Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 1081 (MP)

Raghuwar Dayal Pathak v. State of M. P.

2016-11-28

VIVEK AGARWAL

body2016
ORDER 1. The petitioner has assailed the order dated 9.12.2014 and has mentioned that vide order dated 9.12.2014 passed by the State Government in the name of and by the order of the Governor, there was a clear mention that except for the minimum pension, remaining pension is withdrawn as was admissible to the petitioner and in Hindi it reads as under:- ^^3- Jh j?kqohj n;ky ikBd vf/kokf"kZd vk;q iw.kZ dj fnukad 31-7-1995 dks lsokfuo`r gks x, fdarq muds }kjk fd, x, mDr d`R; vkijkf/kd Lo:i rFkk xaHkhj nqjkpj.k ds Js.kh esa vkrk gSA vr,o jkT; 'kklu ,rn~}kjk e-iz- flfoy lsok ¼isU'ku½ fu;e] 1976 ds fu;e 9¼1½ ds varxZr Jh j?kqohj n;ky ikBd] rRdkyhu jktLo fujh{kd ,oa lsukfuo`r lgk;d laifrdj vf/kdkjh] uxjikfyd fuxe] Xokfy;j ds ns; lEiw.kZ U;wure isU'ku dks NksM+dj LFkk;h :i ls okil yh tkrh gSA** 2. It is the submission of the petitioner that when there is an order by the State Government in the name of and by the order of the Governor, then respondents No.2 and 3 are not entitled to supersede the orders passed by the State Government in the name of and by the order of the Governor in terms of the provisions contained in rule 9(1) of the Madhya Pradesh Civil Services (Pension) Rules, 1976. On such contention being recorded on 21.10.2016, the respondents No.2 and 3 were directed to file specific reply as to under which authority the Commissioner, Municipal Corporation, Gwalior can supersede the orders passed by the State Government in the name of and by the order of the Governor. 3. Learned counsel for respondents No.2 and 3 has filed additional reply/circular, in which there is a reference to Finance Department Circular No.F9-4/2011/Niyam/4 dated 27.6.2011. According to the learned counsel for the respondents in terms of para 3 of the said Finance Department Circular since the Commissioner, Municipal Corporation is a disciplinary authority, discretion has been vested in the disciplinary authority to withdraw complete pension. According to the learned counsel for the respondents in terms of para 3 of the said Finance Department Circular since the Commissioner, Municipal Corporation is a disciplinary authority, discretion has been vested in the disciplinary authority to withdraw complete pension. Para 3 of the said circular reads as under:- ^^3- vr% leLr vuq'kklfud izkf/kdkfj;ksa dk /;ku mi;qZDr fu;eksa dh rF;kRed fLFkfr dh vksj vkdf"kZr djrs gq, ys[k gS fd vuq'kklfud vf/kdkjh ds er esa ;fn isU'ku iw.kZr%@va'kr okfil fy, tkus laca/kh 'kkfLr vf/kjksfir djuk gS rks tkjh fd, tkus okys vkns'k esa isU'ku okfil djus Li"V mYys[k fd;k tkuk pkfg,A blds foijhr ;fn isU'ku dk dksbZ va'k fdlh fofufnZ"V vof/k gsrq jksdus dk gS rc ,slh fLFkfr esa tkjh fd, tkus okys vkns'k esa isU'ku dk va'k rFkk fofufnZ"V vof/k ftl gsrq isU'ku jksdh tk jgh gS] dk mYys[k gksuk pkfg,A** Learned counsel for respondents No.2 and 3 has also drawn attention to para 2 of the said Circular, which reads as under:- ^^2- isU'ku dk dksbZ va'k jksdus ij fofufnZ"V vof/k ftl gsrq isU'ku dk va'k jksdk x;k gS ds i'pkr~ jksdk x;k va'k iqu% ns; gks tkrk gS rFkk isU'kuj dks iw.kZ isU'ku izkIr djus dh ik=rk vk tkrh gS] tcfd isU'ku okfil fy, tkus Hkfo"; esa isU'kuj dks isU'ku ds mDr va'k dh ik=rk ugha vkrh gSA ;g Hkh mYys[kuh; gS fd isU'ku iw.kZr% okfil ysus ij U;wure isU'ku dh ik=rk ugha vkrh tcfd ;fn isU'ku dk dksbZ va'k jksdk vFkok okfil fy;k tkrk gS rc ,slh fLFkfr esa de ls de U;wure isU'ku ns; gksrh gSA** 4. As far as para 2 of the aforesaid Circular is concerned, it only provides that if a part of the pension is withheld for a particular time period, then after expiry of that period, a pensioner attains eligibility for payment of that portion of the pension, which was withheld for a particular period; whereas in case the pension is withdrawn, then in future, pensioner shall not be eligible for restoration of the portion of the pension which has been withdrawn. It is further mentioned that in case of complete withdrawal of the pension, a pensioner shall not be entitled to payment of minimum pension; whereas if some portion of the pension is withheld or withdrawn, then under such situation, a pensioner shall be entitled to payment of minimum pension. It is further mentioned that in case of complete withdrawal of the pension, a pensioner shall not be entitled to payment of minimum pension; whereas if some portion of the pension is withheld or withdrawn, then under such situation, a pensioner shall be entitled to payment of minimum pension. In this context, when impugned order Annexure P-1 is examined, it is clearly mentioned that except for the minimum pension, remaining pension is permanently withdrawn. Therefore, as the learned counsel is trying to strenuously pursue this Court to read as if complete pension was withdrawn, it is not acceptable and that interpretation cannot be given to the impugned order Annexure P-1. At this stage, the learned counsel for respondents No.2 and 3 submits that in fact there is a clerical error in the order passed by the State Government in the name of and by the order of the Governor; that argument is erroneous and beyond authority of the Municipal Commissioner, who is represented by the learned counsel and therefore it deserves to be and is rejected outrightly. 5. As far as para 3 of the aforesaid circular dated 27.6.2011 is concerned, it is meant for the disciplinary authority, where the disciplinary authority has to apply its mind and take a decision in the matter of withholding/withdrawal of the pension. It is provided that if pension is to be withdrawn, then it should be clearly so mentioned. It is further provided that if some part of the pension is to be withheld, then it should be clearly mentioned that how much part of the pension is to be withdrawn and for what duration. 6. Again in the opinion of this Court once the orders were passed by the State Government in the name of and by the order of the Governor, the case was not open for the Municipal Commissioner to apply its mind as disciplinary authority. In fact, the question, which was posed to the Municipal Commissioner that how he can supersede the orders passed by the State Government in the name of and by the order of the Governor, is not answered through reliance placed on Finance Department Circular dated 27.6.2011. Thus, this Court has no hesitation to hold that the Commissioner, Municipal Corporation, Gwalior, has no authority to completely withhold the pension in violation of the order dated 9.12.2014. Thus, this Court has no hesitation to hold that the Commissioner, Municipal Corporation, Gwalior, has no authority to completely withhold the pension in violation of the order dated 9.12.2014. It is further held that he has, in fact, no business to tamper with the order passed by the State Government in the name of and by the order of the Governor. 7. In view of the aforesaid, the order Annexure P-2 dated 18.12.2014 is quashed. Costs of Rs.5,000/- is also imposed for passing illegal order beyond the authority vested in the Commissioner on incorrect or colourable reading of Finance Department Circular. It is further directed that the order of the State Government be given effect to within 15 days from today and if it is not given effect to within 15 days, then the Municipal Corporation shall be liable to pay interest @ 9% per annum on such amount which has been withheld despite the order Annexure P-1. Accordingly, the writ petition stands disposed of.