Lal Sahab Bairagi vs The State Of Madhya Pradesh on 26 November, 2018

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Madhya Pradesh High Court

Lal Sahab Bairagi vs The State Of Madhya Pradesh on 26 November, 2018

The petitioner has filed this petition being aggrieved by order dated 8.8.2016 passed by the respondent authorities, whereby the pension of the petitioner has been withdrawn after obtaining approval of the P.S.C. as required by the rules, on account of his conviction by the competent criminal Court vide judgment dated 11.4.2014 passed in Special Criminal Case No.15/2009, whereby he has been found guilty of offences punishable under Sections 13 (1) (d) read with W.P. No.16549/2016

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Section 13 (2) of the Prevention of Corruption Act, 1988 and Sections 409 and 120 of the Indian Penal Code.

2. The only ground on which the order has been challenged is violation of the principles of natural justice as no show cause notice or opportunity of hearing was given to the petitioner before passing the order.

3. The learned counsel appearing for the petitioner submits that a learned Single Judge of this Court in the case of Dau Ram Maheshwar. Vs. State of Madhya Pradesh and another, 2017 (1) MPLJ 640, where the facts were identical to that of the present petition and where an order under Rule 9 of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as 'the Pension Rules of 1976') was passed by the authorities for withdrawing the pension, while interpreting Rule 8 and Rule 9 of the Pension Rules of 1976, has held that the principles of natural justice were required to be followed by the authorities before passing any order with-holding the pension on the basis of the conviction of the person concerned by the competent Court of law.

4. It is submitted that the correctness of the view taken by the learned Single Judge in the case of Dau Ram Maheshwar W.P. No.16549/2016

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(supra) was referred to a Full Bench of Three Judges in the case of Ram Sewak Mishra Vs. State of Madhya Pradesh and another (W.P No.1353/2011) decided on 18.07.2017, wherein the majority has held that the view taken by the learned Single Judge in the case of Dau Ram Maheshwar (supra) is correct. It is submitted that the Full Bench in the case of Ram Sewak Mishra (supra), while considering and interpreting the provisions of Rule 8 of the Pension Rules of 1976, has held that in the absence of express exclusion of the principles of natural justice, the same have to be read into the provisions of Rule 8 specifically Rule 8(2) before any order is passed for withdrawing of pension or withdrawing part thereof.

5. The learned counsel for the petitioner submits that in view of the law laid down by the Full Bench in the case of Ram Sewak Mishra (supra), the impugned order passed in the petitioner's case also deserves to be quashed as the same has been passed without giving any show cause notice or opportunity of hearing to the petitioner.

6. We have heard the learned counsel for the petitioner as well as the respondents at length and have carefully perused the order passed by the learned Single Judge in the case of Dau Ram Maheshwar (supra) as well as the Full Bench W.P. No.16549/2016

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decision in the case of Ram Sewak Mishra (supra) and have also carefully perused Rule 8 of the Pension Rules of 1976.

7. We think it appropriate to reproduce the relevant provisions of Rule 8 of the Pension Rules of 1976. Rule 8 (1)

(b), Rule 8 (2) and Rule 8 (3) are in the following terms:-

"8. Pension subject to future good conduct. (1)(a) xxx xxx xxx

(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 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)-

W.P. No.16549/2016

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(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)."

8. From a conjoint reading of the aforesaid three parts of Rule 8, it is apparent that the authorities 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. Rule 8 (2) provides that where a pensioner is convicted of a serious crime by a Court of law, action under the aforesaid clause (b) of sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction. Sub Rule 3 provides that except for the cases 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 issue a notice to the pensioner before passing an order.

9. A conjoint reading of Rule 8(1)(b), 8(2) and 8(3) makes it W.P. No.16549/2016

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abundantly clear that the provisions inserted and incorporated in Rule 8 (3) providing for issuance of a notice to the pensioner before taking any action against him, are specifically excluded in respect of cases falling under sub-rule (2) of Rule 8, i.e., cases where orders are passed on conviction of a pensioner for serious offences.

10. Apparently, the effect, impact and import of the specific exclusion of cases falling under Sub-rule (2) from the applicability of Sub-rule (3) of Rule 8 of the Pension Rules, 1976, has not been taken into consideration by the Full Bench in the case of Ram Sewak Mishra (supra) or the learned Single Judge in the case of Dau Ram Maheshwar (supra).

11. It is worth noting that a Full Bench of this Court in the case of Laxmi Narayan Hayaran vs. State of M.P. and another, 2004(4) M.P.L.J. 555, while considering similar provision relating to termination of an employee on his conviction in a criminal case contained in Rule 19 of the CCA Rules, has held that the principle of natural justice need not be followed while passing an order of termination by relying upon and extensively quoting the decision of the Supreme Court in the case of Union of India vs. Tulsiram Patel (1985) 3 SCC 398, wherein this issue was elaborately dealt with. W.P. No.16549/2016

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12. On a bare reading of the Pension Rules of 1976, the procedure of giving a notice to the pensioner before passing any order incorporated in Sub-rule (3) of Rule 8 of the Pension Rules of 1976, is not applicable to cases which falls under sub- rule (2) where orders are passed on conviction of the pensioner. As this aspect was not placed or argued before the Full Bench in the case of Ram Sewak Mishra (supra) and as it is relevant for deciding the issue raised before us, we are of the considered opinion that the following questions be reconsidered and decided by a Larger Bench:-

1. Whether in view of the specific exclusion of the procedure for providing hearing incorporated in Rule 8 (3) of the Pension Rules of 1976, in respect of the cases falling under Rule 8 (2), the same can be insisted upon in the light of the Full Bench decision in the case of Ram Sewak Mishra (supra) ?

2. Whether the Full Bench judgment in the case of Ram Sewak Mishra (supra) deserves to be re-examined and reconsidered in view of the words "in a case not falling under Sub-rule 2" clearly and specifically incorporated in Rule 8 (3) of the Pension Rules of 1976 ?

3. Whether the authority is required to issue a show W.P. No.16549/2016

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cause notice prior to passing of an order in terms of Rules 8 and 9 of the Pension Rules of 1976, in cases of withdrawal of pension or part thereof on account of conviction in a criminal case ?

13. The Registry is directed to place the matter before the Hon'ble Chief Justice for appropriate orders in this regard.

      (R.S. Jha)                                (Sanjay Dwivedi)
        Judge                                         Judge
pp.


Digitally signed by
PUSHPENDRA PATEL
Date: 2018.12.01
14:02:56 +05'30'

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