Gujarat High Court
State Of Gujarat vs Vasantkumar Mangabhai Khuman on 25 June, 2021
Bench: Mr. Justice R.M.Chhaya, Nirzar S. Desai
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 490 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 11020 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 490 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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STATE OF GUJARAT
Versus
VASANTKUMAR MANGABHAI KHUMAN
==========================================================
Appearance:
MS JYOTI BHATT, AGP (1) for the Appellant(s) No.
1,2,3,4,5
MS VIDITA D JAYSWAL(6730) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 25/06/2021
Page 1 of 9
Downloaded on : Tue Sep 07 14:25:40 IST 2021
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Admit. Ms. Vidita Jayswal, learned advocate
waives for the respondent. With consent of the
learned advocates appearing for both the sides, the
matter is taken up for final hearing forthwith.
2. Feeling aggrieved and dissatisfied by the
judgment and order dated 29.10.2020 passed by the
learned Single Judge in SCA No. 11020 of 2020, the
appellants-original respondents have preferred this
intra court appeal under clause 15 of the Letters
Patent.
3. Ms. Jyoti Bhatt, learned AGP has taken this
Court through the factual matrix arising out of this
appeal and has contended that the learned Single
Judge has not considered the merits of the matter
while passing the impugned order. It has also been
contended by Ms. Jyoti Bhatt that necessary and
important documents like Form 22 as specified under
Rule 147 of the Gujarat Civil Services (Pension)
Rules, 2002 are not considered at all. It was
further contended by Ms. Jyoti Bhatt, learned AGP
that the learned Single Judge has failed to
appreciate the seriousness of the matter inasmuch as
an FIR was lodged under the Prevention of Corruption
Act, 1988 against the respondent and a preliminary
inquiry has already commenced. It is further
contended that the order impugned is even otherwise
erroneous, unreasonable and bad in law and deserves
to be quashed and set aside.
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
4. Per contra, Ms. Vidita Jayswal, learned advocate
for the respondent has supported the impugned
judgment and order and has contended that the learned
Single Judge has rightly considered the provisions of
the Gujarat Civil Services (Pension) Rules, 2002 and
has rightly come to the conclusion that the
respondent is entitled to post-retiral benefits. Ms.
Jayswal, learned counsel appearing for the respondent
submitted that the appellants as an authority have no
right to withhold the retiral benefits more
particularly gratuity and pension of the respondent-
original petitioner. Ms. Jayswal has also relied
upon the Division Bench Judgment of this Court in the
case of Rasikbala Jaintilal Mehta Vs. State of
Gujarat reported in 2017 JX(Guj) 808 and in the case
of Ganpatbhai Haribhai Patel Vs. State of Gujarat
reported in 2002 JX(Guj) 2255 to buttress her
arguments. Ms. Jayswal submitted that the impugned
judgment and order is legal and proper and no
interference is called for. Ms. Jayswal therefore
submitted that the appeal itself is misconceived and
the same deserves to be dismissed with cost.
5. No other or further submissions have been made
by the learned counsel appearing for the parties.
6. Before reverting to the submissions made, it
would be appropriate to refer to the facts arising in
this appeal. That the respondent-original petitioner
joined service as Armed Police Constable on
25.09.1982 in Rajkot Rural Police Station and has
retired as Police Inspector from Gir Somnath Temple
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
Police Station on 31.08.2019 on attaining
superannuation after service of almost 37 years. It
is the case of the respondent-original petitioner
that on 16.11.2019, the concerned authority sent the
requisite details and documents to the Chief Accounts
Officer of the Director General of Police and vide
letter dated 17.01.2020, the Directorate, Pension and
Provident Fund Office, Gujarat State, fixed the
pension of the respondent. The facts reveal that on
23.01.2020, the respondent was asked to submit
original PPO letter, last pay certificate with Form
22 and first page of the Bank passbook for
disbursement of the pension. It is contended by the
respondent that the respondent had already received
an amoutn of Rs. 6,57,668/- on 24.10.2019 as General
Provident Fund and an amount of Rs. 7,17,920/- as
Leave Encashment on 04.02.2020. The facts reveal
that after retirement of the Respondent, an FIR being
FIR No. 04/2019 came to be registered with the ACB
Police Station, Gir Somnath for the offences
punishable under Section 7, 12 and 13(2) of the
Prevention of Corruption (Amendment) Act, 2018 on
12.12.2019, cognizance of which was not taken and no
departmental inquiry came to be initiated against the
respondent-original petitioner for the said
misconduct before the date of his superannuation
either by serving charge-sheet or by extension of his
service and the retiral benefits and the pension of
the petitioner came to be withheld. The said action
gave rise to the writ petition being SCA No. 11020 of
2020. The respondent herein-original petitioner
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
prayed for writ of mandamus or any other appropriate
writ directing the respondent authorities, i.e., the
appellants herein to pay the pension and all other
consequential retiral benefits with interest at the
rate of 12% on the delayed payment from the date of
retirement till its realisation.
7. Various contentions have been raised and
affidavit in reply was also pressed in service by the
appellants-original respondents mainly on two aspect,
first is that an FIR has been lodged against the
respondent-original petitioner under the provisions
of the Prevention of Corruption Act and that the
respondent herein-original petitioner has not availed
provisional pension and it was contended before the
learned Single Judge that the action taken by the
respondent authorities, i.e., the appellants herein,
is in accordance with law and Rules and there is no
illegality or arbitrariness on the part of the
Respondent authorities. The original petitioner
relied upon the provisions of Rule 45 read with Rule
10 and 24(3) of the Gujarat Civil Services (Pension)
Rules, 2002 and relied upon the judgment of
Ganpatbhai Haribhai Patel Vs. State of Gujarat being
SCA No. 11487/02. It was contended by the original
petitioner that the action of the authorities, i.e.,
the appellants of withholding of the pension though
the pension papers were prepared on 17.01.2020 is
illegal. Relying upon the definition of "judicial
proceedings" as defined in Section 2(i) of the Code
of Criminal Procedure, it was submitted by the
learned counsel for the original petitioner that the
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
proceedings would amount to judicial proceedings only
if the cognizance is taken by the Court. Same
contentions were raised by the respondent before the
learned Single Judge as narrated hereinabove.
Referring to Rule 24(3) of the Rules, the learned
Single Judge came to the conclusion that as decided
by this Court in the case of Ganpatbhai Haribhai
Patel (supra), Rule 254 of the Rules would not apply
to the facts of this case and came to the conclusion
that the original petitioner would be entitled to
pension irrespective of FIR having been lodged. The
learned Single Judge also considering the argument
put forward by the appellants in form of para 11 of
the affidavit-in-reply to the effect that the
respondent did not avail provisional pension is held
to be without application of mind. The learned
Single Judge having appreciated the provisions of the
Payment of Gratuity Act, 1972, has come to the
conclusion that there is no justification in
withholding the amount of gratuity on the face of the
record of the petition and accordingly, the petition
came to be allowed as prayed for and also awarded
interest upon the arrears of the retiral dues at the
bank rate application to the fix deposits of the
duration of twelve months.
8. In facts of this case, it would be appropriate
to refer to the judgment of the Division Bench in the
case of Rasikbala Jaintilal Mehta (supra). The
Hon'ble Division Bench has observed thus -
"6.1 Considering Rule 145 of the Pension Rules
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
and the fact that before her retirement, neither
any criminal prosecution was lodged against the
original petitioner nor even departmental
inquiry was initiated against her and even
subsequently also, no departmental inquiry has
been initiated against her thereafter, and
therefore, when the learned Single Judge has
directed the original respondents to pay all the
retirement benefits/pensionary benefits to the
petitioner, it cannot be said that the learned
Single Judge has committed any error,
considering Rule 145 of the Pension Rules. Even
in a case where criminal prosecution is lodged
or departmental inquiry is initiated before the
retirement, in that case also, if the concerned
employee is entitled to provisional pension,
certainly in a case where criminal prosecution
is lodged after the date of retirement, the
petitioner shall be entitled to pension and
pensionary benefits. Under the circumstances, as
such no error is committed by the learned Single
Judge in allowing the petition. Under the
circumstances, Letters Patent Appeal No. 976 of
2017 preferred by the District Primary Education
Officer, District Primary Education Committee,
Junagadh ie., the original respondent no. 2
deserves to be dismissed and is accordingly
dismissed. Consequently, Civil Application No.
8210 of 2017 preferred in LPA No. 976 of 2017
also deserves to be dismissed and is accordingly
dismissed.
Similar view is taken by the learned Single Judge in
the case of Ganpatbhai Haribhai Patel (supra), which
is referred and relied upon by the learned Single
Judge.
9. It is a matter of fact that when the respondent-
original petitioner retired from service on
31.08.2019 on attaining superannuation, no FIR was
lodged. As recorded by the learned Single Judge, the
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
FIR came to be lodged against the respondent under
the provisions of Prevention of Corruption Act on
12.12.2019, cognizance of which was not taken. It is
an admitted position that no departmental inquiry has
been initiated and no charge-sheet is issued to the
respondent. Following the ratio laid down in the
case of Rasikbala Jaintilal Mehta (supra) and
considering the provisions of the relevant rules of
Gujarat Civil Services (Pension) Rules, 2002, more
particularly Rule 24, such undisputed facts that no
departmental proceedings for the alleged act of the
respondent were initiated during the subsistence of
the employer-employee relationship between the
respondent-original petitioner and the appellant
authorities, there is no question of fixing
provisional pension. As decided by the plethora of
judgement of Hon'ble Apex Court as well as this
Court, pension is not a bounty, but a right and as
rightly held by the learned Single Judge that as a
necessary corollary a statutory obligation on the
part of the appellants-original respondents as
employer. The learned Single Judge has rightly
considered the aspect of pension as well as
entitlement of gratuity under the provisions of
Payment of Gratuity Act, 1972 and has rightly granted
post-retiral benefits along with interest at the bank
rate applicable to the fix deposits.
10. We are in total agreement with the view taken by
the learned Single Judge that no new material or
facts have come on record of this case to take
another view. Consequently, the appeal deserves to
C/LPA/490/2021 JUDGMENT DATED: 25/06/2021
be dismissed and is hereby dismissed. The time to
release the post-retiral benefits to the respondent-
original petitioner is extended for a further period
of eight weeks along with interest as provided for by
the learned Single Judge. As the appeal is
dismissed, connected Civil Applications also stand
dismissed. However, there shall be no order as to
costs.
(R.M.CHHAYA, J)
(NIRZAR S. DESAI,J)
BIJOY B. PILLAI
