Bhagwan Das Pandey (B.D. Pandey) vs The State Of Madhya Pradesh
2022 Latest Caselaw 13966 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR


                      BEFORE
       HON'BLE SHRI JUSTICE SHEEL NAGU

                 W.P. No.10245 of 2018

     Between:-

     BHAGWAN DAS PANDEY,
     (B.D. PANDEY), S/O LATE SHRI
     RAM SAJIVAN PANDEY, AGED
     ABOUT : 67 YEARS, RETIRED AS AN
     ACCOUNTANT IN THE OFFICE OF
     BLOCK DEVELOPMENT OFFICER,
     MAWAI, DISTT. MANDLA(M.P.)

                                         .....PETITIONER

     (BY SHRI RAHUL MISHRA, ADVOCATE)

     AND

1.   STATE OF M.P.,
     THROUGH ITS PRINCIPAL SECRETARY,
     SCHEDULE CASTE AND SCHEDULE
     TRIBES    DEPARTMENT,   VALLABH
     BHAWAN, BHOPAL(M.P.)

2.   THE COMMISSIONER,
     TRIBAL WELFARE, SATPURA BHAWAN,
     BHOPAL(M.P.)
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       3.      DIVISIONAL DEPUTY COMMISSIONER,
               ADIWASI AVAM ANUSUCHIT JATI
               VIKAS (IN FRONT OF DISTRICT HOME
               GUARD OFFICE), JABALPUR DIVISION,
               DISTT. JABALPUR(M.P.)

       4.      THE     COLLECTOR    (TRIBAL
               DEVELOPMENT), MANDLA, DISTT.
               MANDLA(M.P.)

       5.      THE      COLLECTOR        (TRIBAL
               DEVELOPMENT)       COLLECTORATE
               CAMPUS, DISTT. JABALPUR(M.P.)

       6.      THE ASSISTANT COMMISSIONER,
               TRIBAL DEVELOPMENT, MANDLA,
               DISTT. MANDLA(M.P.)

       7.      THE BLOCK DEVELOPMENT OFFICER,
               MAWAI, DISTT. MANDLA(M.P.)

       8.      THE DISTRICT PENSION OFFICER,
               MANDLA, DISTT. M,ANDLA(M.P.)

       9.      THE ACCOUNTANT GENERAL(A&E)-II
               MADHYA PRADESH, JHANSI ROAD,
               GWALIOR(M.P.)
                                         ....RESPONDENTS

               (BY SHRI NAVIN DUBEY, ADVOCATE
               FOR RESPONDENT NO.1)
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       Reserved on                    :      23.09.2022
       Pronounced on                  :      31.10.2022
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                                      ORDER

The present petition filed under Article 226 of the Constitution by a person who has attained the age of superannuation on 31.07.2011 from the post of Accountant under the Department of Tribal Welfare, prays for following reliefs:

"(i) To issue a writ in the nature of "Mandamus" command the respondents to release full Pension, Gratuity, GIS/FBF, encashment of leave and arrears of 6th Pay Commission, with interest @ 12% per annum from the date of entitlement till it is actually paid, which have withheld without authority of law.

(ii) To issue a writ in the nature of "Mandamus" command the respondent No.8 to release the Pension Payment Order w.e.f. 01.08.2011 of the petitioner's and pay the arrears of pension with interest @ 12% per annum.

(iii) To declare that after acquittal of the petitioner's recorded in Special Criminal Case No.7/2005 by judgment dated 23.02.2010, the action of the respondents the suspension order dated 15.04.2005 did not revoked as well as withholding pension whereas GPF, the gratuity, GIS/FBF, encashment of leave and arrears of 6th Pay Commission not disburse are illegal and arbitrary which has unnecessarily harass to the low paid employee.

(iv) To direct the respondents to regularize the period of suspension w.e.f. 15.04.2005 to 31.07.2011 under FR-54(B) and pay the salary with Dearness Allowances.

(v) To issue a writ in the nature of Mandamus Command the Resp. No.9 to recalculate te GPF amount after adjusted missing credits from his account no.CP/NMP/32800 with statutory interest.

(vi) To grant any other writ/direction/relief which this Hon'ble Court deemed fit and proper may also be granted in the facts and circumstances of the case, including cost of the litigation in favour of the petitioner."

2. Learned counsel for the rival parties are heard on the question of admission so also final disposal.

3. Learned counsel for the petitioner has placed heavy reliance on the decision rendered by Division Bench of this Court rendered in 2002 (5) MPHT 11 (Ram Ratan Tiwari vs State of M.P. and others) and subsequent decision of the Division Bench of this Court rendered on 02.04.2019 in WA No.268/2019 at Indore Bench and two more Single Bench decisions, all of which were decided in favour of the petitioners therein.

3.1 Bare perusal of Division Bench judgment in the case of Ram Ratan Tiwari (Supra) and all the subsequent decisions as mentioned above have come to a conclusion in favour of the employees concerned therein to which this Court has no reason to differ. However, this Court would like to assign additional reasons though for coming to the same conclusion in favour of petitioner.

3.2 Before adverting the process of adjudication, it would be appropriate to refer to undisputed factual matrix attending the instant case in a chronological manner as follows:

Dates                                        Events
15.04.2005     The petitioner is placed under suspension due to filing of

charge-sheet on 23.3.2005 in respect of Crime No.40/1999 in connection with offences punishable u/S 13(1)(B) read with Section 13(2) of Protection of Corruption Act and Section 409 and 468 of IPC.

23.02.2010 Petitioner stands acquitted in Special Case No.7/2005 of all the charge vide Annexure P/5.

03.07.2010 The Departmental Enquiry initiated by charge-sheet dated

16.01.2003 ends in imposing miner penalty of withholding of one increment non-cumulatively vide Annexure P/8. 2011 The prosecution filed appeal before the High Court against acquittal vide Criminal Appeal No.481/2011 (pending till date) 31.07.2011 Petitioner retired on attaining the age of superannuation and is granted provisional pending to the tune of 75% of full pension. 08.12.2011 The provisional pension is enhanced to 90%. 28.07.2012 The State declines to further enhance the provisional pension due to pendency of Criminal Appeal No.481/2011

4. The question that falls for consideration before this Court is whether in the given facts and circumstances where the judicial proceedings initiated and also concluded in acquittal prior to retirement, can the employer invoke Rule 64 of M.P. Civil Services (Pension) Rules, 1976 (for brevity "Pension Rules") to deny grant of full pension especially when the disciplinary proceedings ended prior to retirement by imposing miner penalty.

5. The decisions relied upon by the counsel for petitioner have taken a view in favour of the employees by either holding that pendency of an appeal against acquittal does not fall within the definition of judicial proceedings u/S 2(i) of the Criminal Procedure Code or relying upon the textual interpretation of Rule 9(1)(b) of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (for brevity "CCS (CCA) Rules") which inter alia contemplates suspension of services of government servant in the event of involvement in any criminal offence under investigation, inquiry or trial.

5.1 Thus, in all the decisions relied upon by petitioner, either resort has been taken to the definition of the judicial proceedings u/S 2(i) of the Cr. P.C. or it has been impliedly held that since Rule 9(1)(b) of the CCS (CCA) Rules

does not contemplate the eventuality of pending trial to be a good cause for suspension, the State cannot deny full pension during pendency of the criminal appeal against acquittal.

6. This Court in all its humility sees a different reason to allow this petition.

6.1 If a comparative analysis is made of Rule 9(4) and Rule 64 of the Pension Rules, then it is vivid that the Pension Rules do not contemplate and therefore, do not permit sanction of provisional pension in the attending facts and circumstances in this case. The detailed reasons are given below;

6.2 For ready reference and convenience, Rule 9 and Rule 64 of the Pension Rules are reproduced below in entirety:

"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;

(2) (a) The departmental proceedings [xxx], if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.

(b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re- employment:-

(i) shall not be instituted save with the sanction of the Governor;

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings:

(a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or

(b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government. (3) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-cum- retirement gratuity as provided in Rule 64, as the case may be, shall be sanctioned:

Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than the minimum pension as determined by the Government from time to time:

Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned," had been substituted:

Provided also that-

(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;

(b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and

(c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of Rule

43. (5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.

(6) For the purpose of this rule-

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."

64. Provisional pension where departmental or judicial proceeding may be pending. - (1) (a) In respect of Government servants refer to in sub- rule (4) of Rule 9 the Head of Office shall authorise the payment of provisional pension not exceeding the maximum pension and 50% of gratuity taking into consideration the gravity of charges levelled against such Government servant, which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension.

(b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

(c) Provisional gratuity shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office after adjusting dues mentioned in sub-rule (2) of Rule 60, under intimation to Audit Office. Payment of provisional pension/gratuity made under sub-rule (1) shall be adjusted against final retirement benefit sanctioned to such Government servant upon conclusion of such proceedings, but no recovery shall be made where the pension/gratuity finally sanctioned is less than the provisional pension/gratuity or the pension/gratuity is reduced or withheld either permanently or for a specified period. [ x x x]"

7. The competent authority under the Pension Rules is vested with power to sanction provisional pension. This power emanates from Rule 64 of the Pension Rules. Thus, the source of this power to sanction provisional pension instead of full pension is to be found in Rule 64 alone. If the facts and circumstances attending a particular case do not satisfy the requirement for invoking Section Rule 64 of the Pension Rules then the competent authority has no power to withhold grant of full pension, admissible under the Pension Rules as a matter of right.

7.1 Rule 64 of Pension Rules begins with the expressions "in respect of government servants referred to in sub-rule (4) of Rule 9 ....". This obviously circumscribes the power of competent authority to invoke Rule 64 of Pension Rules for grant of provisional pension, only and only in such cases of government servants which are referred to in Rule 9(4) of the Pension Rules.

7.2 A close scrutiny of Rule 9(4) of the Pension Rules (as reproduced above) reveals that this provision deals with following kinds of cases of government servants:-

(i) Government servants retired on superannuation or otherwise; and

(ii) against whom departmental or judicial proceedings are instituted (meaning thereby those government servants against whom departmental proceedings are instituted after retirement); or

(iii) Such government servants against whom departmental proceedings are continued under Rule 9(4) of the Pension Rules.

7.3 Rule 9(2) of the Pension Rules deals with such government servants against whom departmental proceedings were instituted while in service. For such class of government servants, the competent authority is empowered to treat such departmental proceedings (commenced prior to the retirement) as deemed to be continued after retirement to be concluded by authority which commenced these proceedings subject to the report being submitted to the Governor. Thus, Rule 9(4) of the Pension Rules merely contemplates departmental proceedings but does not refer to any judicial proceedings.

7.4 The facts of this case reveal that departmental proceedings against the petitioner had been concluded by imposing miner penalty on 03.07.2011 which was prior to the date of superannuation i.e. 31.07.2011 and; therefore, no departmental proceedings were pending at the time when petitioner retired. Thus, for this reason the present case does not fall within the ambit of Rule 9(2)(a) of the Pension Rules.

7.5 The only other reason for attracting the provision of Rule 9(4) of the Pension Rules, is that the departmental or judicial proceedings were instituted against the petitioner after his retirement.

7.6 The expressions "institution of departmental enquiry and judicial proceedings" are expressly defined in Rule 9(6) of the Pension Rules, to mean issuance of charge-sheet in a departmental proceedings and filing of complaint/charge-sheet before the Court in a judicial proceedings.

7.7 In the instant case, petitioner superannuated on 31.07.2011. However, the charge-sheet in the judicial proceedings against petitioner had been filed way back on 23.03.2005 in a Special Case No.07/2005 in which petitioner had been acquitted on 23.02.2010 (prior to superannuation). As regards the departmental proceedings, the charge-sheet had been filed on 16.01.2003 and the order of miner penalty of withholding of one increment non-cumulatively was imposed on 03.07.2010. Both these dates of institution as well as penalty are prior to the date of superannuation.

7.8 Thus, it is clear that the case of petitioner cannot fall under Rule 9(4) of the Pension Rules as neither the departmental nor the judicial proceedings were instituted after superannuation of petitioner.

8. Having so held that the case of petitioner does not fall within the ambit of Rule 9(4) of the Pension Rules, the occasion of Rule 64 of Pension Rules getting attracted does not arise.

8.1 In the given facts and circumstances, the competent authority had no jurisdiction in law to have invoked Section 64 for merely granting provisional pension instead of full pension.

8.2 It is settled in service jurisprudence that pension is not a bounty but a precious right to livelihood of a pensioner which can be withheld, stopped or withdrawn only within the four corners of enabling statutory provision. In the absence of any enabling statutory provision for withholding/stopping/ withdrawing pension, the State or any of its functionaries are not empowered in law to do so.

9. This Court thus has no hesitation to hold that the respondents had no authority in law to invoke Rule 64 of Pension Rules and grant only provisional pension to the petitioner on his retirement instead of full pension. The corollary to the above is that the extent to which the pension was withheld by issuing only provisional pension is unlawful.

10. Accordingly, this petition stands allowed in following terms:

(i) The respondents are directed by way of writ of mandamus to release the withheld pension by granting full pension to petitioner with effect from 01.08.2011;

(ii) While working out arrears of pension, the functionaries of the State are also directed to extend the benefit of revision of pension which may have taken place since August, 2011;

(iii) The other retiral benefits, if withheld, be also released forthwith;

(iv) The petitioner shall be entitled to interest @ 10% per annum on the arrears of pension from the due date till the date of payment;

(v) Since the respondents have denied part of source of livelihood of petitioner pensioner and has compelled him to approach this Court in the evening of his life in this avoidable piece of litigation which appears to be abhorrent to the litigation policy of the State of M.P., this Court deems it appropriate to grant cost of this litigation to petitioner which is quantified at Rs.10,000/- (Rupees Ten Thousand Only) which shall be paid by the respondents by crediting the same in bank account of petitioner through digital transfer within a period of 30 days and compliance report be filed within further 30 days, failing which the matter be listed under the caption of "Direction as PUD for execution qua cost".

(SHEEL NAGU) JUDGE

YS Digitally signed by YOGESH KUMAR SHIRVASTAVA Date: 2022.10.31 18:36:52 +05'30'