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Madhya Pradesh High Court · body

2016 DIGILAW 243 (MP)

Dau Ram Maheshwar v. State of M. P.

2016-03-17

S.C.SHARMA

body2016
ORDER : S.C. SHARMA, J. 1. The petitioner before this Court has filed this present writ petition being aggrieved by the order dated 8/12/2014 (Annexure P/1) and order dated 20/1/2015 by which the respondents have passed an order of forfeiting the entire pension of the petitioner. The aforesaid order has been passed under Rule 9 of the M. P. Civil Services (Pension) Rules, 1976. 2. Learned counsel for the petitioner, at the outset, has raised a preliminary objection in respect of the impugned order. His contention is that no opportunity of hearing was given to the petitioner while passing an order of stoppage of pension. It is submitted that Rule 8 has to be read in consonance with Rule 9 of the Rules of 1976 and a proper Show Cause Notice has to be issued to the pensioner before passing any order forfeiting the pension. Learned counsel for the petitioner has placed heavy reliance upon the judgment delivered by the Chattisgarh High Court in the case of Jagatnarain Tripathi v. State of Chattisgarh and others reported in 2009 (3) MPHT 81 (CG). 3. On the other hand, learned counsel for the respondent - State has vehemently argued before this Court that keeping in view Rule 9 of the Rules of 1976, the question of granting any notice to the petitioner does not arise and his contention is that the order has been passed in consultation with the M. P. Public Service Commission and does not warrant any interference by this Court. It has been contended that once the petitioner has been convicted for an offence punishable u/Ss. 120-B, 467, 468 and 471 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, the question of interference does not arise as the petitioner has been punished with imprisonment of 3 years. 4. Heard learned counsel for the parties at length and perused the record. 5. This Court has carefully gone through the judgment delivered by the Chattisgarh High Court in the case of Jagatnarain Tripathi (supra). The Chattisgarh High Court was handling with a similar case relating to M.P. Civil Services (Pension) Rules, 1976. The Chattisgarh High Court, in paragraph No. 6 to 15 has held as under : 6. 5. This Court has carefully gone through the judgment delivered by the Chattisgarh High Court in the case of Jagatnarain Tripathi (supra). The Chattisgarh High Court was handling with a similar case relating to M.P. Civil Services (Pension) Rules, 1976. The Chattisgarh High Court, in paragraph No. 6 to 15 has held as under : 6. The short question involved in this petition is whether the respondents could withhold payment of pension to the petitioner in exercise of power under Rule 8(1)(b) of the Rules, 1976? Rule 8 is reproduced as under:- "8. Pension subject to future good conduct.- (1)(a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules. (b) The pension sanctioning authority may, by order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct: Provided that no such order shall be passed by an authority subordinate to the authority competent at the time of retirement of the pensioner, to make an appointment to the post held by him immediately before his retirement from service: Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time]. (2) Where a pensioner is convicted of a serious crime by a court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgment of the court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1):- (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal; and (b) take into consideration the representation, if any, submitted by the pensioner under clause (a). (4) where the authority competent to pass an order under sub-rule (1) is the Governor, the State Public Service Commission shall be consulted before the order is passed. (5) An appeal against an order under sub-rule (1), passed by any authority other than the Governor, shall lie to the Governor and the Governor shall in consultation with the State Public Service Commission pass such order on the appeal as he deems fit. Explanation. - In this rule, - (a) the expression "serious crime" includes a crime involving an offence under the Official Secrets Act, 1923 (No.19 of 1923); (b) the expression "grave misconduct" includes the communication or disclosure of any secret official code or pass word or any sketch, plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Act, while holding office under the Government so as to prejudicially affect the interests of the general public or the security of the country." 7. After retirement of the petitioner on 31st December, 1994 he was continuously being paid anticipatory pension. However, by the impugned order payment of pension has been stopped on the ground that the petitioner was convicted and sentenced for the offence punishable under the Prevention of Corruption Act. 8. From bare perusal of Rule 8, it is manifestly clear that the future good conduct is an implied condition for grant of pension and its continuance; the sanctioning authority is competent to withhold or withdraw a pension or part thereof permanently or for a specified period in the event, employee is convicted of a serious crime or is guilty of grave misconduct; pension cannot be reduced below minimum pension as fixed by the Government from time to time; where there is no direction in the judgment of the Court relating to such conviction, a duty is cast upon the sanctioning authority to issue show cause notice to the retired employee specifying the action proposed to be taken against him mentioning grounds for the same and the order is to be passed only after consideration of his reply/representation. 9. 9. Thus, the aforesaid provision clearly and unambiguously provides that (1) once pension of the employee is fixed after his retirement, the same cannot be reduced below minimum pension as determined by the State Government from time to time, and (2) where withdrawal/withholding is on account of conviction in serious offence or grave misconduct, the same is to be done in accordance with the direction in the judgment of conviction and where there is no such direction, pension can be withheld or withdrawn only after affording opportunity of hearing to the retired employee. 10. In the instant case, it is not in dispute that anticipatory pension was fixed after retirement of the petitioner on 31st December, 1994 and the petitioner stood convicted before his retirement. The impugned order was passed after 6 years of his retirement and the aforesaid order has been passed without affording any opportunity of hearing to the petitioner, as contemplated under clause (a) of sub- rule (3) of Rule 8 of the Rules, 1976. 11. In the matter of State of Punjab v. K.R. Erry and another, the Hon'ble Supreme Court, while considering Rule 6.4 of the Punjab Pension Rules, which empowers the sanctioning authority to make reduction in the pension amount in case service has not been thoroughly satisfactory, has held that the State Government must give reasonable opportunity to the officer concerned to show cause against the proposed reduction in the amount of pension and gratuity legally payable on his superannuation. 12. In the instant case, there is nothing on record to establish that anticipatory pension sanctioned to the petitioner, which was subsequently withheld for the present until further orders by the impugned order, was passed after affording opportunity of hearing to the petitioner. The petitioner was also not paid minimum pension for which he was entitled in accordance with Rule 8 of the Rules, 1976 from the year 2000. 13. It is also settled law that the pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof is to be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. It is also settled law that the pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof is to be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. {State of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429 ; R. Kapur v. Director of Inspection (Printing and Publication) I.T. (1994) 6 SCC 589 }. 14. Undisputedly the petitioner was drawing pension for 6 years after his retirement in the year 1994. All of a sudden the payment of pension was withheld in the year 2000 on the ground of his conviction in a criminal case. The order was passed without any notice to the petitioner. His representations against the impugned order were also not considered. 15. In the aforesaid circumstances, the impugned order of Annexure-P/1 dated 22-5-2000 cannot be sustained and accordingly the same is set aside and it is held that the petitioner is entitled for arrears of anticipatory pension with interest @ 6% per annum from the due date. 6. Keeping in view the aforesaid judgment and also keeping in view Section 8 of the M.P. Civil Services (Pension) Rules, 1976, this Court is of the considered opinion that a proper notice should have been given to the petitioner as required under Rule 8 and thereafter respondents were free to pass an appropriate order in accordance with law. 7. Resultantly, the Writ Petition is allowed. The impugned orders dated 8/12/2014 and 20/1/2015 are hereby quashed. The respondents are directed to release the pension and arrears of pension, however, the respondents shall be free to issue fresh Show Cause Notice and shall also be free to take appropriate action in accordance with law. 8. With the aforesaid, the Writ Petition stands allowed and disposed of.