Smt. Uma Parihar vs The State Of Madhya Pradesh
2022 Latest Caselaw 12232 MP

                               1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR

                            BEFORE

       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                 ON THE 14th OF SEPTEMBER, 2022

                 WRIT PETITION NO. 18672 OF 2022

     Between:-

     SMT. UMA PARIHAR W/O SHRI BALRAM
     PARIHAR, AGED ABOUT 62 YEARS,
     OCCUPATION RETIRED ASSESSMENT
     TEACHER     FROM   GOVT.    GIRLS
     PRIMARY    SCHOOL   MALHARGARH
     BLOCK MUNGAWALI, R/O VILLAGE
     MALHARGARH,              DISTRICT
     ASHOKNAGAR (MADHYA PRADESH)
                                                   ........PETITIONER

     (BY SHRI G.S. SHARMA - ADVOCATE)

     AND

1.   THE STATE OF MADHYA PRADESH
     THROUGH THE PRINCIPAL SECRETARY,
     DEPARTMENT OF SCHOOL EDUCATION,
     VALLABH BHAWAN, BHOPAL (MADHYA
     PRADESH)

2.   THE     COMMISSIONER,           PUBLIC
     INSTRUCTION,  BHOPAL          (MADHYA
     PRADESH)

3.   THE DISTRICT EDUCATION OFFICER,
     DISTRICT ASHOKNAGAR (MADHYA
     PRADESH)

4.   THE DISTRICT TREASURY OFFICER,
     ASHOKNAGAR,            DISTRICT
     ASHOKNAGAR (MADHYA PRADESH)
                                            2

 5.    THE BLOCK EDUCATION OFFICER,
       BLOCK   MUNGAWALI,     DISTRICT
       ASHOKNAGAR (MADHYA PRADESH)

                                                                ........RESPONDENTS

       (SHRI A.K. NIRANKARI - GOVERNMENT ADVOCATE FOR STATE)
----------------------------------------------------------------------------------------
       This petition on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following relief:-

7.1 That, the respondents authority be directed to release the Pension, Gratuity and Other pensionery benefits to the petitioner.

7.2 That, the respondents authority to be directed to decide the representation Ann. P/1 and passed the order and communicate the petitioner immediately.

7.3 That, the other relief which deemed suitable by the Hon'ble Court may kindly be directed to granted.

2. The necessary facts for disposal of present petition in short are that the petitioner was working on the post of Assistant Teacher and was posted in Government Primary School Nandankhedi, Block Mungawali, District Ashoknagar. The petitioner was charge-sheeted by the police for offence under Sections 307, 294, 506, 34 of IPC. The petitioner was arrested on 03.02.2008 in Crime No.40/2008 and, accordingly, she was placed under suspension vide order dated 27.02.2008 by the District Education Officer, District Ashoknagar. Thereafter, the petitioner was released on bail. The Trial Court by judgment dated 15.02.2018 convicted the petitioner and other co-accused persons for offence under Sections 307, 307/34 of IPC and sentenced the petitioner to undergo

rigorous imprisonment of 10 years. The petitioner and other co-accused persons have filed criminal appeal, which is pending and the High Court has suspended the execution of sentence and, accordingly, the petitioner is on bail. After the conviction of the petitioner, no departmental enquiry was initiated. Even no order of dismissal from service was passed, but suspension order remained in force and ultimately, she stood retired on 31.03.2022 after attaining the age of superannuation. The petitioner submitted an application for sanctioning pension and the other retiral dues, but no action has been taken and, accordingly, the present petition has been filed seeking the above-mentioned relief.

3. To buttress his contention, counsel for the petitioner has relied upon the judgments passed by the Supreme Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Shrivastav and others reported in (2013) 12 SCC 210 and in the case of State of West Bangal Vs. Haresh Banerrzee and others reported in (2006) 7 SCC 651 and the judgments passed by this Court in the case of Ram Sewak Mishra Vs. State of Madhya Pradesh and another reported in 2017 (4) MPLJ 428 (F.B.), Dau Ram Maheshwar Vs. State of Madhya Pradesh and another reported in 2017 (1) MPLJ 640 and Mahima Chand Gangwar Vs. State of Madhya Pradesh and others reported in 2016 (2) MPLJ

403.

4. Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that in order to receive pension, an employee must have good conduct. The petitioner has already been convicted and under these circumstances, if pension and other retiral dues have not been paid, then it cannot be said that the respondents are at fault.

5. Heard the learned counsel for the parties.

6. According to the petitioner, after her conviction, the respondents did not dismiss her from service and she was allowed to superannuate w.e.f. 31.03.2022 and during this period, she was kept under suspension. Rule 8 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 reads 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 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.

7. Thus, future conduct shall be an implied condition for every grant of pension and its continuance under the Rules. Undisputedly, the petitioner has already been convicted for offence under Section 307 of IPC and has been saddled with rigorous imprisonment of 10 years. Rule 8(2) specifically provides that 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 judgment and relating to such conviction. Rule 8(1)

(b) requires that the pension sanctioning authority by order in writing may withhold or withdraw pension or part thereof, whether permanently or for a specific period, if the pensioner is convicted in serious crime or is found guilty of grave misconduct. Thus, it is clear the pension of the pensioner can be stopped / withheld by an order passed by the pension sanctioning authority. It is the case of the petitioner that no such order has been passed by the pension sanctioning authority. It is also the case of the petitioner that after the conviction of the petitioner, she was never dismissed from her service and was allowed to superannuate.

8. It is not the case of the petitioner that the petitioner had ever informed the department about her conviction. It is not her case that in spite of due information to the department, department did not dismiss her and allowed her to remain under suspension.

9. Be that whatever it may.

10. For the time being, it is sufficient to hold that in case of conviction for serious offence, the authorities are well within their rights to withhold or stop the pension of such employee. However, it is the case of the petitioner that no order under Rule 8(1)(b) of the Rules, 1976 has been passed by the pension sanctioning authority. Accordingly, this petition is disposed of with the following observations:-

(i) If the pension of the petitioner has been withheld on account of her conviction for offence under Section 307 of IPC, then the pension sanctioning authority shall pass an order as required under Rule 8(1)(b) of the Rules, 1976, if not already passed.

(ii) The respondents are also directed to take a decision on the issue as to whether the petitioner was rightly allowed to continue in service under suspension even after her conviction under Section 307 of IPC or not and necessary speaking order in this regard shall be passed by the respondent in this regard.

(iii) Let the entire exercise be completed within a period of three months from the date of receipt of certified copy of this order.

It is made clear that this Court has not considered the merits of the case as well as the gravity of offence allegedly committed by the petitioner. Respondents shall be free to take their decision on their own

after considering the facts and circumstances of the case and in accordance with law.

(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.09.15 19:15:19 +05'30'