Rajesh Kumar Patel vs The State Of Madhya Pradesh
2022 Latest Caselaw 16480 MP

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                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                            ON THE 13 th OF DECEMBER, 2022
                                             WRIT PETITION No. 20547 of 2021

                           BETWEEN:-
                           RAJESH KUMAR PATEL S/O LATE SHRI RAMANUJ
                           PRASAD PATEL, AGED ABOUT 63 YEARS, OCCUPATION:
                           RETIRED DRAFTSMAN R/O 309 KHERMAI WARD
                           DURGA CHOWK BHANTALAIYA JABAPUR M.P.
                           (MADHYA PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI T.S.RUPRAH, SENIOR ADVOCATE WITH SHRI UMASHANKAR
                           TIWARI, ADVOCATE )

                           AND
                           1.    THE STATE OF MADHYA PRADESH THR. DEPUTY
                                 SECRETARY URBAN      DEVELOPMENT    AND
                                 HOUSING      DEPARTMENT     MANTRALAYA
                                 VALLABH BHAWAN BHOPAL M.P. (MADHYA
                                 PRADESH)

                           2.    DEPUTY SECRETARY URBAN DEVELOPMENT
                                 AND   HOUSING DEPARTMENT MANTRALAYA
                                 BHOPAL (MADHYA PRADESH)

                           3.    CHIEF ENGINEER URBAN DEVELOPMENT AND
                                 HOUSING DEPARTMENT MANTRALAYA BHOPAL
                                 (MADHYA PRADESH)

                           4.    SUPERINTENDENT         ENGINEER URBAN
                                 DEVELOPMENT AND HOUSING DEPARTMENT
                                 OFFICE OF THE JOIN DIRECTOR, URBAN
                                 DEVELOPMENT AND HOSUSING DEPARTMENT,
                                 JABALPUR, DIVISION JABALPUR (MADHYA
                                 PRADESH)

                                                                                   .....RESPONDENTS
                           (BY SHRI AMAN PANDEY, PANEL LAWYER )

                                 This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: NEETI TIWARI
Signing time: 12/16/2022
10:44:48 AM
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                           following:
                                                                 ORDER

This order shall also govern the disposal of W.P. No.20611/2021 and W.P.No.20613/2021. For the sake of convenience, facts of W.P.No.20547/2021 are being taken note of.

Originally in these petitions the order of suspension was assailed by the petitioners. However, during pendency of the petitions the petitioners have already been superannuated. Thus, grievance by efflux of time stands in a narrow compass. The petitioners' grievance now only pertains to extension of benefit of gratuity which has been withheld by the respondents.

Learned senior counsel for the petitioner contends that in the present case

the petitioner have already been superannuated, therefore, challenge to the order of suspension has rendered otiose. It is further contended by learned senior counsel that 90% of pension of the petitioners is already being paid. However, the gratuity has not been paid to the petitioners as yet even in absence of any order of withholding the same. It is further contended by the senior counsel that there is no statutory provisions, which entitles the respondents to withhold the amount of gratuity, even during pendency of a criminal case. Thus, in view of the law laid down by the Division Bench of this Court in W.A.No.772/2019, respondents be directed to release the gratuity in favour of the petitioners forthwith.

Per contra, learned counsel for the State submits that a case under Section 7-A, Section 13(1)(B) and Section 13(2) of the Prevention of Corruption Act, 1988 has been registered against the petitioner and the trial is still pending and therefore, in view of pendency of aforesaid criminal case, the petitioner is not entitled for the amount of gratuity and accordingly, while taking Signature Not Verified Signed by: NEETI TIWARI Signing time: 12/16/2022 10:44:48 AM

this Court to para 8 of the return submits that the amount of gratuity cannot be granted to the petitioner inasmuch as a criminal case under the aforesaid section is pending before the trial Court.

Heard rival submissions.

Perused the record.

It is no more res integra that the dues like pension and gratuity are not bounty as held by the Apex Court in the case of State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another reported in (2013) 12 SCC 210 in paragraph nos. 8 and 16 as under:-

"8. It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara v. Union of India (1983) 1 SCC 305 by D.A. Desai, J. who spoke for the Bench, in his inimitable style, in the following words : (SCC pp. 319- 20, paras 18-20)

18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?

19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

20. The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Signature Not Verified Signed by: NEETI TIWARI Signing time: 12/16/2022 10:44:48 AM

court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh (1976) 2 SCC 1.

It is thus a hard earned benefit which accrues to an employee and is in the nature of 'œproperty'ÂÂ. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India.

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16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in œpropertyÂÂ. Article 300-A of the Constitution of India reads as under:

300-A.Persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law.

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."

The issue pertaining to pendency of criminal case was also taken note of Signature Not Verified Signed by: NEETI TIWARI Signing time: 12/16/2022 10:44:48 AM

by the Division Bench of Indore in W.A.No.772/2019 (Sevaram Khandekar Vs. State of Madhya Pradesh and others) held as under:

The respondents can certainly withhold the pension of the appellant/petitioner, in case, he is convicted in the trial which is pending against him. So far as leave encashment amount is concerned, there is no provision which disentitles the appellant/petitioner during the pendency of the criminal case from encashing the leave in his account. Therefore, the present writ appeal is allowed and the respondents are directed to release 50% of the gratuity as directed by the learned Single Judge as well as the amount which is in the account of the petitioner under the leave encashment head.

Thus, the Division Bench while taking into consideration the fact that there was a criminal case pending against the petitioner therein under the provisions of Corruption Act, held that the petitioner therein was entitled for 50% amount of gratuity. Therefore, in light of the decision of Division Bench of Indore in Sevaram Khandekar (supra), the petitioner is also entitled for gratuity to the extent of 50%.

In view of aforesaid, the respondents are directed to release 50% amount of gratuity to the petitioners within a period of 60 days from the date of production of certified copy of the order.

The petition stands allowed to the extent indicated hereinabove.

(MANINDER S. BHATTI) JUDGE anu

Signature Not Verified Signed by: NEETI TIWARI Signing time: 12/16/2022 10:44:48 AM