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Madhya Pradesh High Court · body

2017 DIGILAW 369 (MP)

Ramlal Malviya v. State of M. P.

2017-03-16

VIVEK RUSIA

body2017
ORDER 1. The petitioner has filed the present petition seeking a direction to the respondents to disburse the pension and release the gratuity amount. 2. Facts of the case are that petitioner was initially appointed in the Co-operative Department. Before the date of superannuation on 31.12.2015 he was caught red-handed while accepting bribe on 30.11.2015. Criminal Case No.1/2016 was registered against the petitioner. 3. After retirement his pension papers were prepared by the District Pension officer, Ratlam and sent for payment. Deputy Commissioner, Co-operative vide letter dated 21.1.2016 sought direction from the Commissioner, Cooperative whether the gratuity, GPF, Group Insurance, Family benefit and leave encashment can be released to the petitioner as the final report has not been submitted by the Lokayukt police. Vide letter dated 14.3.2016 it was clarified that since challan has not been filed and it is not a case where departmental enquiry/judicial proceedings has been initiated against the petitioner, hence withholding the amount of pension and other dues is not justified. Thereafter, vide letter dated 7.4.2016, the Treasury Officer requested the Deputy Commissioner, Cooperative for cancellation of PPO as the Commissioner, Co-operative while video conferencing had directed Treasury and Account not to make payment of gratuity and pension to the petitioner, hence the petitioner has filed the present petition. 4. After notice, respondents No.2, 4 and 6 filed the return submitting that challan has been filed by the Lokayukt, Ujjain on 30.4.2016 and under the provisions of rule 64 of M.P. Civil Services Pension Rules, 1976 the petitioner is entitled for provisional pension and the Deputy Commissioner, Co-operative, District Ratlam has issued order dated 19.2.2016 whereby the provisional/interim pension of Rs.10,870/- and D.A. Of Rs.13,588/- has been sanctioned to the petitioner and the petitioner has been paid the arrears of provisional pension from January, 2016 to August, 2016 on 20.9.2016. Respondents No.1, 3 and 5 has adopted the return filed by respondents No.2, 4 and 6. 5. Shri Govind Purohit, learned counsel appearing for the petitioner submits that petitioner is entitled for full pension as judicial proceedings have been instituted after his retirement. Under rule 9(4), the judicial proceedings are said to have been instituted only when the final report has been submitted by the Police Officer or the Magistrate has taken cognizance. 5. Shri Govind Purohit, learned counsel appearing for the petitioner submits that petitioner is entitled for full pension as judicial proceedings have been instituted after his retirement. Under rule 9(4), the judicial proceedings are said to have been instituted only when the final report has been submitted by the Police Officer or the Magistrate has taken cognizance. In the present case at the time of retirement of the petitioner, neither final report was filed nor the Magistrate took cognizance, therefore, the petitioner is entitled for full pension as PPO has already been prepared. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Prahlad Amarchya v. State of M.P. in Writ Petition No.8514/2013 dated 10.3.2016 in which this Court has held that cognizance was taken after retirement of the petitioner, therefore, he is entitled for full pension. 6. Per contra, Shri Rajeev Jain, learned Panel lawyer on behalf of respondents submits that Government servant would be entitled for the provisional pension and 50% of the gratuity from the date of retirement till the conclusion of judicial proceedings passed by the competent authority despite that the judicial proceedings instituted after the retirement. 7. I have heard learned counsel for the parties. 8. In this case the facts are not in dispute that criminal case was registered against the petitioner on 30.11.2015 and he was retired from service on 31.12.2015 and thereafter a final report was filed under section 173 of the CrPC on 30.4.2016. The only ground which has been raised by the petitioner in this case is whether he is entitled for full pension when there was no judicial enquiry pending against him on the date of retirement. 9. Rule 9 provides the right of Governor to withhold or withdraw pension. For ready reference rule 9 of M.P. Civil Services Pension Rules is reproduced as under :- “9. Right of Governor to withhold or withdraw pension. 9. Rule 9 provides the right of Governor to withhold or withdraw pension. For ready reference rule 9 of M.P. Civil Services Pension Rules is reproduced as under :- “9. Right of Governor to withhold or withdraw pension. - (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement : Provided that the State Public Service Commission shall be consulted before any final orders are passed : 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) (a) The departmental proceedings (x x x), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued an concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service : Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor. (b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment :- 1. shall not be instituted save with the sanction of the Governor; 2. shall not be in respect of any event which took place more than four years before such institution; and 3. (b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment :- 1. shall not be instituted save with the sanction of the Governor; 2. shall not be in respect of any event which took place more than four years before such institution; and 3. shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings :- (a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or (b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government). (3) No judicial proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (3) No judicial proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (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 percent 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 institution of such proceedings" the words "with effect from a date not later than thirty days from the date 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 institution 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 institution 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 proceeding and to 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) where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule - (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted - 1- in the case of criminal proceeding, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and 2- In the case of civil proceedings, on the date the plaint is presented in the Court.” 10. Under sub-rule (1) of rule 9 the Governor reserves all rights to withhold or withdraw a pension on part thereof, whether permanently or for a specified period. Sub-rule 2(a) deals with a situation where the departmental proceedings instituted while the Government servant was in service before his retirement or during his reemployment, and after the retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service. Sub-rule 2(b) deals with a situation where the departmental proceedings, if not instituted while the Government servant was in service whether before his retirement, shall not be instituted without the sanction of the Governor etc.. Under sub-rule (3), no judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than 4 years before such institution. Sub-rule(4) which requires consideration for adjudication of this case, speaks that in case 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. Sub-rule (4) is for those employees who have retired on attaining the age of superannuation or otherwise. The judicial proceedings as well as departmental enquiry can go on and during this period the Government employee will be entitled for pension and gratuity as per rule 64. Sub-rule (2) deals with a situation where the departmental proceedings if any instituted before retirement can be initiated later on after retirement. So far as the judicial proceedings are concerned, sub-rule (3) puts an embargo of four years only for initiation of judicial proceedings in case of retired employee. It means there is no dispute about continuation of judicial proceedings if initiated before retirement and can continue after retirement. Sub-rule (4) deals with departmental proceedings as well as judicial proceedings which are instituted in case of Government servant who has retired on attaining the age of superannuation subject to embargo of 4 years as contemplated in sub-rule 2(b) and 3 respectively. 11. Sub-rule (4) is in two part. First part deals with a situation where judicial proceedings and departmental proceedings are initiated after retirement and second part deals with a situation where Departmental proceedings initiated while Government servant was in service and deemed to continue after his retirement. In both the situations, provisional pension would be paid as per rule 64. The rule 64 would come into operation where judicial proceeding is instituted either on filing Final Report (chalan) by police or the Magistrate takes cognizance. If judicial proceeding has initiated as the case may be, then the Governor may withhold pension under rule 9(4) of Pension Rules, 1976. 12. The entire sub-rule (4) deal with those Government servant who have retired, therefore rule 64 would apply in the case of the petitioner because the judicial proceedings are initiated after the retirement.