Kishorbhai Nanjibhai Patel vs State Of Gujarat
2022 Latest Caselaw 4980 Guj

      C/SCA/10336/2019                                 ORDER DATED: 09/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10336 of 2019

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                         KISHORBHAI NANJIBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
KSHITIJ M AMIN(7572) for the Respondent(s) No. 3
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M
SHAH(5399) for the Respondent(s) No. 2
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 09/06/2022

                                 ORAL ORDER

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for a direction that the respondent authorities be directed to pay provisional gratuity to the petitioner and provisional pension till the final outcome of Criminal Appeal No. 16 of 2018 pending before this court.

2. The facts giving rise to the present petition, in brief, are as under:

2.1 The petitioner was working as an English Section Writer. He was thereafter promoted as Junior Clerk in the year 1987. The petitioner retired on superannuation on 30th November 2017. During his service tenure, a complaint was lodged under the provisions of the Prevention Of Corruption Act, 1988. The petitioner was tried by the Special Court in (ACB) Case No. 19 of 2007. By the judgement of the sessions court

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dated 28.12.2017, the petitioner is convicted for 3 years rigorous imprisonment and fine of Rs.2500/- on failure of which imprisonment of three months is imposed. Being aggrieved and dissatisfied with the above judgement, the petitioner has preferred an appeal before the High Court being Criminal Appeal No. 16 of 2018. The court by its order dated 10.01.2018 has admitted the appeal and suspended the sentence of the trial court.

2.2 Departmental proceedings were also initiated against the petitioner and which ultimately resulted in a punishment order of withholding five increments with future effect wide order dated 25.01.2018. A show cause notice was issued by the Principal District Judge calling upon the petitioner as to why the penalty imposed upon the petitioner should not be enhanced. Review proceedings have also been dismissed by order dated 11.4.2022.

3. Ms. Harshal Pandya, learned counsel for the petitioner would argue that reading the order of penalty passed by the disciplinary authority would indicate that they did not think it fit to impose penalty of dismissal from service looking to the past record of the petitioner. In other words, once the disciplinary authority had come to the conclusion and the conviction was after superannuation of the petitioner and since there was no dismissal from service, there was no reason why at least pending the criminal appeal, the petitioner be not given the benefit of provisional pension as well as gratuity.

3.1 In support of her submission, Ms. Harshal Pandya would rely on Rule 145 of the Gujarat Civil Services (Pension) Rules, 2002 (for short 'the Rules'). She would submit that a government servant against whom

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the prosecution is not concluded is entitled to the benefit of provisional pension and gratuity. She would therefore submit that since the criminal appeal is pending before the High Court, the prosecution is not concluded and therefore even as the sentence is suspended the petitioner is entitled to the benefit of provisional pension and gratuity. She would therefore submit that therefore the petition deserves to be allowed. It is her submission that it is well settled that an appeal is continuous of trial and therefore as per the provision of Rule 145 of the Rules, the petitioner is entitled to the benefit of provisional pension and gratuity.

4. Mr. Shalin Mehta, learned Senior Advocate with Mr. Hemang Shah, learned advocate has appeared for the respondents and also for the the High Court on its administrative side. Mr. Mehta would submit that reading of Rule 145 would itself make it clear that the argument of the learned counsel for the petitioner does not deserve to be considered. Reading Rule 145 of the Rules, Mr. Mehta would submit that the term 'prosecution being not concluded' is elaborated and explained to mean that the judgement of the trial court is not delivered. The term 'prosecution being not concluded' cannot be extended to mean deemed extension of the prosecution and the department has to wait till the outcome of the appellate proceedings. He would therefore submit that the language of the rule is very clear that once the judgement of the trial court is delivered recording a conviction, the prosecution is concluded and the benefit of provisional pension cannot be granted to the petitioner and the benefit of the rule can only be given if there is no judgement of the trial court till date.

5. Having heard the learned counsel for the respective parties, the question that needs to be considered by this Court is whether the

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petitioner whose appeal against the judgement and order of conviction is pending can be given the benefit of provisional pension and gratuity.

5.1 Rule 145 of the Gujarat Civil Services (Pension) Rules, 2002 reads as as under:

"145. Provisional payment of pension and gratuity where charge sheet is issued or judicial proceedings are instituted in respect of the Government employee against whom the departmental inquiry is pending : (1) In case of a Government employee against whom the Departmental Inquiry is initiated or prosecution is granted (i.e. charge- sheet is issued or FIR is filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the order of the competent authority on the report of the inquiry officer is not issued or the judgment of trial court is not delivered, as the case may be), the Pension Sanctioning Authority shall sanction provisional payment of full amount of pension as determined under sub- rule (3) of rule 142. No provisional payment of death-cum- retirement gratuity shall be sanctioned.

(2) In case of a Government employee against whom the Departmental Inquiry is initiated or prosecution is granted (i.e. charge sheet is issued or FIR is filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the order of the competent authority on the report of the inquiry officer's not issued or the judgement of trial court is not delivered, as the case may be), and two years have lapsed since the date of retirement, the Pension Sanctioning Authority shall sanction the provisional payment of pension and death-cum-retirement gratuity as under:-

(i) 100 per cent of pension as determined under sub-rule (3) of rule 142 if the same is not sanctioned under sub-rule (1).

(ii) 100 per cent of gratuity as determined under sub-rule (3) of rule 142 subject to withholding of after 10 per cent or fifteen thousand rupees which ever is less."

       C/SCA/10336/2019                               ORDER DATED: 09/06/2022



5.2      Reading the rule itself makes it clear that in case of a government

employee against whom prosecution is granted i.e. if FIR is filed but the same is not concluded, the pension sanctioning authorities shall sanction provisional payment of full amount of pension. The term 'prosecution is not concluded' is explained in the latter bracketed portion to mean that the judgement of the trial court is not delivered. In the facts on hand, it is apparently clear that the judgement of the trial court was delivered on 28.12.2017 convicting the petitioner for three years' rigorous imprisonment and fine of Rs.2500/-. Mere pendency of an appeal therefore cannot be termed as prosecution not concluded.

5.3 The supreme court in the case of KC Sareen versus CBI, Chandigarh [(2001) 6 SCC 584] has observed that the submission of the appellant therein that a trial can logically reach its finality only when the appellate court decides the matter cannot be held to be absolute. When the Appellate Court admits the appeal filed in challenge of conviction and sentence for the offence under Prevention of Corruption Act, the Superior Court should normally suspend the sentence of imprisonment until the disposal of the appeal because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after filing of the appeal. But the suspension of conviction of the offence under the Prevention of Corruption Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter. Mere pendency of an appeal would not temporarily absolve the appellant of the findings of guilt.

6. The Delhi High Court in the case of P.C Misra, Danics/Joint Director (Retd.) vs. Union of India and others rendered in W.P. (C) 12470 of 2018 extensively considered the issue whether pendency of a

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criminal appeal and suspension of sentence can mean that the conviction has not attained finality since the appeal is a continuation of an original proceeding. Relying on the decision of the supreme court in the case of K.C Sareen (supra), the Delhi High Court held as under:

"18. The thrust of the petitioner‟s submission is that since his criminal appeal is pending before the High Court against his conviction and sentence, and as the sentence has been suspended by the appellate court, his conviction has not attained finality since appeal is a continuation of the original proceedings. He also relies upon Rule 69(1)(b), which provides that the provisional pension shall be authorized during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. The submission is that the judicial proceedings cannot be said to have attained conclusion in view of the pendency of the criminal appeal.

19. The aforesaid submission of the petitioner has not merit.

20. In K.C. Sareen v. CBI, Chandigarh, (2001) 6 SCC 584, the appellant was charged for offences under section 13(2) of the Prevention of Corruption Act and sections 120, 201 and 420 IPC. He was convicted at trial, inter alia, under section 13(2) of the Prevention of Corruption Act. The appeal of the appellant before the High Court against his conviction and sentence was admitted and his sentence was suspended. Founded upon the appellant‟s conviction, the disciplinary proceedings were initiated against him and he was dismissed from service. The appellant moved the High Court to have his conviction also suspended during pendency of his criminal appeal. That application was rejected. The appellant then approached the Supreme Court. The submission of the appellant before the Supreme Court was:

"7. ... ... as a trial can logically reach its final end only when the appellate court decides the matter the conviction passed by the trial court cannot be treated as having become absolute... ...".

21. The appellant placed reliance on the judgment of the Supreme Court in Akhtari Bi v. State of Madhya Pradesh, (2001) 4 SCC 355, wherein the Supreme Court observed that:

"5. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction."

22. The submission of the appellant premised on the observation made in Akhtari Bi (supra) was rejected by the Supreme Court by observing:

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"8. By the said observation this Court did not mean that the conviction and sentence passed by the trial court would remain in limbo automatically when they are challenged in appeal. The said observation was made in a different context altogether when notice of the executive government was drawn to the need to appoint requisite number of Judges to cope up with the increased pressure on the existing judicial apparatus, and for highlighting the consequences of non-filling existing vacancies of Judges in the High Courts. We are unable to appreciate how the said observation can be culled out of the said context for the purpose of using it in a different context altogether such as this where the convicted accused is seeking to have an order of conviction suspended during the pendency of the appeal".

23. The Supreme Court observed that:

"11. ... ... when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter".

24. The observations made by the Supreme Court in the following paragraph of K.C. Sareen (supra) are most pertinent in the present context. The said paragraph reads as follows:

12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity.

Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension

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of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction." (emphasis supplied)

25. The position is no different in the present case. The ratio of the aforesaid judgment is clearly applicable in the facts of the present case. The petitioner is liable to be treated as corrupt until he is exonerated by a superior court on merits and not on mere technical grounds - such as lack of, or irregular sanction to prosecute. Mere pendency of his appeal does not even temporarily absolve him from the findings of guilt. Though the petitioner stands convicted and sentenced by the Trial Court, he is nevertheless seeking to assert his claim for provisional pension which, in the fact and circumstances, is equivalent to his regular pension, during pendency of his criminal appeal. Thus, the petitioner is asserting his claim, as if he is a government servant who has retired without any blemish, even though he stands convicted and sentenced by the trial court for conduct which also tantamounts to grave misconduct. He is seeking to draw, on a monthly basis, provisional pension equivalent to his regular and full pension, which would not be recoverable even if his criminal appeal were to be dismissed.

26. In our view, the State is not obliged to financially support a government servant who has been found guilty in a case of corruption by the criminal court- either provisionally (during pendency of this criminal appeal), or otherwise. Such a government servant, who stands convicted in a corruption case, ought to be considered as a parasite and a burden, not only on the government, but on the society at large. There is no reason why public money should be doled out to him, only to await the decision of the appellate court, which is pending at his behest against his conviction and sentence. Of course, the situation could change if, and when, the criminal appeal of the convicted Government Servant is allowed. If the exoneration is on merits, he may be entitled to claim revocation of the Order Under Rule 19(i) of the CCS (CCA) Rules or Rule 9 of the Pension Rules- as the case may be.

However, if the exoneration is on purely technical grounds, whereas

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the findings of fact which constitute grave misconduct remain undisturbed, he may not even be entitled to derive benefit of his exoneration. That would have to be examined by the Government in each case, on the facts of that case.

27. Reliance placed by Mr. Mishra on the judgment in Jitender Kumar Srivastava & Anr., (supra) is misplaced. In that case, while in service, the government servant was charged under various sections of the IPC and PC Act. When he retired on superannuation, the trial was still not complete. The State of Jharkand, inter alia, sanctioned 90% provisional pension to the respondent. The remaining 10% pension and salary payable during the suspension period was withheld pending outcome of the criminal case/ departmental inquiry against him. He was also paid leave encashment and gratuity. Aggrieved by the withholding of his 10% pension and non release of other dues, the respondent preferred a writ petition before the High Court. On the direction of the High Court, the respondent made a representation to the government, which was rejected. Consequently, he again approached the High Court and the High Court dismissed the writ petition. The Supreme Court - in the course of its judgment, observed that the right to receive pension had been recognized as a right to property by the Constitution Bench in its decision in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330. The Supreme Court also observed that there was no provision or rule for withholding provisional pension, or for withholding pension/ gratuity when the departmental proceedings or judicial proceedings are still pending.

28. The aforesaid material fact distinguishes the present case from Jitender Kumar Srivatava (supra). As noticed above, in the present case, the judicial proceedings have resulted in the conviction of the petitioner, though his criminal appeal is pending consideration before this court. But as noticed above, for the purpose of invoking Rule 9(1) of the CCS Pension Rules, it is sufficient that the grave misconduct of the government servant has been established in the departmental or judicial proceedings, irrespective of the pendency of the appeal either before a departmental or a judicial authority, as the case may be.

29. In N.K. Suparna (supra), the petitioner retired on attaining the age of superannuation while being prosecuted before the Special CBI Court in a corruption case. The petitioner stood convicted and sentenced on the corruption charge on 31.12.2001 i.e. one month before attaining the age ofsuperannuation. The petitioner‟s appeal before the High Court against the conviction and sentence was preferred and was pending, wherein the sentence awarded to her was suspended. The President of India invoked his power under Rule 9(1) of the Pension Rules and forfeited the pension and gratuity payable to her. The petitioner N.K.Suparna raised a similar plea, that since the criminal appeal was pending, the judicial proceedings have not come to an end and the criminal appeal was a continuation of the trial. The Karnataka High Court interpreted clause (b) of Rule 69(1) of the CCS Pension Rules to mean that a delinquent employee would be entitled to provisional pension from the date of retirement upto and including the

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date on which the final order may be made by the competent authority after conclusion of departmental or judicial proceedings. The words "after conclusion of departmental or judicial proceedings" were interpreted as conclusion of the appellate proceedings and not the original proceedings on the premise that an appeal is a continuation of the original proceedings. The Division Bench held that the final order envisaged under Rule 9(1) of the CCS Pension Rules - in terms of clause (b) of sub rule (1) of Rule 69, would require to be passed by the President only after the conclusion of the departmental or judicial proceedings. The Division Bench observed:

"8. ... ... In the instant case, since the judicial proceedings, we mean the launching of the prosecution against the petitioner have not been concluded so far in terms of finality, the President of India invoking the power conferred upon him under sub-rule (1) of Rule 9 would not arise. Therefore, the impugned order passed by the President of India in the purported exercise of power under Rule 9(1) of the Rules should be condemned as one without authority of law inasmuch as the necessary condition to invoke that power did not exist as on the date of the impugned order nor does it exist as on today also".

30. The decision in N.K. Suparna (supra) was assailed before the Supreme Court. The SLP was, however, withdrawn by the petitioner on 20.08.2008. Thus, the issue decided by the Karnataka High Court in N.K. Suparna (supra) has not received the seal of approval of the Supreme Court.

31. Having given our anxious consideration to the matter, we cannot persuade ourselves to agree with the view taken by the Karnataka High Court in N.K. Suparna (supra). Under clause (b) of Rule 69(1), the relevant expression used is "from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority". Pertinently, while making the said rule by resort to proviso to Article 309 of the Constitution of India, the President uses the expression "final" only once i.e. in relation to orders which are passed by the competent authority. However, no such word or expression is used before the word "conclusion of departmental or judicial proceedings". If the intendment of the President - while framing the said rule was to release provisional pension to the government servant upto the date of "final" conclusion of departmental or judicial proceedings, the President would have used the said expression "final" before the words "conclusion of departmental or judicial proceedings", just as he used the expression "final" in respect of the orders to be passed by the competent authority. Thus, the plain grammatical and literal interpretation of clause (b) of Rule 69(1) does not support the interpretation that the conclusion of departmental or judicial proceedings means the "final" conclusion of departmental or judicial proceedings.

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32. Rule 69(2), inter alia, provides that no recovery shall be made from the provisional pension after the conclusion of the proceedings if the pension finally sanctioned is less than the provisional pension, or the pension is reduced or withheld either permanently, or for a specified period. Thus, whatever is released by way of provisional pension to the government is not secured or recoverable from him. Rule 69(1)(a) provides that the provisional pension shall be equal to the maximum pension which would have been admissible on the basis of the qualifying service of the government servant. Thus, if the interpretation sought to be advanced by the petitioner were to be accepted, it would mean that the government would have to pay - month after month, the provisional pension, which - in most cases would be equal to the full pension, even though the government servant stands convicted by the Trial Court of conduct which tantamount to a serious and grave misconduct, merely because his criminal appeal is pending before the higher Court. This could not have been the intendment of the President while framing either Rule 69(1)

(b), or Rule 9(1) of the Pension Rules.

33. The decision in the appeal may not come for years for myriad reasons. Firstly, the heavy pendency of criminal appeals would come in the way of disposal of the appeal on an early date. Secondly, even the Government servant/ appellant may seek adjournments to delay the disposal of the appeal.

Is it to be accepted that a government servant - who stands convicted of a corruption charge before a criminal Court, should continue to receive provisional pension, just as good as the full pension, only on account of pendency of his criminal appeal? In our view, the answer to this question has to be an emphatic "No".

34. If the interpretation of the petitioner were to be accepted, the conviction would not attain finality even for purposes of Rule 19 of the CCS (CCA) Rules, or Rule 9 of the Pension Rules even after dismissal of the Criminal Appeal, because the petitioner would still have a right to prefer a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. There would be no end to this process as the petitioner could file one petition after another and seek review, recall, or even file a curative petition. Pertinently, the conviction of the petitioner has not been stayed by the appellate court and only his sentence has been suspended. Therefore, for all purposes, he is a convict. To permit such a convict to draw provisional pension - which in most cases would be equal to the full pension, would be to make a mockery of the law. The same would mean that despite his conviction by the criminal court involving a serious and grave case of misconduct, he would get away without any adversity, and would continue to remain a burden on the State. Thus, in our view, for purposes of Rules 9(1) and 69(1)(b) of the Pension Rules, the judicial proceedings have attained conclusion upon the conviction of the petitioner by the trial Court, and the competent authority is entitled to pass final orders for withdrawing the whole or part of the pension permanently or for a specified period; for forfeiture of the Gratuity,

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and; for ordering recovery of the pecuniary loss caused to the government due to the grave misconduct established in the judicial proceedings.

35. The decision in K.C. Sareen (supra) was not brought to the notice of the Karnataka High Court when it decided N.K. Suparna (supra). The Punjab & Haryana High Court in Central Administrative Tribunal, Chandigarh Bench (supra), primarily, relies upon N.K. Suparna (supra) and Akhtari Bi (supra). Unfortunately, the decision of the Supreme Court in K.C. Sareen (supra) was not noticed even by the Punjab and Haryana High Court Bench while rendering its decision."

7. For the aforesaid reasons, there is no merit in the present petition and the same is required to be dismissed. Accordingly, the same stands dismissed. Notice is discharged. Interim relief, if any, shall stand vacated.

(BIREN VAISHNAV, J) DIVYA