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2020 DIGILAW 1076 (MP)

Gendan Singh Gaharwar v. State of M. P.

2020-10-09

SANJAY DWIVEDI

body2020
ORDER 1. With the consent of the learned counsel for the parties since the pleadings are complete, the matter is heard finally. 2. This petition under Article 226 of the Constitution of India is not filed against any specific order, but it is against the arbitrary and illegal action of the respondents thereby not considering the case of the petitioner for grant of 100% pension to him and also against retaining the gratuity amount for which he is otherwise legally entitled. The non-grant of pension as well as gratuity is based upon a reason that in a criminal case instituted against the petitioner, though he has been acquitted vide judgment dated 23.7.2018 (Annexure-P/1) by the Special Court, Khandwa, but respondent No.3 has preferred an appeal against the said judgment before the High Court and that appeal is pending, and the respondents, treating the said appeal to be continuation of trial, are not granting the benefit of 100% pension to the petitioner and have also retained the gratuity amount. Therefore, against the said illegal and arbitrary action of the respondents, the petitioner has preferred this petition claiming following reliefs:- “(i) Direct the respondent No.1 to consider the case of the petitioner and grant 100% pension to the petitioner as per the rules, along with the arrears; (ii) Direct the respondent to release the gratuity amount to the petitioner to which the Petitioner is entitled in lieu of his services; (iii) Direct the respondent to consider the case of the petitioner for promotion and if the petitioner is found fit for promotion then his pension and other benefits may be calculated treating him as promoted employee from post of Tahsildar to Deputy Collector.” 3. As per the facts of the case, the petitioner was retired w.e.f. 30.5.2016 and challan in respect of criminal case instituted against him was filed on 19.1.2017. The challan was filed after the retirement of the petitioner as during his services the Revenue Secretary has not granted sanction for prosecution and it was hanging between the Parent and Law Department. However, that was subsequently granted and challan was filed. (3.1) The said criminal case was tried by the Special Judge, Khandwa and vide judgment dated 23.7.2018, the petitioner was acquitted from the charges levelled against him. (3.2) The petitioner was only sanctioned 90% pension. In this regard, an order has been passed on 24.6.2016 (Annexure-P/2). However, that was subsequently granted and challan was filed. (3.1) The said criminal case was tried by the Special Judge, Khandwa and vide judgment dated 23.7.2018, the petitioner was acquitted from the charges levelled against him. (3.2) The petitioner was only sanctioned 90% pension. In this regard, an order has been passed on 24.6.2016 (Annexure-P/2). The gratuity which was to be paid to the petitioner was also not paid to him. The petitioner thereafter made a representation to the Principal Revenue Commissioner on 13.3.2019 (Annexure-P/3) for grant of 100% pension and for releasing requisite gratuity amount, but that representation is still pending and has not been decided so far. 4. The petitioner has preferred this petition claiming reliefs as quoted hereinabove. However, reply has been filed by the respondents taking stand therein that after the judgment of Special Court, the Department took a decision to assail the said judgment in a higher forum and, therefore, M.Cr.C. No.1669/2019 has been filed on 8.1.2019 and as such, judicial proceeding is still pending against the petitioner, therefore, he is not entitled to get 100% pension and also the amount of gratuity. 5. In the aforesaid facts and circumstances of the case, the counsel for the petitioner submits that the stand taken by the respondents, is not acceptable and sustainable in the eyes of law for the reason that merely because the judgment passed by the Special Court in a criminal trial has been assailed by the respondents by filing an appeal before the High Court, the petitioner cannot be deprived to get the benefit of retiral dues though he has been cleanly acquitted by the trial Court. The pendency of appeal against the judgment passed in a criminal case cannot be treated to be continuation of trial as is held in civil cases that the appeal against the judgment and decree in civil Court considered to be a continuous proceeding of civil suit. In this regard, the Division Bench of this Court in case of Ram Ratan Tiwari v. State of M.P. and others reported in 2002(5) MPHT 11 has held as under:- “5. Shri S.C. Sharma, learned counsel for the petitioner, contended that trial has ended in acquittal, therefore, respondents should permit the petitioner to join the service. Reference is made to rule 9(1)(b) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. Shri S.C. Sharma, learned counsel for the petitioner, contended that trial has ended in acquittal, therefore, respondents should permit the petitioner to join the service. Reference is made to rule 9(1)(b) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. Besides, Division Bench decision of High Court of Himachal Pradesh in Surinder Kumar v. State of Himachal Pradesh and Anr. [1985 (3) SLR Page 254]. 6. Shri P.D. Gupta, learned Deputy Advocate General, submits that the petitioner has been acquitted giving benefit of doubt and appeal is in continuation of the initial criminal proceedings against him. 7. The matter was adjourned to enable counsel for parties to find out whether any other decision deals with the subject. No other decision except Surendra Kumar's case (supra) is brought to our notice. Therefore, we proceed to examine the matter on the available facts and status of legal position. Rule 9(1)(b) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 provides that:-- "Where a case against him in respect of any criminal offence is under investigation, enquiry or trial." Therefore, a person can be placed under suspension. One of the circumstances for placing the Government servant under suspension is when a case against him in respect of any criminal offence is under investigation, inquiry or trial. Part IV of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, deals with suspension. Rule 9(1) provides for circumstances when a person can be placed under suspension by the Government. Petitioner was placed under suspension under the above quoted Rules which means he remains under suspension when criminal offence against him is under investigation, enquiry or trial. Investigation, enquiry or trial is over after announcement of judgment dated April 30, 2001. Therefore, this provision stands exhausted and petitioner can revert back to service. To hold otherwise would mean reading something in the provision which it does not provide. Further it may cause immense hardship to person to wait for the final adjudication of the matter by the Final Court. Therefore, submission of Shri P.D. Gupta, learned Dy. Advocate General cannot be appreciated to the extent that once a person is placed under suspension, he continues under suspension during the appeal as well. Further it may cause immense hardship to person to wait for the final adjudication of the matter by the Final Court. Therefore, submission of Shri P.D. Gupta, learned Dy. Advocate General cannot be appreciated to the extent that once a person is placed under suspension, he continues under suspension during the appeal as well. We find ourselves in agreement with the decision of High Court of Himachal Pradesh in Surendra Kumar's case (supra) being nearest to the point involved in this case rather deciding the same question and also that preferment of appeal is not continuance of the trial. 8. Therefore, what emerges out of the aforesaid discussion is that the Tribunal has not considered the matter in right perspective, therefore, order dated 17.1.2002 is set aside. The petitioner shall be taken back into service and allowed benefits available to him in accordance with law.” 6. This view was also followed by this Court in a subsequent decision passed in W.A. No.268/2019 (Jagdish Kapasiya v. Revenue Department and others). 7. Accordingly, this Court is of the considered opinion that once a person is acquitted by the trial Court and appeal against the said judgment is filed in a higher forum or in High Court, the pendency of that appeal cannot deprive the employee to get retiral benefits for which he is otherwise entitled. 8. In such circumstances, this petition is allowed. The respondents are directed to release 100% pension to the petitioner and also release the amount of gratuity for which he is otherwise entitled. 9. The aforesaid exercise be completed by the respondent/authority within a period of three months from today. 10. The petition filed by the petitioner is, accordingly, allowed.