Madhya Pradesh High Court
Gyaneshwar Choudhary vs The State Of Madhya Pradesh on 23 September, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 23rd OF SEPTEMBER, 2022
WRIT PETITION No. 13469 of 2021
BETWEEN:-
1. GYANESHWAR CHOUDHARY S/O LATE
RAGHUNATH CHOUDHARY, AGED ABOUT 71
Y E A R S , OCCUPATION: RETIRED FROM
MUNICIPAL CORPORATION BHURANPUR R/O
HOUSE NO. B- 26 WARD NO. 38 SANJAY NAGAR
RASTIPUR BURHANPUR DISTT. BURHANPUR
(MADHYA PRADESH)
2. AKILUDDIN KAAJI S/O LATE HAFIZUDDIN
KAAJI, AGED ABOUT 71 YEARS, OCCUPATION:
RETIRED FROM MUNICIPAL CORPORATION
BURHANPUR 5270 SYED WADA SHAIKPURA
CHOPA TEH. CHOPDA (MAHARASHTRA)
3. SATISH KUMAR KATIYARE S/O LATE
SHYAMRAO KATIYARE, AGED ABOUT 68
Y E A R S , OCCUPATION: RETIRED FROM
MUNICIPAL CORPORATION BURHANPUR
PRATAPURA PS SHIKARPURA TEH. AND DISTT.
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI AISHWARYA SAHU, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY URBAN
DEVELOPMENT AND HUSINGH DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. COMMISSIONER URBAN ADMINISTRATION
AND DEVELOPMENT DEPARTMENT NAGAR
PALIK BHWAN SHIVAJI NAGAR BHOPAL
(MADHYA PRADESH)
3. COLLECTOR BURHANPUR DISTT. BURHANPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 9/28/2022
2:11:54 PM
2
4. THROUGH ITS COMMISSIONER MUNICIPAL
CORPORATION DISTT. BURHANPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AMAN PANDEY, PANEL LAWYER )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioners have filed this petition under Section 226 of the Constitution of India while praying for following reliefs:-
(i) To issue a writ in the nature of certiorari to quash the impugned order dated 29.08.2020 passed by respondent No.1 contained as Annexure P/6.
(ii) To issue a writ in the nature of mandamus to command the respondents to allow the pension of the petitioners continue.
(iii) Any other relief which this Hon'ble Court deems fit may also granted including cost of petition."
Learned counsel for the petitioners contends that the petitioners herein were convicted vide judgment dated 11.10.2018 contained in Annexure P/1 passed in RCT No.359/2006 by Chief Judicial Magistrate, Burhanpur. Assailing the said judgment, the present petitioners have preferred an appeal and in the appeal, the sentenced imposed upon the petitioners has been suspended. Thereafter, in the absence of any proposal by the Municipal Corporation Burhanpur, the petitioners have been confronted with the impugned order dated 29.08.2020 contained in Annexure P/6 by which under Rule 9 of Madhya Pradesh Civil Services (Pension) Rules, 1976, the entire pension of the petitioners have been withheld. Thus, petitioners are assailing the order dated 29.08.2020 (Annexure P/6) in the present petition.
Learned counsel for the petitioners further contends that in the present case, there was no proposal by the Municipal Corporation to the State Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/28/2022 2:11:54 PM 3 Government to initiate an action in terms of Rule 9 of Pension Rules of 1976. Counsel contends that the Apex Court in the case of Rameshwar Yadav vs. Union of India reported in 1989 Supp. (2) SCC 565 has held that the authority is required to consider the nature of offence and also the circumstances under which the alleged offence was committed. Counsel for the petitioners also submits that Authority is further required to take into consideration the proposed hardship which is to be faced by the dependents of the employee whose pension is going to be withheld. Counsel further submits that such exercise is conspicuously missing in the present case inasmuch as, a perusal of the impugned order does not reveal that there is any discussion as regards the nature of offence, for which the petitioners have been convicted. Counsel also submits that this Court in the case of Mahima Chandra Gangwar vs. State of M.P. (W.P. No.3310/2011) while taking into consideration the nature of offence, has quashed the order of withholding of pension which was passed under Rule 8 of the Pension Rules, 1976. Counsel for the petitioners further submits that this Court while placing reliance upon the decision of the Apex Court in the case of State of Madhya Pradesh and Others vs. Hazarilal reported in (2008) 3 SCC 273, concluded that in the case of Hararilal (supra), the petitioners therein were convicted under Section 323 r/w 34 of IPC and therefore the relief in the case of Mahima Chand Gangwar (supra) was also extended to the petitioners therein inasmuch as, they were convicted under 324 read with Section 34 of the IPC. Counsel for the petitioners contends that the petitioners herein have been convicted under Sections 409, 420 and 477(A) read with Section 120-B of the IPC, therefore, looking to the overt act attributed to the present petitioners, the order of withholding of the entire pension could not have been passed inasmuch as, Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/28/2022 2:11:54 PM 4 upon attaining the age of superannuation, the petitioners are in dire need of the funds and therefore, the impugned order has bearing on the entire family of the petitioners and thus, submits that impugned order deserves to be quashed in the light of the law laid down by the Apex Court.
Per contra, learned counsel for the respondents submits that the full bench of this Court in the case of Lal Sahab Bairagi vs. State of M.P. and others reported in 2020 (2) MPLJ 551, while dealing with the provisions of Rule 8 of Pension Rules 1976 which are almost identical to the Rule 9 of Pension Rules, 1976 has laid down that an order of withholding of pension, does not stipulate any opportunity of hearing to the employee concerned and thus, the Authority while taking into consideration the misconduct on the part of the petitioner inasmuch, as the allegation pertains to discharge of official duties, has rightly passed the order impugned which is being sought to be assailed in the present petition. The counsel for the respondents submits that as against the conviction, the appeal preferred by the petitioners is still pending and only sentence of the petitioners has been suspended and not the conviction. Therefore, the petitioners are not entitled for any relief inasmuch as, the order has been passed by his Excellency the Governor in purported exercise of powers conferred under Rule 9 of Pension Rules, 1976. Hence, counsel submits that no interference is warranted in the present case.
Heard the rival submission of both the parties and perused the record. In order to appreciate the contentions advanced by the counsel for the petitioners, it would be appropriate to consider the allegations which were levelled against the petitioners by the State Economic Offices Bureau which ultimately resulted into conviction of the petitioners.
Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/28/2022 2:11:54 PM 5A perusal of the judgment of trial Court dated 11.10.2018 reflects that the petitioners herein were working as employees of the Municipal Corporation, Burhanpur and in discharge of their duties, they were found guilty of misconduct which ultimately caused loss to public exchequer. After trial, the petitioners have been convicted under Sections 409, 420, 477 (A) read with Section 120-B of the IPC. Thus, the case of the petitioners falls within the ambit of moral turpitude and the petitioners cannot claim parity with the judgment in Mahima Chand Gangwar case inasmuch, it was a case where the petitioner therein was convicted under Section 324 of IPC and it was a dispute between the private parties. The offence in question in that case had no nexus with discharge of official duties whereas in the present case, the present petitioners have been found guilty of the offences, which the petitioners alleged to have committed during the course of discharge of their official duties.
Moreover, only the sentence part has been suspended by the Appellate Court, therefore, on the strength of the order of suspension of sentence, the petitioners herein cannot question the impugned order dated 29.08.2020 (Annexure P/6) which has been passed under Rule 9 of Pension Rules, 1976.
A perusal of the impugned order clearly reflects that while taking into consideration the petitioners conviction under the aforesaid provisions, a decision has been taken to withheld the entire pension of the petitioners under Rule 9 of the Pension Rules, 1976. Therefore, the conviction of the petitioners is ultimately ensued in passing of the impugned order dated 29.08.2020 contained in Annexure P/6, which the considered opinion of this Court requires no interference inasmuch as, the petitioners have failed to demonstrate that there is any violation of statutory provisions or the order is vulnerable on the ground Signature Not Verified of competency.
Signed by: SAVITRI PATEL Signing time: 9/28/2022 2:11:54 PM 6The petitioners contention is that the Municipal Corporation did not forward the cases of the petitioners to the Government, thus in absence of any recommendation by the Municipal Corporation, Burhanpur the impugned order could not have been passed inasmuch as, the Municipal Corporation Burhanpur is principal Employer of the present petitioners. The contention of the petitioners is misconceived inasmuch, as the petitioners have no where disputed that the provisions of the Rules of 1976 are applicable to the present petitioners and the Authority to pass an order under Rule 9 of Pension Rules, 1976 is clearly mentioned in the statutory provisions and competency of the same has not been disputed in the present petition.
Moreover, the Authority has considered the provisions under which the petitioners have been convicted and apparently the offences against the petitioners are serious in nature inasmuch as, the petitioners have been found guilty of misconduct during the discharge of their official duties.
Thus, the reliance by the petitioners on the decision of Rameshwar Yadav (supra) is misplaced.
Thus, in the view of the aforesaid analysis, there is no substance in the present petition, accordingly, the same stands dismissed.
(MANINDER S BHATTI) JUDGE spi Signature Not Verified Signed by: SAVITRI PATEL Signing time: 9/28/2022 2:11:54 PM