Madhya Pradesh High Court
Badal Singh Yadav vs State Of M.P. on 10 July, 2018
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THE HIGH COURT OF MADHYA PRADESH
W.P. No. 9098/12
(Badal Singh Yadav Vs. State of M.P.)
Gwalior, Dated 10/07/2018
Shri MPS Raghuvanshi, learned counsel for the petitioner.
Ms. Ami Prabal, Deputy Advocate General for the
respondent/State.
Learned counsel for the rival parties are heard. Writ jurisdiction of this court is invoked by a senior citizen who had retired from the post of Multi Purpose Worker on attaining the age of superannuation on 31/7/09. Pertinently the petitioner was earlier placed under suspension on 7/5/05 vide Annexue P/1 for being arrested for more than 48 hours in connection with an offence of murder punishable u/S. 302 as a result of which he was paid 50% and thereafter, 75% as subsistence allowance. The criminal case was registered against the petitioner bearing No. 226/05 in which vide order dated 20/3/06, the petitioner was though acquitted of the offence of murder but was convicted for the offence punishable u/S. 325, 323/149 of IPC and sentenced to three years R.I.. against the said conviction and sentence, the appellant filed an appeal bearing Cr.A. No. 263/06 in which the sentence has been suspended by order dated 29/3/06 and the said criminal appeal continues to be pending till date. Petitioner however continued to be under suspension till attaining the age of superannuation on 31/7/11.
On his retirement, no amount towards his pension or gratuity was released, as a result of which petitioner filed present petition in which the State in its short reply assigned the reason of pendency of judicial proceedings against the petitioner as a cause for non grant of pension and pensionary benefits to the petitioner for which provision of Rule 64 of M.P. Civil Services (Pension) 2 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9098/12 (Badal Singh Yadav Vs. State of M.P.) Rules, 1976 are pressed into service.
After hearing learned counsel for the petitioner and the State, this court is of the considered view that this petition deserves to be allowed for the reasons infra.
For ready reference and convenience Rule 64 and Rule 9 (4) of M.P. Civil Services (Pension) Rules, 1976 are reproduced below:-
64. Provisional pension where departmental or judicial proceeding may be pending:- (1) (a) In respect of Government servants refer to in sub-rule (4) of rule 9 the Head of the office shall authorise the payment of provisional pension not exceeding the maximum pension and 50% of gratuity taking into consideration the gravity of charges levelled against such Government, which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date of retirement, up to the date immediately preceding the date of which he was placed under suspension.
(b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) Provisional gratuity shall be drawn on establishment pay bill and paid to retired Government servant by the Head of office after adjusting dues mentioned in sub-rule (2) of rule 60, under intimation to Audit Office. Payment of provisional pension/gratuity made under sub-rule (1) shall be adjusted against final retirement benefit sanctioned to such Government servant upon conclusion of such proceedings, but no recovery shall be made where the pension/gratuity finally sanctioned is less than the provisional pension/gratuity or the pension/gratuity is reduced or withheld either permanently or for a specified period.
9. Right of governor to withhold or withdraw pension:-
(1).........
(2)........3
THE HIGH COURT OF MADHYA PRADESH W.P. No. 9098/12 (Badal Singh Yadav Vs. State of M.P.) (3).........
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against which 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.
[provided that where pension has already been finally sanctioned to a Government 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 percent 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 25 th October, 1978, the first proviso shall have efffect 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," has been substituted:
Provided also that-
(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty percent 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 one year.
(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 4 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9098/12 (Badal Singh Yadav Vs. State of M.P.) shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of rule 43].
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Rule 64 of the Pension Rules applies to government servants covered by Rule 9(4) of Pension Rules. Reverting to Rule 9 (4), it is vivid that this rule relates to government servant who has superannuated and against whom departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-Rule (2) of Rule 9 would be entitled to provisional pension or death-cum-retirement gratuity provided under Rule 64. It is not disputed by the rival parties that petitioner is within the category of Government Servant who retired when judicial proceedings against him were pending in shape of Criminal Appeal No. 263/06.
As such it is evident that the petitioner was entitled to provisional pension and gratuity as provided in Rule 64 of Pension Rules.
Coming back to Rule 64, it is revealed that provisional pension not exceeding maximum pension and provisional gratuity not exceeding 50 % of gratuity after taking into consideration the gravity of the charges levelled against the Government Servant, becomes payable to the retired Government servant calculated on the basis of qualifying service rendered till the date of retirement and if the government servant was under suspension on the date of retirement then up to the date on which he was placed under suspension.
In view of above, it was incumbent upon State and its functionaries to calculate the qualifying service of the petitioner 5 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9098/12 (Badal Singh Yadav Vs. State of M.P.) based on the last salary drawn by the petitioner immediately before the date he was placed under suspension i.e. 7/8/09 and thereafter, compute the provisional pension and provisional gratuity, taking into consideration the gravity of charges levelled. From the record and from the reply of the State, it does not appear that any mind was applied by the authority as to what should be the quantum of provisional pension and provisional gratuity on the anvil of gravity of charges.
The State has come out with order dated 4/5/18 Annexure R/1 whereby it seems that the functionaries of the State realizing their mistake of not having released even the provisional pension to the petitioner, issued an order sanctioning provisional pension to the petitioner w.e.f. 1/8/11 and by subsequent order dated 4/5/18, provisional basic pension of Rs. 2450/- per month has been sanctioned by the State w.e.f. 1/8/11.
In response to the aforesaid order of provisional pension passed vide Annexure R/1 dated 4/5/18, learned counsel for the petitioner has not filed any rejoinder but orally submits that petitioner has not yet received any provisional pension.
Be that as it may, the provision of Rule 9 r/w 64 makes it clear that the provisional pension of a Government Servant who retired while being under the cloud of pending judicial proceedings is entitled to provisional pension which has now been granted by the competent authority after nearly seven years.
The petitioner was deprived of provisional pension for seven long years. Provisional pension w.e.f. 1/8/11 became the property of the petitioner deprivation of which without sanction of law amounts to breach of constitutional right under Article 300-A. In view of above, this court is of the considered view that 6 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9098/12 (Badal Singh Yadav Vs. State of M.P.) present petition deserves to be allowed with cost in the following terms:-
(1) It is hereby directed by issuing a writ of mandamus that the exact quantum of basic provisional pension due to the petitioner under Rule 64 be worked out by the competent authority within a period of two month from today after taking into account the gravity of offences alleged. The petitioner having been found guilty for offences punishable u/Ss. 325, 323/149 IPC but having been acquitted of charge u/S. 302 IPC.
(2) After working out the aforesaid quantum, arrears of provisional pension be calculated and released to the petitioner w.e.f. August 2011 till date within a period of 15 days thereafter alongwith interest @ 9% p.a. From 1/8/11 till payment.
(3) Till this order is complied with, petitioner shall be paid provisional monthly pension fixed by order dated 4/5/18 alongwith all admissible allowances within a period of 15 days from today.
(4) The respondents are further directed to ensure release of GPF, GIS, FBF and all other admissible retiral claims which have not yet been paid.
(5) The cost of the petition which is quantified at Rs.
20,000/- out of which Rs. 10,000/- shall be paid to the petitioner within one month while remaining Rs. 10,000/- shall be deposited within the same period with the Registry of this Court by the State for having failed to resolve the dispute of the petitioner at it's own level under it's Litigation Policy thereby compelling the petitioner to initiate this 7 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9098/12 (Badal Singh Yadav Vs. State of M.P.) avoidable piece of litigation and in the process wasting the precious time of this court with liberty to the State to recover the same from the erring officers after following due process of law.
(Sheel Nagu)
ojha Judge
Digitally signed
by YOGENDRA
OJHA
Date:
2018.07.17
14:51:08 -07'00'