Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1227 (MP)

Jeewan Lal Mewafarosh v. State of M. P.

2009-10-29

S.C.SHARMA

body2009
Judgment ( 1. ) The petitioner before this Court a retired Principal has filed this present writ petition being aggrieved by an action of the respondents in withholding the retiral dues. The contention of the petitioner is that he was appointed in the year 1986 Principal P.C. College, Datia and has attained the age of superannuation on 31st January, 2007 on completion of 62 years of age. The petitioner has further stated while he was in service a charge sheet was issued on 17.6.2005 alleging various misconduct and the petitioner did submit a reply to the charges levelled against him. The petitioners contention is that till date no final order has been passed by the respondents in the departmental enquiry pending against the petitioner. The petitioners contention is that as per the provisions of Madhya Pradesh Civil Services (Pension) Rules, 1976 he is entitled for full pension as the departmental enquiry proceedings have not been completed within a period of two years from the date of institution. The learned counsel for the petitioner has stated before this Court that the matter is squarely covered by a judgment delivered by this Court in W.P. No. 6786/2003 (Hiralal Dixit v. State of M.P. and others) wherein in the similar facts and circumstances as Departmental Enquiry was not concluded within a period of two years from the date of retirement of a Government servant, this Court has directed payment of all terminal dues to the petitioner therein. Learned counsel for the petitioner has also relied upon a judgment delivered by this Court in the case of State of M.P. and Others v. R.L. Ogale and others, 2006 (3) JLJ 218 =2006 (l)MPLJ 412. ( 2. ) The respondents State has filed a reply and does not dispute the factual aspect relating to departmental enquiry. ( 3. ) Heard learned counsel for the parties at length and perused the record. ( 4. ) In the present case, it is an admitted fact that the charge sheet was issued against the petitioner only on 17.6.2005 and the petitioner has attained the age of superannuation on 31.1.2007. The respondents State has not been able to conclude the departmental enquiry till date. ( 4. ) In the present case, it is an admitted fact that the charge sheet was issued against the petitioner only on 17.6.2005 and the petitioner has attained the age of superannuation on 31.1.2007. The respondents State has not been able to conclude the departmental enquiry till date. In the present case, it is also not in dispute that the matter is squarely covered by the judgment delivered by this Court in W.P.No. 6786/2003 (Hiralal Dixit v. State of M.P. and others) wherein the similar facts and circumstances as Departmental Enquiry was not concluded within a period of two years from the date of retirement of a Government servant therein, this Court has held as under :- "Heard learned counsel for the parties at length and perused the record. Sub-rule (4) of rule 9 of the Rules of 1976 reads as under : "9. Right of Governor to withhold or withdraw pension. (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 : 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 insitution of such proceedings" the words "with effect from a date not later than thirty days from the date of aforementioned," had been substituted: Provided also that - (a) If the departmental proceedings are not completed within a period of one year from the date of insitution 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 insitution 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 to the limit specified in sub- rule (5) of rule 43. ( 5. ) From a bare perusal of the aforesaid provision,it is clear that in case the departmental inquiry 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 period of two years. In the present case, the charge sheet was issued in the year 1991 and the petitioner has retired from service on attaining the age of superannuation with effect from 30th November, 1994. The departmental enquiry was concluded on 9th June, 2000, i.e. much after the prescribed period of two years as provided under the Rules of 1976. ( 6. In the present case, the charge sheet was issued in the year 1991 and the petitioner has retired from service on attaining the age of superannuation with effect from 30th November, 1994. The departmental enquiry was concluded on 9th June, 2000, i.e. much after the prescribed period of two years as provided under the Rules of 1976. ( 6. ) A Division Bench of this Court in the case of State of M.P. and others v. R.L. Ogale and others, 2006 (I) MPLJ 412 , has held in paragraphs 10, 11 and 12 as under: "In the present case, the original respondent retired on attaining the age of superannuation on 31.8.1985 and his pension including gratuity was withheld by the authorities under the aforesaid rule 9 of the Rules of 1976, and the original respondents was paid, however, a provisional pension in accordance with the said sub-rule (4) of rule 9 of the Rules of 1976. Any proceeding under rule 9 of the Rules of 1976 for recovery of loss from pension can be instituted only on or after the retirement of a Government servant and by virtue of sub-rule (2) of rule 9, the proceedings against the original respondent could be deemed to have been instituted on the date of his retirement i.e., on 31.8.1985. Clause (b) of the third proviso of the said sub-rule (4) of rule 9 of the rules of 1976, makes it amply clear that if the departmental proceedings are not completed within a period of 2 years from the date of institution, the entire amount of pension so withheld shall stand resored on the expiration of the period of 2 years. Thus, the pension that has been withheld in the case of the original respondent stood restored on the expiration of 2 years from the date of institution of the departmental proceedings and no order could on the completion of such 2 years could be passed by the Governor for recovery of the loss of Rs. 4,10,071.84 from the original respondents. Thus, even if we hold that the departmental proceedings initiated by the Conservator of Forest did not stand vitiated and the findings in the said departmental proceedings by the Disciplinary Authority could be placed before the Governor, it will not be possible for the Governor to pass any final order for recovery of the loss of Rs. Thus, even if we hold that the departmental proceedings initiated by the Conservator of Forest did not stand vitiated and the findings in the said departmental proceedings by the Disciplinary Authority could be placed before the Governor, it will not be possible for the Governor to pass any final order for recovery of the loss of Rs. 4,10,071.84 from the original respondents in view of clause (b) of the third proviso to sub-rule (4) of rule 9 of the Rules of 1976. Shri Yadav, learned counsel for the petitioners, however, submitted that a statutory fiction has been created in clause (c) of the third proviso to rule 9 to the effect that if in the departmental proceedings, final order is passed to withhold or withdraw the pension or any recovery is ordered, such order shall be deemed to take effect from the institution of the departmental proceedings and the amount of pension withheld shall be deemed to take effect from the insitution of the departmental proceedings and the amount of pension withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of rule 43. But in our opinion this is a provision providing for the legal consequences of a final order passed under rule 9 of the Rules of 1976 and it makes it clear that once a final order is passed to withhold or withdraw the pension or to recover any amount of loss, the amount of pension withheld is to be adjusted in terms of the final order subject to limit specified in sub-rule (5) of rule 43. It does not in any way qualify or alter the limitation of 2 years for completion of the departmental proceedings from the date of institution in case where the Government servant has retired. Shri D.K. Dixit, learned counsel for the respondents vehemently submitted that since the original respondents was entitled to restoration of his entire pension including gratuity withheld on expiry of 2 years from the date of institution of the departmental proceedings under clause (b) of the third proviso of sub-rule (4) of rule 9 of the Rules of 1976, the respondents should be granted interest at a reasonable rate on the amount of pension withheld calculated from the date of completion of such 2 years from the date of instituton of the departmental proceedings. We cannot grant this relief to the respondents in this present writ petition as the present writ petition has been filed not by the respondents, but by the petitioners against the order passed by the Tribunal but we leave it open for the respondents to make the claim regarding interest in an appropriate forum in accordance with law." ( 7. ) Their Lordships while deciding the aforesaid case, R.L.Ogale and others (supra) held that third proviso (b) of sub-rule (4) of rule 9 of the Rules of 1976 makes it amply clear that if the departmental proceedings are not completed within a period of two years from the date of institution of the proceedings, the entire pension so withheld shall stand restored on expiration of the period of two years. It has been further held that no order could have been passed in the facts and circumstances of the case on the expiration of the period of two years from the date of insitution of the departmental proceedings by the Governor for recovery of the loss. ( 8. ) Keeping in view the judgment delivered by a Division Bench of this Court in the case of R.L. Ogale and others (supra), it is evident that the respondents have not passed a final order in respect of the pending departmental inquiry and the petitioner is entitled for all terminal dues. The judgment delivered by a Division Bench of this Court in the case of R.L. Ogale and others (supra) squarely covers the facts and circumstances of the present case, and therefore, the petition deserves to be allowed. ( 9. ) Keeping in view the judgment delivered by the Division Bench of this Court as the departmental enquiry has not been completed within a period of two years from the date of insitution and the petititioner is retired employee, the entire amount of pension so withheld shall stand restored. Resultantly, the respondents are directed to restore the pension of the petitioner so withheld and to pay arrears of pension along with regular pension within a period of 90 days from the date of receipt of certified copy of this order. Resultantly, the respondents are directed to restore the pension of the petitioner so withheld and to pay arrears of pension along with regular pension within a period of 90 days from the date of receipt of certified copy of this order. The respondents shall also settle the other terminal dues in accordance with law and in case any dues are to be recovered from the petitioner, the respondents shall follow the provisions of rule 65 of the M.P. Civil Services (Pension) Rules, 1976 in the matter.