Madhya Pradesh High Court
Kamata Prasad Soni vs The State Of Madhya Pradesh on 5 May, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 Writ Petition No.10141 of 2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 05th OF MAY, 2022
WRIT PETITION NO.10141 OF 2022
Between:-
Kamata Prasad Soni,
S/o. Late Shri Mahaveer Prasad Soni,
Aged about 66 years,
Occupation- Retired Government Servant,
Current Occupation-Practicing Advocate,
R/o. Karaundiya South, Gopaldas Road,
Sidhi, District Sidhi (M.P.)
.....PETITIONER
(BY SHRI SUGHOSH BHAMORE, ADVOCATE)
AND
1. State of Madhya Pradesh, Through Principal
Secretary, Revenue Department, Government of
Madhya Pradesh, Mantralaya, Vallabh Bhawan,
Bhopal (M.P.)
2. Under Secretary, Revenue Department,
Government of Madhya Pradesh
3. Additional Chief Secretary and Convener,
Permanent Committee of Council of Ministers
(M.P.)
4. Collector,
District Sidhi
5. District Pension Officer,
District Sidhi (M.P.)
......RESPONDENTS
(BY SHRI PIYUSH JAIN, GOVERNMENT ADVOCATE)
2 Writ Petition No.10141 of 2022
This petition coming on for hearing this day, the
Court passed the following:
ORDER
By the instant petition filed under Article 226 of the Constitution of India, the petitioner is challenging the order dated 25.02.2020 (Annexure P/9) passed by the respondent no.2, whereby applying the provisions of Rule 9 of M.P. Civil Services (Pension) Rules, 1976 (for short, 'Rules, 1976'), his pension has been withdrawn.
2. To resolve the controversy involved in this case, certain important facts which are required to be considered in nutshell are that while working with the respondent/Department, a criminal case got registered against the petitioner vide Crime No. 350/2013 under the provisions of Prevention of Corruption Act on 22.10.2013 in which a challan was also filed on 27.07.2014 before the Additional District & Sessions Judge, Sidhi. Thereafter, the petitioner was placed under suspension vide order dated 08.08.2014 and during suspension, he got retired on 31.08.2015. In the aforesaid case, the trial Court passed a judgment on 07.09.2017, whereby the petitioner was found guilty for the offence punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 and sentenced thereunder to suffer R.I. for 3 years with fine of Rs.10,000/-, in default further S.I. for three months and R.I. for 3 years with fine of Rs.10,000/-, in default further S.I. for three months respectively. Both the sentences were directed to run 3 Writ Petition No.10141 of 2022 concurrently.
3. Against the order dated 07.09.2017, the petitioner preferred an appeal before the High Court which got registered as Criminal Appeal No. 3782/2017 wherein vide order dated 04.10.2017, the Court suspended the petitioner's sentence awarded to him. The appeal is pending before the High Court.
4. Thereafter, the petitioner requested the respondent/Department for releasing his provisional pension, but nothing has been done and all of a sudden, he came to know about the fact that under the provisions of Rule 9 of the Rules, 1976, his pension has been withdrawn by the respondent/Department. Hence, this petition.
5. Learned counsel for the petitioner has assailed the impugned order mainly on the grounds that before passing the impugned order, neither any departmental enquiry was conducted nor any opportunity of hearing was provided to the petitioner. In support of his contention, he has placed reliance upon a Division Bench decision passed by the Gwalior Bench of this Court in W.A. No. 875/2020 (Radha Krishna Sharma Vs. State of M.P. and Others) in which, it is observed that before exercising the power under Rule 9 of Rules 1976, prior opportunity of hearing is a mandatory requirement and, therefore, petitioner sought quashment of the impugned order passed by the authority. He submits that in view of the law laid down by the Larger Bench of this Court in case of Lal Sahab Bairagi Vs. State of M.P. and Others reported in 4 Writ Petition No.10141 of 2022 2020(2) M.P.L.J. 551, it is clear that the order has not been passed under sub-rule (2) of Rule 8 whereas it has been passed by the Governor exercising the power provided under Rule 9 and, therefore, in view of the law laid down by the Full Bench itself, the petitioner's case cannot be decided.
6. Shri Piyush Jain, learned Govt. Advocate appearing for the respondents/State has relied upon an order passed by the Division Bench recently in W.A. No. 803/2017 (Santosh Kumar Seetha Vs. The State of M.P. and Others) decided on 22.04.2022 in which the Division Bench has taken a view relying upon the Larger Bench judgment of this Court, that no prior opportunity is required to be given while exercising the power provided under Rule 9 of the Rules, 1976.
7. Considering the rival submissions of learned counsel for the parties and perusal of record, the factual position in this case is undisputed except the fact that though the impugned order has been passed on 25.02.2020, but it was never communicated to the petitioner and only under the Right to Information Act, the same was supplied to him vide letter dated 07.02.2022.
8. The Division Bench in the case of Radha Krishna Sharma (supra) has not taken note of the decision of Larger Bench passed in case of Lal Sahab (supra) wherein following questions have been emerged before the 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 5 Writ Petition No.10141 of 2022 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 cause notice prior to passing of an order in terms of Rules 8 and 9 of the Pension Rules or 1976, in cases of withdrawal of pension or part thereof on account of conviction in a criminal case?"
The Larger Bench in the aforesaid case, relying upon the Supreme Court decision in case of Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 has held that the principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma. The Supreme Court in the case of Tulsiram Patel (supra) has held that under the circumstances when the employee is convicted and power is to be exercised under sub-rule (2) of Rule 8 or Rule 9 of Pension Rules, 1976, the principles of natural justice are not required to be followed. The Larger Bench has clearly laid down that under the provision of sub-rule(2) of Rule 8, it is clear that pension is subject to future good conduct of an employee and finally answered the questions referred to it in the following manner:-
"(i) The principles of natural justice are 6 Writ Petition No.10141 of 2022 specifically and expressly excluded and have no application to the cases falling under Rule 8(2) of 1976 Rules in view of the opening words of Rule 8(3) of the Rules of 1976, therefore, when an action is taken against the pensioner under Rule 8(2) of the Rules of 1976, no notice is required to be issued to the pensioner nor can he insists upon prior opportunity of representation on the strength of the principles of Natural Justice.
(ii) The decision of the Full Bench in the case of Ram Sewak Mishra (supra) and the decision in the case of Dau Ram Maheshwar (supra) are hereby overruled.
(iii) It is held that the authority is not required to issue notice or afford prior opportunity of representation before passing the order under Rule 8(2) of the Pension Rules of 1976, in respect of a pensioner who has been convicted in the criminal cases. However, the power of the authority to take action under the Rules would be subject to the guidelines as stated by the Supreme Court in the case of Tulsiram Patel (supra) and reiterated by this Bench in the preceding paragraphs of this judgment.
9. The Division Bench, later on, in case of Santosh Kumar Seetha (supra) dealing with the provisions of Rule 9 of Rules, 1976 relying upon the Larger Bench decision has further held that no prior notice or opportunity of hearing is required while exercising the power provided Rule 9 of Rules, 1976, if pension is to be withdrawn due to conviction of an employee.
10. Since the Division Bench in the case of Radha Krishna Sharma (supra) has not taken note of the decision of Larger Bench on the same issue, therefore, in my opinion, the 7 Writ Petition No.10141 of 2022 decision of Division Bench is per incuriam and has no binding effect over this Court.
11. I do not find substance in the submission made by learned counsel for the petitioner that the Larger Bench in fact has not dealt with the specific provision of Rule 9 but has confined itself to sub-rule (2) of Rule 8 of Rules, 1976 which is clear from the answer to question no.3 which was referred before it.
12. The Division Bench in case of Radha Krishna Sharma (supra) even has not referred this Larger Bench decision. There might be a situation that nobody placed the aforesaid judgment before the Division Bench. It is something surprising that the-then Additional Advocate General appeared on behalf of the State failed to point out the decision of Larger Bench on this issue. Had it been considered and distinguished, then I can understand that the order passed by the Division Bench would have the binding effect.
13. I do not find that the latest Division Bench decision in case of Santosh Kumar Seetha (supra) considering this aspect that even while exercising the power provided under Rule 9 of Rules, 1976, no prior opportunity of hearing is required if pension is to be withdrawn because of conviction of the employee, based upon the analogy drawn by Larger Bench and as such, I do not find any reason to take a different view then the view already taken by the Larger Bench and further taken by the Division Bench in case of Santosh Kumar Seetha (supra).
8 Writ Petition No.10141 of 202214. So far as the submission made by learned counsel for the petitioner that in case of sub-rule (2) of Rule 8, it is the pension sanctioning authority which can exercise the power and according to him, Governor is not his pension sanctioning authority and, therefore, Rule 9 has wrongly been exercised in his case is concerned, I am not convinced with the same because the core question involved in the present case is whether withdrawal of pension due to conviction of an employee requires prior opportunity of hearing or not. The analogy is same that no prior opportunity of hearing is required in case if order is passed under sub-rule (2) of Rule 8 or even Rule 9 of the Rules, 1976. Therefore, in my opinion, the order impugned order does not suffer from any irregularity.
15. Thus, the writ petition is without any substance and is accordingly dismissed.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO DN: c=IN, o=HIGH COURT OF MADHYA SATYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=fd8212036fdbf89fa7ca6dd1d455 61a7803f38162f693a3cbabf7e416131fa7f, SAI RAO pseudonym=6D368848B6731EB999EE2C5 4F154A7245187F1E5, serialNumber=D71B7C71D530E3C544E8E BF848D8818167BECB37EB09E44776D066 7970EED1E9, cn=SATYA SAI RAO Date: 2022.05.13 17:32:47 +05'30'