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Madhya Pradesh High Court · body

2016 DIGILAW 361 (MP)

Sukhnandan Chaturvedi v. State of M. P.

2016-05-02

RAJENDRA MENON

body2016
ORDER 1. Petitioner has filed this writ petition and the grievance of petitioner is with regard to non-payment of back-wages and salary to him for the period from 4.3.1992 to August, 2007 during which period his services were under termination, so also in the matter of settlement of his gratuity and pension. It is stated that even after his retirement on attaining the age of superannuation only provisional pension and provisional gratuity has been paid to the petitioner. 2. Respondents had filed the reply and on going through the assertion made by respondents in the return we find that petitioner’s services were terminated, this resulted in judicial proceedings being initiated and finally matter came up to this Court at the instance of the petitioner in Writ Petition No.8554/2003 and by a detailed order passed by a Bench of this Court vide Annexure P-1 on 12.5.2008 the writ petition was allowed and the termination order quashed and petitioner was directed to be reinstated in service. With regard to payment of arrears of salary or back wages for the period the petitioner remained out of service i.e. from 4.3.1992 to August, 2007, in para 9 and 10 of the order passed in the writ petition on 12.5.2008 the following directions were issued, which reads as under; “9. The question with regard to grant of back wages has been considered by the apex Court in General Manager, Haryana Roadways v. Rudhan Singh [ (2005)5 SCC 591 ]. M.L. Binjolkar v. State of M.P. [ (2005)6 SCC 224 ]. U.P. State Brassware Corpn. Ltd. and another v. Uday Narayain Pandey [ (2006)1 SCC 479 ] and also in General Manager Vijaya Bank and another v. Pramod Kumar Gupta [ (2006)7 SCC 379 ], wherein the apex Court has laid down a principle that the grant of back wages depends upon various factors including that the employee after termination was not gainfully employed. The apex Court has further held that it is for the employee to plead and prove that he was not gainfully employed after termination so that the award of back wages is justified. 10. In view of the aforesaid, since no material has been placed on record that the petitioner after his dismissal was out of employment, therefore, I am not inclined to grant the back wages. 10. In view of the aforesaid, since no material has been placed on record that the petitioner after his dismissal was out of employment, therefore, I am not inclined to grant the back wages. However, it is also directed that in case the petitioner has not reached the age of superannuation then he shall be reinstated in service. However, this order shall not restrict the right of the competent authority i.e. the Collector to pass an appropriate order on the departmental enquiry, in accordance with law. Resultantly, the present petition stands partly allowed.” Now from the return filed by respondents it is clear that petitioner’s claim for back-wages for the aforesaid period cannot be acceded to as the High Court has not granted him any back-wages. The High Court has only directed for his reinstatement in case he has not attained age of superannuation and settlement of his post-retiral claim after retirement. Now from the record we find that after superannuation of the petitioner on 30.08.2007 provisional pension and gratuity was released to petitioner as is evident from annexure R-1 dated 8.10.2009. There may be some delay in releasing the provisional pension to petitioner, but records further indicate that petitioner has been convicted for an offence under sections 420, 467 of the IPC and sentenced to undergo 7 years RI and fine of Rs.2,000 vide judgment and order annexure R-2 dated 10.1.2011 passed by the CJM Chhatarpur. After his conviction the provisional gratuity was also released to petitioner vide Annexure R-3 dated 20.3.2012 and now it is indicated in the return that petitioner has preferred an appeal against conviction which is pending consideration before the competent appellate Court at Chhindwara, as is evident from annexure R-4. Accordingly, it is case of respondent now in the return that because of his conviction in the criminal case and as provisional pension and gratuity have been granted, no further relief can be granted, as now it is only after finalization of the criminal case or his acquittal of the criminal charges that the pensionary claims can be settled. 3. Accordingly, it is case of respondent now in the return that because of his conviction in the criminal case and as provisional pension and gratuity have been granted, no further relief can be granted, as now it is only after finalization of the criminal case or his acquittal of the criminal charges that the pensionary claims can be settled. 3. Shri Anubhav Jain, learned counsel for the petitioner submits that the petitioner attained the age of superannuation in August, 2007, his writ petition Writ Petition No.8554/2003 was decided on 12.5.2008 and within a reasonable period, say three months from the date of decision of the writ petition his claim for gratuity, pension and all other post-retiral benefit should have been settled. His conviction after more than three years from the date of decision in the writ petition on 12.5.2008 cannot be a ground for denying him pensionary benefit, particularly when there is no order passed by the competent authority, namely, the Governor exercising power under rule 8 read with rule 9 of the M.P. Civil Services (Pension) Rules, 1976 in the matter of withdrawal or forfeiture of pension. 4. Shri Piyush Jain, Panel Lawyer refutes the aforesaid contention and he argues that once now from the material available on record it is clear that the petitioner is convicted for criminal offence under section 420 read with section 467 of IPC, finalization of his pensionary claim is not permissible and the department has not committed any error and therefore, for the present except for the provisional pension and provisional gratuity paid to the petitioner, he is not entitled to any further benefit. 5. I have considered submissions made by learned counsel for the parties and have also taken note of the statutory provisions as are contained in M.P. Civil Services (Pension) Rules, 1976. Normally when a person retires on attaining the age of superannuation, within a reasonable time say within three months to six months all his pensionary claims should be settled. In the present case, even though the petitioner was to retire on attaining the age of superannuation on 30.8.2007, but on the said date the contract of employment between the petitioner and the respondent was not subsisting, as the petitioner’s services were terminated. In the present case, even though the petitioner was to retire on attaining the age of superannuation on 30.8.2007, but on the said date the contract of employment between the petitioner and the respondent was not subsisting, as the petitioner’s services were terminated. The contract of employment revived on 12.5.2008 when the High Court set aside his termination and allowed Writ Petition No.8554/2003 and when contract of employment came into existence by operation of law, as indicated hereinabove, the petitioner at that time was a retired employee and, therefore, deeming him to have retired on attaining the age of superannuation, he is not reinstated in service, in doing so the department has not committed any error. But at the same time on 12.5.2008, when the contract of service revived, petitioner was deemed to have been reinstated and then retired on attaining the age of superannuation on 30.8.2007 then within a reasonable time from 12.5.2008 his pension and post retiral claim should have been settled, this was not done and it was indicated on 8.10.2009 that a provisional pension was paid to him, this was done because two departmental enquiries were pending against petitioner at that point of time. However, until and unless in the departmental enquiries that were pending order of punishment was not issued, the State Government or the competent authority had no right to withhold pension and post-retiral benefit of petitioner. Thereafter on 29.12.2010 order of conviction has been passed, this also could not be a ground for withholding pension and post-retiral dues of petitioner. The respondents under a wrong assumption that two departmental enquiries were pending and conviction in criminal case in operation against petitioner are not settling his pensionary claim, this in my considered view is not permissible. Once petitioner had retired and retirement came into force on 12.5.2008 after the High Court decided the case of termination, post-retiral claim in accordance with law as per his entitlement is to be settled in accordance to the position as it existed on 30.8.2007. Once petitioner had retired and retirement came into force on 12.5.2008 after the High Court decided the case of termination, post-retiral claim in accordance with law as per his entitlement is to be settled in accordance to the position as it existed on 30.8.2007. The disqualification on account of any departmental enquiry pending or conviction in the criminal case can give rise to a fresh cause for withholding of pension or its forfeiture in view of the provisions of rule 8 read with rule 9 of the M.P. Civil Services (Pension) Rules of 1976 that also after the matter is placed before the Governor or such other competent authority to whom powers are vested under rule 9 of the Pension Rules. Until and unless appropriate orders are not passed under rule 9 with regard to withholding or withdrawal of pension or post-retiral benefit in whole or in part , the respondents cannot deny payment of post-retiral dues on the ground of pendency of departmental enquiry or his conviction in criminal case. The respondents may have a right to withhold pension in whole or in part, but the same can be done only after the procedure contemplated under M.P. Civil Services (Pension) Rules i.e. rule 9 is undertaken and until and unless the competent authority passes an appropriate order for withholding of pension in part or in whole, the respondents cannot deny grant of pensionary benefit to petitioner. 6. Accordingly, this petition has to be allowed and by allowing the same the following directions are issued : “Respondents to release to the petitioner all his post-retiral benefits including pension, gratuity and all other benefits to which he is entitled to treating him to be retired on 30.8.2007 and settle his post-retiral claim according to his entitlement within a period of 60 days from the date of receipt of certified copy of this order. Claim of the petitioner for payment of arrears of salary or back wages for the period 4.7.1992 to August, 2007 stands rejected. The petitioner would only be entitled to notional fixation of pay and consequential refixation of his pension and other post retiral benefits. Claim of the petitioner for payment of arrears of salary or back wages for the period 4.7.1992 to August, 2007 stands rejected. The petitioner would only be entitled to notional fixation of pay and consequential refixation of his pension and other post retiral benefits. After having done so, if the competent authority feels that the departmental enquiry is pending against petitioner or his conviction in criminal case on 11.1.2011 debars him from granting pension or post-retiral benefit, they are free to proceed in the matter in accordance to provisions of rule 8 and rule 9 of M.P. Civil Services (Pension) Rules or any other provision as may be applicable statutory in nature. The entire claim of petitioner should be settled as per law and thereafter matter shall be proceeded in the manner as indicated hereinabove.” 7. With the aforesaid, the writ petition stands allowed and disposed of. ...................