Madhya Pradesh High Court
N.P.Shrivastava vs Madhya Pradesh State Electricity Board on 15 May, 2018
Equivalent citations: AIRONLINE 2018 MP 362
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.8887/2012
N.P. Shrivastava
Vs.
M.P.State Electricity Board & another
Shri S.K. Rao, learned senior counsel with Shri S.
Chaturvedi and S.Pandey, learned counsel for the
petitioner.
Shri Sanjay Agrawal, learned counsel for respondents .
WRIT PETITION NO.8911/2012
Prakash Chandra Mandloi
Vs.
M.P.State Electricity Board & another
Shri S.K. Rao, learned senior counsel with Shri S.
Chaturvedi and S.Pandey, learned counsel for the
petitioner.
Shri Abhinav Kherdikar, learned counsel for
respondents.
ORDER
(15/05/2018) Both these above writ petitions are being decided by this common order as the common question as well as the facts are involved in all these writ petitions. However, for the sake of brevity, the facts are taken from Writ Petition No.8887/2012. 2
2. The petitioner has filed the present writ petition challenging the orders dated 24/02/2012 passed by respondent No.2 thereby withholding the pension of the petitioner permanently by exercising the powers given under Rule 9(1) of the Civil Pension Rules, 1976 (hereinafter referred to as 'the Rules of 1976').
3. The petitioner was initially appointed as Graduate Trainee on 27/07/1964. He was promoted from time to time to the post of Assistant Engineer, Executive Engineer and Chief Engineer. At the time of retirement, he was promoted to the post of Executive Director of the respondent-Board. The petitioner thereafter retired vide order dated 09/06/1997 on attaining the age of superannuation w.e.f. 31/01/1998. At the time of retirement no disciplinary action has been initiated or pending against him and he was allowed to draw full pension vide order dated 28/01/1998.
4. M.P. State Electricity Board is a statutory Board constituted under Section 5 of the Electricity (Supply) Act, 1948 and the Board has adopted the Madhya Pradesh Civil Services (Pension) Rules, 1976 in place of Pension Rules, 1951 vide notification dated 03/04/1978. 3
5. After retirement, the petitioner was drawing full pension for more than 14 years. After nine years of his retirement, on the basis of certain complaints made regarding irregularities in purchase proposal for procurement of energy meters of the year 1997, Lokayukt Police after investigating the matter filed challan against five officers of the Board including the petitioner before the Court of Special Judge (Prevention of Corruption Act), Jabalpur for committing offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 along with Section 120-B of the Indian Penal Code. The said case was registered as Criminal Case No.12/2009. The trial Court vide its judgment dated 15/12/2011 convicted all the five accused including the petitioner and sentenced them to suffer Rigorous Imprisonment for a period of three years with fine of Rs.1,00,000/- and Rigorous Imprisonment for six months and fine of Rs.1,000/- respectively on each count. Being aggrieved by the said judgment, the petitioner has filed Criminal Appeal No.82/2012 before this Court and this Court vide order dated 06/01/2012 has suspended the execution of jail sentence until further orders.
4
6. On the basis of the aforesaid jail sentence awarded by 1st Additional Sessions Judge and Special Judge (Prevention of Corruption Act), Jabalpur and after suspending the jail sentence by this Court, the respondent-Board vide impugned order dated 24/02/2012 by exercising the powers under Rule 9(1) of the Rules of 1976 withheld the pension of the petitioner permanently. Being aggrieved by that order, the petitioner has filed the present writ petition.
7. Learned senior counsel appearing on behalf of the petitioner submits that the entire action of the respondents in withholding the entire pension of the petitioner is illegal and arbitrary. He submits that the respondent-Board vide notification dated 03/04/1978 while adopting the Pension Rules of 1976 to the employees of Board has substituted the word "Full Board" in Rule 9(1) of the Pension Rules, 1976 in place of word "Governor" vide order dated 13/09/2004. The said order has been issued by the order of respondent-Board under the signature of the Additional Secretary. He further submits that the Pension Rules of 1976 have been made by the Legislature by assent of His Excellency the Governor of Madhya Pradesh and only appropriate Legislature is 5 empowered to add, amend and substitute the word replacing the word "Governor" in Rule 9(1) of the Pension Rules of 1976 substituting as "Full Board". The respondent-Board or any other authority even under the delegated powers is not competent to add, amend or substitute any word either in any of the provisions or rules or condition of services unless it is passed by the appropriate Legislature. In the present case, the Board contrary to the provisions contained in Article 309 of the Constitution of India and contrary to the Pension Rules of 1976, has themselves amended the rules by substituting the word "Full Board" in place of "Governor" and, therefore, the act on the part of the respondent-Board in substituting the word "Full Board" in place of "Governor" is ab-initio-void, illegal and contrary to Article 309 of the Constitution of India. He also argued that Rule 9(1) of the Pension Rules of 1976 empowers and gives right only to His Excellency the Governor to withhold or withdraw the pension permanently. His Excellency the Governor cannot delegate the power to others in terms of the language referred "The Governor reserves to himself the right". The respondent-Board vide its order dated 13/09/2004 has made amendment in Rule 9(1) of 6 the Pension Rules, 1976 contrary to the provisions contained in Article 309 of the Constitution of India without placing the same before the competent Legislature.
8. Learned senior counsel for the petitioner further submits that the impugned order has been passed without issuing any notice or giving opportunity of hearing to the petitioner. The respondent authority has suo motu decided to forfeit the entire pension of the petitioner at his old age of 75 years. The order substituting the word "Full Board" in place of "Governor" in Rule 9(1) of the Pension Rules came into force w.e.f. 13/09/2004 giving its effect from 15/04/2001 while in the present case the petitioner is retired on 31/01/1998, therefore, the said circular was not applicable to the employees retired prior to 15/04/2001. Learned senior counsel further argues that under Rule 9(4) of the Pension Rules of 1976, protection has been granted to the retired employee on reaching the age of superannuation or otherwise 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 the case may be, sanctioned. However, 7 in the present case, judicial proceedings are pending against the petitioner and have not reached to the stage of finality. It is submitted that the judgment of the trial Court convicting the petitioner cannot be seen in isolation as the judicial proceedings are still continued and presently pending in criminal appeal before this Court. For the said purpose, learned senior counsel relies upon the judgment delivered by the Apex Court in the case of Garikapatti Veeraya Vs. N. Subbiah Choudhury, reported in AIR 1957 SC 540 as well as the judgment passed by the Allahabad High Court in the case of Shyamsunder Lal Vs. Shaquncdhand, reported in AIR 1967 Allahabad 214 in which it was held that the appeal is a continuation of the suit.
9. Learned senior counsel for the petitioner further submits that the pension which is granted to an employee is his property and cannot be withheld without any authority of law. For the said purpose, he relies upon the judgment passed by the Apex Court in the case of State of Jharkhand Vs. Jitendra Kumar Shirvastava, reported in (2013) 12 SCC
210. Similarly, on the point of issuance of show cause notice, learned senior counsel relies upon the judgment 8 passed by Full Bench of this Court in the case of Ramsewak Mishra Vs. State of M.P. and others, reported in 2017 (4) MPLJ 428. In light of aforesaid submissions, learned senior counsel for the petitioner submits that the writ petition deserves to be allowed.
10. The respondents have filed their reply. In the reply the respondents have state that the Central Legislature had enacted Electricity (Supply) Act, 1948 (hereinafter referred to as 'the Act of 1948') to provide for rationalization of production and supply of electricity and generally for taking measures conducive to electrical development and for all matters incidental thereto. Section 5 of the Act of 1948 provides for constitution of State Electricity Board by the State Government. By notification dated 30/03/1957, M.P. Electricity Board was constituted in the State of Madhya Pradesh w.e.f. 01/04/1957. On 01/11/2000 the State of Madhya Pradesh bifurcated into two successor States, namely, new State of Madhya Pradesh and State of Chhattisgarh. . Consequently, upon such bifurcation new Madhya Pradesh State Electricity Board was constituted by notification dated 27/12/2000 issued by Govt. of Madhya Pradesh, Department 9 of Energy w.e.f.01/01/2001. Section 79 of the Act of 1948 gives powers to the Board to make Regulations by notification in the official gazette for all or any of the matters enumerated therein. Clause (c) of Section 79 gives powers to the Board to frame Regulation in respect of duties of Officers and employees of the Board and their salary allowances and other conditions of services. State Legislature has framed M.P. Civil Services (Pension) Rules, 1976 in respect of every government employees appointed on civil servant post in connection with the affairs of State of Madhya Pradesh. The Board in exercise of its powers under clause (c) of Section 79 of the Act of 1948 issued a notification dated 03/04/1978substituting M.P. Civil Services (Pension) Rules, 1976 for M.P. New Pension Rules, 1951 and made the same applicable to all the employees in Board's service as on 01/06/1976 as also to those who entered the Board's service thereafter.
11. The Board has issued notification dated 04/09/2001 which provided that if any employee of the Board has been convicted in criminal offence, the Board is competent to withheld pension of such employee under Rule 9(1) of the 10 Pension Rules of 1976. It has been further stated that for withholding of pension, no prior notice would be required to be issued to such officer. The Board issued another oder dated 13/09/2004 substituting the word "Governor" by the word "Board/Competent Authority". In 1976 Rules as adopted by the Board vide notification dated 03/04/1978 and the word "Full Board" in the circular dated 04/09/2001 and order dated 27/02/2002 by the word "Board/Competent Authority".
12. Learned counsel for the respondents argues that Officers and employees of the Board are not the officers and employees of the State Government, therefore, His Excellency the Governor has no role to play in respect of service conditions of such officers and servant of the Board. The Board was quite competent to make amendment in the 1976 Rules. The Pension Rules of 1976 were originally applicable to the employees of the State Government. It is further submitted that the petitioner was convicted by the Criminal Court, therefore, the Board has power to withheld the pension of the petitioner by exercising the powers given under Rule 9(1) of the Pension Rules of 1976. 11
13. The petitioner has filed rejoinder. In the rejoinder the petitioner has stated that the petitioner has retired in the year 1998 i.e. prior to coming into force of the amendment in the Pension Rules by issuing notification dated 13/09/2004, thus, this amended provision would not be applicable in the case of the petitioner. The petitioner has further stated that in the case of one B.K. Mehta who has been convicted by the Special Court, his pension was withheld. He filed Writ Petition No.2608/2012 before the Indore Bench of this Court and the Indore Bench of this Court after hearing the petitioner of that case, disposed of the petition vide order dated 31/03/2012 with direction to the petitioner to move an application to the competent authority. After submitting the application, the respondents have considered the application and after reviewing withholding of entire pension order, revised/modified to the extent of withdrawal of 50% of the pension. The petitioner submits that his case is also identical in nature, therefore, the same benefit be extended towards the petitioner. Learned senor counsel for the petitioner further relies upon the judgment passed by the Chhattisgarh High Court in the cases of Jagatnarain 12 Tripathi Vs. State of Chhattisgarh, reported in 2009(3) MPHT 81 and in the case of Ramadhar Singh Vs. State of Chhattisgarh and others, reported in 2014 (3) MPHT 36 (CG). He also relies upon the judgment delivered by the Apex Court in the case of UCO Bank & others Vs. Rajendra Shankar Shukla passed in Civil Appeal No.2693/2013 decided on 15/02/2018 and the judgment passed by the Apex Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Shrivastava and another, passed in Civil Appeal No.6770/2013 decided on August 14,2013.
14. Heard learned counsel for the parties and perused the record. In the present case, the petitioner was initially appointed on the post of Graduate Trainee in respondent - Board on 27/07/1964. He was promoted from time to time and at the time of his retirement, the petitioner was holding the post of Executive Director in the respondent-Board. The petitioner has retired vide order dated 9/6/1997 w.e.f. 31/01/1998. Madhya Pradesh State Electricity Board has adopted the Pension Rules of 1976 vide notification dated 03/04/1978. After nine years of his retirement on the basis of 13 certain complaints made of irregularities in purchase proposal for procurement of energy meters of the year 1997, the matter was investigated by the Lokayukt and the challan was filed against five officers of the Board including the petitioner under Prevention of Corruption Act. Thereafter the trial Court has conducted trial and vide its judgment dated 15/12/2011 convicted all the five persons including the petitioner and directed to undergo Rigorous Imprisonment for a period of three years and fine of Rs.1,00,000/- and Rigorous imprisonment for six months and fine of Rs.1,000/- respectively on each count. Being aggrieved by the said judgment, the petitioner has filed Criminal Appeal No.82/2012 before this Court and this Court vide order dated 6/1/2012 has suspended execution of jail sentence until further orders. On account of his conviction by the trial Court, the respondents have passed order dated 24/2/2012 thereby withholding the pension of the petitioner in exercise of powers given under Rule 9(1) of the Pension Rules of 1976. Rule 9 of the Pension Rules of 1976 reads as under : 14
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];15
(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 :-16
(i) shall not be instituted save with the sanction of the Governor;
(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 17 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 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 :
18
[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-19
(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 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 20 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 21 which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."
As per Rule 9(1), the Governor has power to withhold the pension, however, the Board has substituted the word "Full Board" in Rule 9(1) of the Pension Rules of 1976 in place of "Governor". The said order has been issued by the board under the signature of the Additional Secretary.
15. Pension Rules of 1976 are enacted by the Legislature which have been adopted by the respondent-Board, therefore, any amendment in the said rules can be made only by amending the said rules by the Legislature, thus, the Additional Secretary has no power to amend the said rules by issuing administrative order. In the present case, word "Governor" has been replaced by the word "Full Board" by issuing notification dated 13/09/2004. At that time, the petitioner has already retired in the year 1998, therefore, the said amendment cannot be applicable to the petitioner with 22 retrospective effect. The respondent-Board or any other authority even under the delegated power is not act to add or substitute any word either any of the provision or rule or condition unless it is passed by the appropriate legislature.
16. The impugned order has been passed by the respondents without giving any opportunity of hearing or any issuing any show cause notice. For the said purpose, learned counsel for the respondents relies upon the Regulations framed by the Board and he submits that as per Regulation 'Kha', published in the gazette on 04/09/2001, an employee against whom a departmental enquiry has not been initiated and he is convicted by the Criminal Court, then the Board is empowered to withhold his pension and in such cases, an opportunity of hearing is not required to be afforded. The said order was issued in the year 2002 and was made applicable w.e.f.15/04/2001 and prior to coming into force of this Regulation, the petitioner has already retired in the year 1998, therefore, the said Regulation would not be application in the case of the petitioner retrospectively. 23
17. The Chhattisgarh High Court in the case of Jagatnarain Tripathi (supra) in para 12 and 13 has held as under :
"12. In the instant case, there is nothing on record to establish that anticipatory pension sanctioned to the petitioner, which was subsequently withheld for the present until further orders by the impugned order, was passed after affording opportunity of hearing to the petitioner. The petitioner was also not paid minimum pension for which he was entitled in accordance with Rule 8 of the Rules, 1976 from the year 2000.
13. It is also settled law that the pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof is to be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. [State of Kerala Vs. M.Padmanabhan 24 Nair, (1985) 1 SCC 429; R. Kapur Vs. Director of Inspection (Printing & Publication) I.T., (1994) 6 SCC
589."
As per the said judgment, before withholding the pension, the respondents are required to issue notice or give opportunity of hearing to the employee. It has been held that the pension and gratuity are not in any manner to be suspended as they are valuable right of an employee.
18. Similarly, the Chhattisgarh High Court in the case of Ramadhar Singh (supra) in para-15 has held as under :
"15. That apart, the authority had a discretion under the Rules to permanently withhold or withdraw the pension or part thereof or to make an order for specified period and the decision was not mandatory. Thus, a variation in the order was possible and in such situation, application of mind was required before reaching to a final decision as to which kind of order would be 25 befitting, which cannot be arrived at without hearing the grievances of the petitioner who may take an appropriate defence for not passing such an order or praying for passing an order, which may be less harmful to him. We are of the view that in the above facts and circumstances of the case, particularly in the light of the provisions of Rule 8(1) and (2) and Rule 9(1), the concerned authority was required to give an opportunity of hearing to the appellant/petitioner before passing the impugned order dated 7/9/2000 (Annexure P-5). Thus, the impugned order was passed in violation of principles of natural justice, which cannot be sustained."
Thus, as per the said judgment, an opportunity of hearing is required to be issued by the respondent-Board before withholding his pension.
19. The Apex Court in the case of Rajendra Shankar Shukla (supra) in para-18 has held as under : 26
"18. In dealing with these Regulations, it was observed by the Court in paragraph-22 of the Report as follows :-
"The respondent, therefore,
having been allowed to
superannuate, only a
proceeding, inter-alia, for
withholding of this pension
under the Pension Regulations
could have been initiated
against the respondent.
Discipline and Appeal
Regulations were, thus not
attracted. Consequently the
charge-sheet, the enquiry report and the orders of punishment passed by the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction."27
20. Similar view was also taken by the Apex Court in the case of Jitendra Kumar Srivastava and another (supra) in para-12 which reads as under :
12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:
"29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.28
30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered 29 to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.
31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.30
32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the 31 same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even 32 though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or 33 denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 :34
[1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Subarticle (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) 35 there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law".
Thus, as per this judgment, the pension granted to a public servant on his retirement is a property and he could be deprived of the same only by an authority of law and pension does not cease to be property on mere denial or cancellation of it.
21 The Full Bench of this Court in the case of Ram Sewak Mishra Vs. State of M.P.and another, reported in 2017 (4) MPLJ 428 has held as under :
"Relationship between employer and employees before the superannuation is governed by the Service Rules. If the rules do not permit any opportunity of hearing, the same can be excluded. It may 36 be required in case of serving officer as it is not in public interest to allow a tainted person in public employment. But after retirement, the pensioner is entitled to pension in view of his past service under the State. An employee earns his pension. Pension is not a bounty, but a benefit earned by him by serving State for many years. The deprivation of such pension affects civil rights of the petitioner, the means of survival. Though sub- rule (2) of Rule 8 of the Pension Rules is silent about opportunity of hearing, but neither the dispensing with an opportunity of hearing is urgent nor is any other purpose expected to be achieved by denying the benefit of opportunity of hearing. If an opportunity of hearing is granted, an employee can point out the mitigating the family circumstance, the role in the criminal trial which led to his conviction or other circumstances as to why the pension should not be stopped and that too for life.37
Therefore, in case of pensioner, the rule of natural justice would warrant an opportunity of hearing, at least of serving a show cause and elucidating the reply of the petitioner and thereafter pass an order as may be considered appropriate by the authority so as to enable the appellate authority or the judicial Courts to test the legality of the same while exercising the powers of the judicial review. Thus, a show cause notice is required to be given to the retired government servant convicted by the Criminal Court."
Thus, as per this judgment, even though under Rule 8, there is no provision for giving any opportunity of hearing before withholding the Pension, but, it is the duty of the employer to issue a show cause notice to the employees before withholding his pension. In the present case, the Regulation which is framed by the respondents in 2001 is not applicable in the present case of the petitioner. However, in light of the aforesaid judgment of Full Bench of this Court, an 38 opportunity of hearing is required to be issued to the petitioner before withholding his pension.
22. Thus, in light of the aforesaid discussion, the writ petition is allowed. The impugned order dated 24/02/2012 is hereby quashed. The respondents are directed to release the pension to the petitioner within a period of three months along with arrears from the date of receipt of certified copy of this order.
(Ms. Vandana Kasrekar) JUDGE ts Digitally signed by TULSA SINGH Date: 2018.05.15 16:14:10 +05'30'