Madhya Pradesh High Court
Ram Sewak Mishra vs The State Of Madhya Pradesh on 10 April, 2017
HIGH COURT OF MADHYA PRADESH JABALPUR
WRIT PETITION NO. 1353 of 2011
RAM SEWAK MISHRA
Vs.
THE STATE OF MADHYA PRADESH & ANOTHER
For Petitioner : Mr. Jai Shukla, Advocate
For Respondent/State : Ms. Sonali Shrivastava, P.L.
Order posted for: 10.04.2017.
(SUJOY PAUL)
JUDGE
HIGH COURT OF MADHYA PRADESH JABALPUR
WRIT PETITION NO. 1353 of 2011
RAM SEWAK MISHRA
Vs.
STATE OF MADHYA PRADESH & ANOTHER
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For Petitioner : Mr. Jai Shukla, Advocate
For Respondent/State : Ms. Sonali Shrivastava, P.L.
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ORDER
( 10.04.2017.) Per : Sujoy Paul J.
This petition filed under Article 226 of the Constitution of India, takes exception to the order dated 15.03.2010 (Annexure-P/2), whereby the respondents have withheld 100% pension of the petitioner on permanent basis.
2. The admitted facts between the parties are that the petitioner retired on attaining the age of superannuation on 31.12.2004. The petitioner was an accused in Criminal Case No.21/2004. The said criminal case was decided on 28.07.2009 and the petitioner was held guilty for the offences under Sections 7, 13(1)(d) & 13(2) of the Prevention of Corruption Act. Against this judgment of Special Court dated 28.07.2009, the petitioner preferred an appeal before this Court (Criminal Appeal No.1490/2009). This Court suspended the sentence but has not stayed the conviction.
3. Mr. Jai Shukla, leaned counsel for the petitioner advanced singular contention. By placing reliance on the judgment of Indore Bench reported in 2017 (1) MPLJ 640 (Dau Ram Maheshwar vs. State of M.P. & another), it is submitted that as per Rule 8 of M.P. Civil Services (Pension) Rules 1976 (for brevity "the Pension Rules"), the respondents should have issued a show cause notice before taking decision regarding stoppage of pension.
4. Prayer is opposed by Ms. Sonali Shrivastava, learned P.L. for the respondent/State.
5. It is seen that the order of Indore Bench in Dau Ram Maheshwar (Supra) is based on the judgment of Chhattisgarh High Court in the case of Jagatnarain Tripathi vs. State of Chattisgarh & others reported in 2009 (3) MPHT 81 (CG). In Dau Ram Maheshwar (Supra) it was held that in view of the judgment of Chhattisgarh High Court and keeping in view the Rule 8 of Pension Rules, the Court is the of considered opinion that a proper notice should have been given to the petitioner as required under Rule 8 of the Pension Rules.
6. Rule 8 of Pension Rules reads as under:
"8. Pension subject to future good conduct (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
2(b) The pension sanctioning authority may, by order in writing, withhold or withdraw a pension or a 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 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 1[appointing 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) Where the authority competent to pass an order under sub-rule (1) is the President, the Union Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-rule (1), passed by any authority other than the President, shall lie to the President and the President shall, in consultation with the Union Public Service Commission, pass such orders on the appeal as he deems fit.
EXPLANATION. - In this rule, -
(a) the expression `serious crime' includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923);
(b) ........."
[Emphasis Supplied] Rule 8 (1)(b) provides that pension sanctioning authority may withheld or withdraw a pension or part thereof, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Sub-Rule (2) of Rule 8, in no uncertain terms provides 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 (3) of Rule 8 makes it crystal clear that in a case not covered under sub-rule (2), if the competent authority considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1), issue notice to the pensioner about the proposed action. A careful reading of sub-rule (3) on the strength of which judgment of Dau Ram Maheshwar (Supra) was passed will make it clear that the rule does not cover such cases which are covered under Sub-rule (2) of Rule 8. At the cost of repetition, sub-rule (2) deals with cases of conviction of pensioner of a serious crime. Sub-rule (3) consciously employs the word "guilty of grave misconduct" in place of "conviction of serious crime". Putting it differently, the impact of sub-rule (2) and sub-rule (3) are different and both the sub-rules are based on different eventualities. The sub-rule (2) is confined to the cases in which pensioner is convicted for the serious crime, whereas sub-rule (3) is related to such cases where pensioner is prima facie found guilty of grave misconduct.
7. In Dau Ram Masheswar (Supra), this Court came to hold that Rule 8 clearly and unambiguously provides that (1) once pension of the employee is fixed after his retirement, the same cannot be reduced below minimum pension as determined by the State Government from time to time, and (2) where withdrawal/withholding of pension is based with on account of conviction in serious offence or grave misconduct, the same is to be done in accordance with the directions in the judgment of conviction and where there is no such directions, the pension can be withheld or withdraw only after affording opportunity of hearing to the retired employee. It appears that this Court has mixed two different aspects which are differently dealt with in the rules. Sub-rule (2) of Rule 8 is confined to cases of conviction and this rule nowhere provides that on conviction, the retired employee should be given opportunity of hearing before taking action for reduction/stoppage of pension. It only provides that decision is to be taken "in the light of judgment of Court relating to such conviction". In my view, sub-rule (2) does not envisage any opportunity of hearing in cases of conviction of employee in serious crime. The only thing which requires consideration is the nature of serious crime and its impact for the purpose of deciding the question of stoppage/withholding of pension. Sub-rule (3) is confined to the cases where employee is held to be prima facie guilty of "grave misconduct". Thus, "conviction" and "misconduct" are dealt with by separate sub-rules and only in cases of grave misconduct, issuance of notice and providing opportunity is the requirement of the rule. However, in Dau Ram Maheshwar (Supra), this Court has considered both the eventualities as one and came to hold that even in cases of conviction, opportunity of hearing is required.
8. It is apposite to mention here that in Laxmi Narayan Hayaran vs. State of M.P. & another reported in 2004(4) MPLJ 555, a Full Bench of this Court considered the issue "whether an order under Rule 19(i) of State CCA Rules should be preceded by a hearing or affording opportunity of hearing to the Government Servant to make submission regarding quantum of penalty". There were two judgments of this Court on the said point wherein it was held that such opportunity is required. These are 1978 MPLJ 57 (Tikaram Windwar vs. Registrar Co-operative Societies) and 2003 (2) MPLJ 485 [State of M.P. vs. Dr. Sheetal Kumar Bandi. The judgment of Supreme Court in the case reported in AIR 2001 SC 1092 [Union of India vs. Sunil Kumar Sarkar] was also considered by the Full Bench while considering the aforesaid question.
9. The Full Bench overruled the decisions of Division Bench in the case of Tikaram Windwar (Supra) and Dr. Sheetal Kumar Bandi (Supra), in so far as they hold that the delinquent employee should be given an opportunity to putforth his view as to the penalty proposed to be imposed. It was held that where the conviction is on the ground of corruption, there can be no two views that imposition of punishment by way of dismissal is just and proper and not excessive.
10. The only difference between the case of a convicted existing employee and convicted retired employee is that they are governed by different set of rules for the purpose of imposition of punishment. For existing employee, the punishment can be determined as per the State CCA Rules, whereas for retired employee, it is the Pension Rules, which will hold the field. Interestingly, neither in Rule 19(i) of CCA Rules nor in Rules 8 & 9 of the Pension Rule it is made obligatory to issue show cause notice for the proposed action in cases of convicted employee. This Full Bench judgment in the case of Laxmi Narayan (Supra) was not brought to the notice of this Court while deciding the case of Dau Ram Maheshwar (Supra).
11. In view of Rule 8 and judgment of Full Bench in Laxmi Narayan (Supra), in my view the order of Dau Ram Maheshwar (Supra) requires reconsideration. Accordingly, in the fitness of things, I deem it proper to refer this matter to Hon'ble The Chief Justice for constitution of a Larger Bench as per the relevant provision of the High Court Rules. The Full Bench may consider following questions:
(I) Whether a show cause notice/opportunity of hearing is required to be given to the Retired Government Servant who is convicted of a serious crime by the Court of law?
(II) Whether the view taken in Dau Ram Maheshwar (Supra) is correct in view of Rule 8 of the Pension Rules?
12. The Registry is directed to place this matter before Hon'ble The Chief Justice for consideration.
(SUJOY PAUL) JUDGE s@if