Gauri Shankar Soni vs The State Of Madhya Pradesh
2022 Latest Caselaw 16562 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                              ON THE 14 th OF DECEMBER, 2022
                                                WRIT PETITION No. 598 of 2019

                           BETWEEN:-
                           GAURI SHANKAR SONI S/O LATE SHRI K.P. PRASAD
                           SONI, AGED ABOUT 64 YEARS, OCCUPATION: RETIRED
                           ASSISTANT GRADE II TAHSIL OFFICE JATARA DISTT.
                           TIKAMGARH      HOUSE    OF    D.D.    GANGELE,
                           NARSINGGARH PURVA, CHHATARPUR (MADHYA
                           PRADESH)

                                                                                            .....PETITIONER
                           (BY SHRI D. K. UPADHYAY, ADVOCATE )

                           AND
                           1.    THE STATE OF MADHYA PRADESH THR.
                                 PRINCIPAL SECRETARY REVENUE DEPARTMENT
                                 VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

                           2.    COLLECTOR THE STATE OF MADHYA PRADESH
                                 DISTRICT TIKAMGARH MP (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                           (BY SHRI AMIT KUMAR SHARMA, GOVT. ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

Petitioner has filed this petition under Article 226 of the Constitution of India making a prayer to quash impugned order dated 17.12.2018 and direct the respondents authorities to pay entire pension of petitioner.

2. Collector, District Tikamgarh has passed the impugned order dated 17.12.2018. Details of said order is as under:-

Signature Not Verified "Petitioner was convicted and sentenced to undergo Rigorous Signed by: MONSI M SIMON Signing time: 12/19/2022 2:42:12 PM

Imprisonment for period of 3 years - 4 years and fine of Rs.2,000 - 2000/- under Section 7 and 13(2) of Prevention of Corruption Act by Sessions Court by its judgment dated 09.04.2018. In view of same, order dated 20.08.2018 was passed. Order dated 28.11.2015 was withdrawn and petitioner was not to be paid provisional pension from 09.06.2018 till further orders. Order dated 20.08.2018 was challenged in W.P. No.24775/2018. Said writ petition was disposed of vide order dated 23.10.2018 directing authorities to consider representation of petitioner after giving opportunity of hearing to petitioner. Petitioner was heard and Collector has affirmed earlier

order regarding non-payment of provisional pension by its order dated 17.12.2018."

3. Counsel appearing for petitioner has challenged impugned order dated 17.12.2018 on grounds that order is without jurisdiction because petitioner is retired government employee and any order of withholding or withdrawing pension under Rule 9 (1) of M.P. Civil Services (Pension) Rules, 1976 can be passed by Governor. Secondly, petitioner assailed the order on ground that Rule 8(b) provides 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 Government from time to time. In view of Rule 8 (b), petitioner ought to have been paid pension.

4. State Government has not filed reply in the writ petition. Respondents were granted last opportunity to file reply on 10.02.2021. Thereafter, one more opportunity was granted to State Government for filing reply, but reply has not been filed. Govt. Advocate supported the order passed by Collector and made Signature Not Verified Signed by: MONSI M SIMON Signing time: 12/19/2022 2:42:12 PM

prayer for dismissal of writ petition.

5. Petitioner has challenged the impugned order dated 17.12.2018 by which Collector has withdrawn provisional pension on the ground that Collector has no authority and jurisdiction to pass the impugned order because petitioner is a retired Government employee and any order in respect of withholding of pension can be passed under Rule 9 by Governor and as per proviso to Rule 8, amount of part of pension withdrawn cannot be reduced to less than minimum. Rules 8 and 9(1) of M.P. Civil Services (Pension) Rules, 1976 is quoted as under:-

"8. Pension subject to future good conduct.-(1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.

(b) The pension sanctioning authority may, by order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:

Provided that no such order shall be passed by an authority subordinate to the authority competent at the time of retirement of the pensioner, to make an appointment to the post held by him immediately before his retirement from service:

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) Where a pensioner is convicted of a serious crime by a court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgment of the court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1):-

(a) serve upon the pensioner a notice specifying the action Signature Not Verified Signed by: MONSI M SIMON Signing time: 12/19/2022 2:42:12 PM

proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal; and

(b) take into consideration the representation, if any, submitted by the pensioner under clause (a).

(4) where the authority competent to pass an order under sub-rule (1) is the Governor, the State Public Service Commission shall be consulted before the order is passed.

(5) An appeal against an order under sub-rule (1), passed by any authority other than the Governor, shall lie to the Governor and the Governor shall in consultation with the State Public Service Commission pass such order on the appeal as he deems fit.

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];"

6. From perusal of Rule 8(1)(b) it is clear that pension is to be continued on future good conduct of a pensioner. Pension sanctioning authority may by order in writing withhold or withdraw the pension or part thereof if pensioner is convicted of serious crime or is found guilty of grave misconduct. Said order has a rider that same may be passed by an authority who is competent to retire Signature Not Verified Signed by: MONSI M SIMON Signing time: 12/19/2022 2:42:12 PM

the petitioner or make an appointment to the post held by such pensioner immediately before his retirement from service. This makes it clear that pension sanctioning authority or appointing authority may pass order in writing to withhold or withdraw the pension or part thereof.

7. Petitioner does not have a case that Collector is not pension sanctioning authority or appointing authority of petitioner, therefore, order dated 17.12.2018 could not be held to be passed by an authority incompetent to pass the said order. Rule 8 further provides that where authority competent to pass order under Sub-rule (1) is Governor then State Public Service Commission shall be consulted before order is passed. Rule 8(2) provides that where pensioner is convicted of serious crime by court of law then action under Clause (b) of Sub- rule(1) is taken in light of judgment of the court. Petitioner is also at liberty to prefer an appeal under Rule 8(5) before Governor.

8. In view of above, no fault can be found in order dated 17.12.2018 as it is not the case of petitioner that Collector is not pension sanctioning authority or appointing authority of petitioner. Petitioner has also raised a ground that as per proviso of Rule 8(b) where part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the minimum pension as determined by Government from time to time.

9. Said proviso is not applicable in the case of petitioner because part of pension is not withheld or withdrawn but whole of pension has been withdrawn. Petitioner has further raised a ground that only Governor can withhold or withdraw the pension of retired Government servant. Governor can withhold or withdraw the pension of a Government servant if His Highness is appointing or pension sanctioning authority of a Government servant. In other cases appointing authority of the post held by delinquent employee can pass the Signature Not Verified Signed by: MONSI M SIMON Signing time: 12/19/2022 2:42:12 PM

order.

10. In view of same, writ petition filed by the petitioner is dismissed.

(VISHAL DHAGAT) JUDGE mms

Signature Not Verified Signed by: MONSI M SIMON Signing time: 12/19/2022 2:42:12 PM