pension of the petitioner which he continues to receive.
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2.2. A show cause notice was issued on 23rd December, 2014, calling upon the petitioner to show cause as to why the pension which the petitioner is receiving or its part may not be withdrawn. The period between 24.9.2004 to 19.10.2006 should not be considered as period of suspension. 2.3. Reply of the said show cause notice was given on 20th January, 2015. Upon receipt of reply dated 20th January, 2015, another notice was issued on 4th February, 2015, by which the earlier show cause notice was cancelled and by invoking the provisions of Rule 24 of the Rules, the petitioner was called upon to explain as to why pension should not be withdrawn and the petitioner was further called upon to explain as to why the period between 24th September, 2004 to 19th October, 2006, should not be considered as the period under suspension. It is the grievance of the petitioner that though the sentence has been suspended by this Court, the respondent still issued show cause notice and later on passed an order to withdraw the pension. The latest show cause notice also has been replied to. 2.4 It is his say that in view of the challenge to the conviction by preferring an appeal, coupled with the facts, the sentence was suspended by this Court, no Page 3 of 21 HC-NIC Page 3 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT occasion for the respondent would arise either to issue show cause notice or to pass the order under Rule 24(3) of the Rules, when the judicial proceedings are yet to conclude since the Appeal challenging conviction is pending. The petitioner has sought to rely upon the sub-rule (5) of Rule 24 of the pension Rules and [sub-clause (ii) of Clause
(b)] sub -rule (2) of Rule 24. It is the grievance of the petitioner that the decision taken on 15th April, 2015 suffers from non application of mind. There was no reason for the respondent to issue such a show cause notice after a period of almost seven years after the petitioner attained the age of superannuation, and the impugned order is challenged on the ground that the departmental inquiry after a stage has not commenced and hence, has remained inconclusive. Pending such an inquiry, no authority can pass such a harsh order by misinterpreting Rule 24 of the Rules and grant of bail or suspension of sentence, even though would not mean that the petitioner is declared innocent,the order is a non-speaking and cryptic order. The petitioner also submits that a bare perusal of the impugned order makes it clear that the respondent has not recorded his satisfaction to Page 4 of 21 HC-NIC Page 4 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT pass the impugned order. The petitioner has sought for the following prayers :-
"(A) Admit and allow this petition;
(B) Allow this petition by quashing and setting aside the order passed by the respondent dated April 15, 2015 (Annexure A) in the interest of justice.
(C) Grant the interim relief by staying execution, implementation and operation of the order passed by the respondent on April 15, 2015, pending admission and final disposal of the petition.
(D) Award the cost of this petition.
(E) Grant such other and further relief/s which may deem fit to the Hon'ble Court in the interest of justice."
3. An affidavit-in-reply is filed by the Dy. S.P and Vice Principal, Police Training College, Junagadh, inter alia contending that it is not in dispute that the petitioner was appointed on 1.7.1973 on the post of P.S.I, in the office of the Additional DGP, CID Crime and Railway. A case was registered against the petitioner under Anti Corruption Bureau Police Station, Ahmedabad city, being I-CR No. 15 of 2004, under the Prevention and Corruption Act, Page 5 of 21 HC-NIC Page 5 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT 1988, under sections 7, 13(1)(3) & 13(2). The reinstatement was given on 18th October, 2006 and he was posted at Police Training College, Junagadh. The petitioner joined on 30th October, 2006, and then superannuated on 31st July, 2008. He was granted provisional pension and revised pension on 30th September, 2008 and 5th December, 2010 respectively. A clarification was sought as to why action should not be taken as he was found guilty by the Competent Court. Thereafter on 5th March, 2015 the petitioner submitted his explanation.
4. Subsequently, on 15th April, 2015, the State has decided that the petitioner's service period of suspension shall be treated as 100% pension cut.
5. Thus, for the FIR which has been lodged in the year 2004, a notice came to be issued after six years. For FIR and date of conviction dated 30th March, 2013, after about 1 and ½ years, a notice came to be issued against the petitioner on 4th February, 2015. His explanation is dated 5th March, 2015 .
6. According to the respondent, the Finance Department Government Resolution dated 1st October, 2009, empowers the State Government to take any decision even in the case where an appeal Page 6 of 21 HC-NIC Page 6 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT has been filed before the higher forum. The proviso- 1 of the GR dated 1st October, 2009, provides that the State is empowered to withhold pension or pass any orders even when an appeal is pending. With the sanction of the Governor and office of the Vice Principal, Police Training College, Junagadh, the petitioner has been found guilty under the judicial proceedings.
7. Both the sides have been heard at length.
8. Learned advocate Mr. M.A. Kharadi appearing for the petitioner has sought to rely upon the following decisions:-
(1) K.Prabhakaran Vs. P.Jayarajan with Ramesh Singh Dalal Vs. Nafe Singh and others reported in AIR 2005 SC 688.
(2) Subhash chand Vs. S.M.Aggarwal and another reported in 1984 CRI. L.J.481
9. Before adverting to the facts, Rule 24 of GCSR Rules deserves reproduction at this stage :-
"24. Right of Government to withhold or withdraw pension:
(1) Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government, if in any Page 7 of 21 HC-NIC Page 7 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of of his service including service rendered upon re-employment after retirement.
Provided that the Gujarat Public Service Commission shall be constituted before any final order is passed in respect of officers holding posts within their purview.
Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum fixed by Government.
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government employee was in service whether before his retirement or during his re-employment shall, after the final retirement of the Government employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commended in the same manner as if the Government employee had continued in service.
(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his reemployment-
(i) shall not be instituted save with the sanction of
the Governor,
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(ii) shall not be in respect of any event which took place more than four years before such institutions, and
(iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relationto the Government employee during his service. (3) In case of a Government employee 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 as provided in rule 144 to 146 shall be sanctioned.
(4) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of subrule(1) of this rule, ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government employee.
(5) 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 employee or pension, of if the Government employee has been Page 9 of 21 HC-NIC Page 9 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT placed under suspension from an earlier date, on such date, and
(b) judicial proceedings shall be deemed to be instituted-
(i) in case of criminal proceedings, on the date on which the complaint or report is made by a police officer of which the Magistrate takes cognizance and
(ii) in case of civil proceedings, on the date of presenting the plaint in the Court "
10. The said rule provides that Government may, by an order in writing, withhold or withdraw pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service .
It also provided further that the Gujarat Public Service Commission shall be consulted before any final order is passed. Again, where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum fixed by Government. The departmental proceedings if instituted while the Government employee was in service whether before his Page 10 of 21 HC-NIC Page 10 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT retirement or during his re-employment shall, after the final retirement of the Government employee, 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 employee had continued in service.
Rule 24 sub rule (2)(b) provided that the departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his reemployment, the same shall not be instituted save with the sanction of the Governor and also shall not be in respect of any event which took place more than four years before such institution. It shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure.
As per sub-rule (3) of Rule 24, the Government employee who has retired on attaining the age of superannuation or otherwise and against whom any department or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule(2), a provisional pension as provided in Rule 144 to 146 shall be sanctioned.
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Sub- rule (5) provided that departmental
proceedings shall be deemed to be instituted on the date on which the statement of charge is issued to the Government employee or pensioner, or if the Government employee has been placed under suspension from an earlier date. So far as judicial proceedings are concerned, they shall be deemed to be instituted - in case of criminal proceedings, on the date on which the complaint or report is made by a police officer of which the Magistrate takes cognizance. In case of civil proceedings, on the date of presenting the plaint in the Court .
11. According to the respondent under the said rule, the order has been passed with the sanction of the Governor and petitioner since has been found guilty under the judicial proceedings, the order of 100% cut in pension is said to be justifiable.
12. Admittedly, the departmental proceedings had not been instituted while the Government employee was in service. Therefore, this rule stipulates institution only with the sanction of the Governor. It also precludes the State to institute the departmental proceedings in respect of any event which took place more than four years before such institution. The provisional pension in respect of Page 12 of 21 HC-NIC Page 12 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT present petitioner has been started referring to Circular dated 1st October, 2009, issued by the Finance Department of the State Government and the order has been passed by the concerned authority. If an employee is convicted under the anti corruption law and no stay has been granted, without waiting for the outcome of the appeal, as may be preferred by an employee (as departmental proceedings are required to be completed according to the provision under the GCSR Rules particularly 23 and 24 read with Gujarat Civil Services Rules 71), it has been directed that due to the pendency of departmental proceedings, unnecessary provisional pension paid is not justifiable and within forty five days of getting the certified copy, it will be the personal responsibility of the departmental head under Rules 23 and 24 of the Pension Rules.
At the same time, it further provided that if any officer is declared innocent and/or is given benefit of doubt and if the State Government has preferred an appeal and no stay has been granted against the said decisions, and if there are no other departmental proceedings pending, pension needs to be finalized and such an order should be a Page 13 of 21 HC-NIC Page 13 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT speaking order which should provide all details of the court proceedings.
13. Admittedly, in the case on hand, the petitioner has been held guilty under the Prevention of Corruption Act and he has been convicted for the offences punishable under Sections 7,13(1)(d), 1,2,3 and 13(2) of the Prevention of Corruption Act and has been sentenced for 1 year simple imprisonment and fine of Rs. 10,000/- and in default, to undergo further simple imprisonment for three months for the offence punishable u/s. 7 of the Prevention of Corruption Act. He has also been sentenced for 3 years' simple imprisonment and fine of Rs.20,000/- and in default, to undergo further simple imprisonment for 3 months for the offence punishable under Sections 13(1)(d)(i)(ii)(iii) read with Section 13(2) of the Prevention of Corruption Act. Both the sentences are to run concurrently and there is remission for the time he has been in judicial custody.
14. Thus, for the FIR of the year 2004, the conviction is in the month of March 2013. This Court has already stayed the Appeal which came to be preferred by the petitioner against the judgment and order of conviction being Criminal Appeal No. Page 14 of 21 HC-NIC Page 14 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT 594 of 2013. Criminal Misc. Application No. 6459 of 2013, was entertained by the Court suspending the order during the pendency of the petition. The Respondent-authority, after the petitioner attained superannuation, fixed the provisional pension and after nearly 1 and ½ years, a notice came to be issued by the respondent -authority against the present petitioner stating as to why the petitioner's pension should not be stopped considering the serious action of indiscipline and also considering the period of two years between 24.9.2004 and 19.10.2006 as the period of suspension.
15. In the opinion of this Court, the above notice appears to be misconceived. The judgment and order referred to in the show cause notice has been challenged in the Appeal before the High Court and the judgment was rendered on March 30, 2013. The order of suspension of sentence has been made on 25thApril, 2013. In the opinion of this Court, when the Appellate Authority has already suspended the sentence,it is not the case where the trial Court has convicted the person and no stay has been granted. Instead this is a case where the petitioner has been convicted and the State has preferred an Appeal & admittedly, the departmental proceedings have not Page 15 of 21 HC-NIC Page 15 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT been initiated as yet.
16. Reliance is placed on the judgment of the Apex Court rendered in case of K. Prabhakaran Vs. P.Jayarajan (Supra) wherein the question of disqualification of a returned candidate within the meaning of Section 100(1)(a) of the Representation of the People Act, 1951, arose wherein the Supreme Court has held that the Court seized of a proceeding must take note of events subsequent to the inception of that proceeding, lest it would cause injustice The emphasis is on the events happening subsequent to the inception of that proceedings. The relevant observations reads as under:-
"37. Four factors are relevant. Firstly, the sentence of death was passed in judicial proceedings and the appeal against the judgment of the trial court being a continuation of those judicial proceedings, the court was not powerless to take note of subsequent events. The sentence of death was passed based on an event which had ceased to exist during the pendency of the appeal. The court was, not only, not powerless but was rather obliged to take note of such subsequent event, failing which a grave injustice would have been done to the accused. Secondly, the court interpreted Section 303 I.P.C. which speaks of a person "under sentence of imprisonment for life" as meaning a person under an operative, executable sentence of imprisonment for Page 16 of 21 HC-NIC Page 16 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT life. A sentence once imposed but later set aside is not executable and, therefore, ceases to be relevant for the purpose of Section 303 I.P.C. Thirdly, the focal point was the date of conviction when the court is called upon to pronounce the sentence. Fourthly, it is pertinent to note that the well established proposition which the court pressed into service was that "a court seized of a proceeding must take note of events subsequent to the inception of that proceeding", which position, the court held, is applicable to civil as well as criminal proceedings with appropriate modifications. The emphasis is on the events happening subsequent to the inception of that proceeding. In the cases at hand, the principle laid down in Dalip Kumar Sharma's case (supra) will have no application inasmuch as the validity of nomination paper is to be tested by deciding qualification or disqualification of the candidate on the date of scrutiny and not by reference to any event subsequent thereto.
17. In case of Subhash Chand Vs. S.M. Aggarwal and another (Supra) wherein, the Apex Court considered the question of conduct of a learned Additional Sessions Judge who had awarded death sentence in a case and had made a reference to the High Court for the confirmation of the death sentence, immediately after handing down the judgment and while the reference for Page 17 of 21 HC-NIC Page 17 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT confirmation was sub judice, he gave interviews to the press and Doordarshan (Television) in which he extensively commented on the merits of case and described the accused as one of the worst criminals. His conduct bordered on contempt and was also violative of judicial propriety. While considering such conduct, a reference was also made of Section 2(c)(ii) "judicial proceedings" which would mean that even an Appeal is a continuation of the trial. The relevant observations reads as under:-
7. Bawa Gurcharan Singh, learned counsel for the petitioner, also invited our attention to Section 2C (ii) of Contempt of Courts Act wherein a publication which prejudices or interfere or tends to interfere with, the due course of any judicial proceedings, has been defined as criminal contempt.
His contention that by using the words "judicial proceeding" the Legislature has done away with the distinction between trial and appeal and has in its wisdom chosen to use the words. "judicial proceedings" which are wider in sweep and which we fair construction would mean even the appeal which is a continuation of the trial, to out mind appears to be well founded. It would thus be seen that respondent No.1 went to the media to give interviews in respect of a case which was pending Page 18 of 21 HC-NIC Page 18 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT trial before this Court and the contents of the interview would show that it had not only a tendency and capacity to cause prejudice but it did make it difficult for the court to deal with the case in the manner which law and justice would require of it."
18. In the instant case, the appeal is pending which is a continuation of the trial and therefore, when the judicial proceedings are already pending and the order of suspension of sentence is also passed by this Court, invoking powers under Rule 24 of the Rules by taking recourse to the Circular dated 1st October, 2009 by the respondent-authority is surely not sustainable.
19. Even perusal of the impugned order reflects that the respondent has not given cogent and clear reasonings to pass the impugned order. After 31st July, 2008, no chargesheet has been issued within four years as is provided under the Rules and after about seven years, such notice came to be issued, when the Appellate Court suspended the sentence. Since there are no departmental proceedings initiated by the State, in absence of either the chargesheet or initiation of any proceedings as provided under the Disciplinary and Appeal Rules, the only aspect the department can rely upon is the Page 19 of 21 HC-NIC Page 19 of 21 Created On Sat Aug 12 03:19:50 IST 2017 C/SCA/8452/2015 JUDGMENT conviction in the judicial proceedings. The judicial proceedings also would include the pending Appeal which is a continuation of trial, where the Court had suspended the order of sentence and that could not have been ignored.
At the cost of reiteration, it has been stated that departmental proceedings have been instituted within four years, the petitioner's superannuation and order of sentence having been stayed, there is nothing at present with the department to act upon such direction of 100% cut in the pension. Assuming that the respondent -authority at the time of retirement of the petitioner also made a note of fact that the criminal proceedings are pending and on its outcome, it would have right to initiate the departmental proceedings within four years of date of superannuation, the right is permitted but the departmental proceedings have not been instituted for the event which took place within four years such institution, as per sub rule (5) of Rule
24. Further also it is not the case that the departmental proceedings have been instituted as the same get institution from the date on which the chargesheet has been issued to the Government employee or pensioner.
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20. For the foregoing reasons, the present petition succeeds and the same is accordingly allowed. The impugned order dated April, 15, 2015 is quashed and set aside. The petitioner be paid the amount of pension accordingly.
There shall be, however, no order as to costs.
(Ms. SONIA GOKANI, J.) BINA Page 21 of 21 HC-NIC Page 21 of 21 Created On Sat Aug 12 03:19:50 IST 2017