Hari Shankar Soni vs The State Of Madhya Pradesh
2023 Latest Caselaw 5406 MP

                               1

     IN THE HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                            BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

                    ON THE 1st OF APRIL 2023

                WRIT PETITION No.24367 of 2021

       Between:-

       HARI SHANKAR SONI, S/O SHRI
       GOPICHANDRA SONI, AGED 63 YEARS,
       OCCUPATION: RETIRED, R/O LIG 980-A
       DARPAN COLONY, THATIPUR, GWALIOR
       (M.P.)


                                      .....PETITIONER

       (BY SHRI ARUN KATARE - ADVOCATE )

       AND
1.     STATE OF MADHYA PRADESH THROUGH
       THE PRINCIPAL SECRETARY,
       DEPARTMENT OF SERICULTURE, GOVT.
       OF M.P. MANTRALAYA, VALLABH
       BHAWAN, BHOPAL (M.P.)
2.     THE COMMISSIONER, SERICULTURE,
       SERICULTURE DIRECTORATE, M.P.
       BHOPAL.
3.     THE DISTRICT SERICULTURE OFFICER,
                                       2

       COLLECTORATE CAMPUS, GUNA,
       DISTRICT GUNA (M.P.)

                                                     .....RESPONDENTS

       (BY SHRI SHAILENDRA SINGH KUSHWAHA - GOVT.

       ADVOCATE )

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       This petition coming on for admission this day, Hon'ble
Shri Justice Milind Ramesh Phadke passed the following:

                               ORDER

1. The petitioner has filed the present petition under Article 226 of the Constitution of India for direction to the respondents to pay the outstanding amount of gratuity, leave encashment along with interest and to issue PPO in favour of the petitioner.

2. Learned counsel for the petitioner submits that the petitioner was appointed in the year 1979 on the post of Lower Division Clerk. Thereafter he was promoted on the post of Junior Inspector in the month of April, 1980 and thereafter he was promoted on the post of Senior Inspector in the month of August, 1982. In November, 1985 the petitioner was promoted from the post of Senior Inspector to the post of Field Officer. Learned counsel for the petitioner further submits that at the time of retirement there was no departmental enquiry pending against the petitioner. After the retirement of the petitioner, the petitioner requested to the respondents to issue the outstanding post retiral

dues, but the same was not paid. Thereafter the petitioner filed a representation, but till date gratuity and leave encashment have not been paid to him and the same has been withheld and PPO has also not been issued so far. Learned counsel for the petitioner submits that the case of the petitioner is squarely covered by the order passed by the Coordinate Bench in W.P.No.28881/2018 on 26.8.2020. The order dated 26.8.2020 reads thus:

"Present petition has been filed being aggrieved by illegal and arbitrary action on the part of respondents, whereby, they are not making payment of gratuity to the petitioner despite the petitioner stood superannuated from the post of Seed Certification Officer on 31.8.2017. It is submitted that the petitioner was initially appointed on the post of Seed Certification Inspector vide order dated 4.12.1980 and after completion of successful tenure of service, he stood retired on 31.8.2017. It is submitted that after retirement of the petitioner, he has submitted various representations to the respondent authorities but of no consequence, therefore, he was supposed to serve a legal notices through his counsel for demand of justice pointing out the fact that the retiral dues of the petitioner were settled but gratuity amount has not been paid, but the same is also of no consequence. It is submitted that after superannuation of the petitioner on 31.8.2017, FIR was registered against the petitioner by E.O.W for offences punishable under Section 420, 467, 468, 471, 474 and 120B of IPC read with Section 3 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988. The aforesaid FIR was registered with respect to the allegation levied against the petitioner for his work done in 2010. It is submitted that withholding of gratuity by the respondent department after retirement of an employee like petitioner is per se illegal for the simple reason that no proceedings were initiated by respondent authorities till

superannuation of the petitioner. It is submitted that even the FIR has been registered after superannuation of the petitioner which is not disputed. It is argued that the aforesaid question is no more res-integra and has been settled in a series of judgments passed by coordinate benches of this court. He has relied upon the judgment passed by the High Court of M.P. Bench at Indore in W.P.No.8514 of 2013 vide order dated 10.3.16 (Najma Khan Vs. State of M.P.) and W.P.No.8047 of 2016 vide order dated 21.12.2017 (Arun Kumar Pandey Vs. State of M.P.) by Jabalpur Bench. It is argued that the Hon. Court has held that the respondents are having no right to withhold gratuity after retirement in case where the charges are not framed against the delinquent employee till his retirement. It is submitted that the aforesaid order passed in W.P.No.8047 of 2016 was put to test by State Govt. and the respondents before Division Bench of the Principal Seat at Jabalpur in Writ Appeal No.801 of 2018 which has been rejected affirming the judgment passed by the writ court, vide order dated 19.3.2020. Aforesaid law laid down by this court is fully applicable in the present case. Therefore, he prays for disposal of the writ petition in the law laid down by the Division Bench of this court.

Per contra, counsel appearing for the State has submitted that they have adopted the return filed by respondent No.3 in the matter. Counsel appearing for the respondent No.3 fairly admits the fact that the controversy has been put to rest by this Court in W.P.No.8047 of 2016 (Arun Kumar Pandey Vs. State of M.P.) and by W.P.No.8514 of 2013 (Najma Khan Vs. State of M.P.) and has argues that the matter may be disposed of with a direction to the petitioner to submit detailed representation to the respondent authorities as well as to the State Govt. who shall consider the case of the petitioner and decide the same taking into consideration the law laid down in the aforesaid cases.

Heard learned counsel for the parties and perused the record.

From the record, it is seen from the record that petitioner was admittedly retired on 31.8.2017 and the FIR was registered on 10.11.2017. There is no dispute with respect to the fact that till superannuation of the petitioner, no FIR was registered against the him. The coordinate Bench of this court in W.P.No.8047 of 2016 has held as under ;

"16. As discussed above on the facts it is luculent that challan in the investigation/inquiry of the Lokayukt has not yet filed, therefore, merely registration of the FIR and offence by the Lokayukt Establishment would not debar the petitioner because the judicial proceedings have not deemed to be instituted on the date of attaining the age of superannuation by the petitioner. As apparent from the definition of the judicial proceeding in case evidence is regularly taken on oath it be called as judicial proceeding, therefore, the context as referred in Rule 64 even to take a departmental action by the departmental head as a subsequent act of judicial proceeding instituted, however, the said situation would not arise until the charge sheet has been filed, on framing the charge and evidence is started, therefore, the investigation and enquiry made by the Lokayukt would not come within the connotation "judicial proceedings instituted" and "judicial proceeding", therefore, the departmental head is not supposed to withhold pension or gratuity of the petitioner. Thus, in view of the foregoing discussion, the stand taken by the State Government in their return is contrary to the spirit of Rules 9 and 64, therefore, the said stand is hereby repelled.

17. The judgment of the Apex Court in the case of Dhirendra Pal Singh (supra) is relevant which is in reference to Article 351-A of the U.P. Civil Service Regulations wherein pari materia provision as enumerated under Rule 9 of the Pension Rules, has been dealt with. The Court said, indeed, it is true that in the said judgment, scope of Rule 64 has not been dealt with but the contingency regarding judicial proceedings instituted has been considered, therefore, to such extent my view fortifies from the judgment of the Apex Court.

Simultaneously, in the case of D.D.Tiwari (D) thr. Lrs Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and others, the Apex Court has laid down the similar preposition of law analyzing the scope of pending judicial proceeding and concluded that the gratuity be paid along with the interest @ 9% per annum. In the case of Ramesh Chandra Gupta Vs. State of M.P. and others reported in I.L.R. (2010) M.P. 2506 the issue involved in the present case is not similar but the issue of withholding of pension by the departmental head has been dealt with and it was not found in accordance with law and without observing principle of natural justice. In the case of Prahlad Amarchya (supra) the issue akin to the present case has been dealt with in the context of the judgment of Union of India Vs. K.V. Jankiraman reported in (1991) 4 SCC 109. The Indore Bench of this Court referring the provision of Rule 9(6)(b) of the Pension Rules has dealt with the issue of meaning of judicial proceeding, however, in the said case the Court directed for payment of pension and gratuity to the petitioner.

18. In the present case, the inescapable conclusion which can be arrived at is that the action of the respondents of

withholding of gratuity and non payment of pension is not in confirmity to the provision of Rule 9 and Rule 64 of the Pension Rules as discussed hereinabove.

19. In view of the foregoing discussion, this petition succeeds and is hereby allowed. Respondents are directed to extend the benefit of gratuity and pension to the petitioner within a period of two months from the date of communication of this order. The amount of gratuity and the arrears of the pension be calculated and paid within the time so specified along with the interest @ 7% per annum (bank rates prevalent now-a-days). In case the benefit of GIS, FBF and leave encashment has not yet been paid to the petitioner, it be paid at the rate as specified hereinabove".

It is seen that the law laid down in this case is fully applicable in the present facts and circumstances of the case. In such circumstances, the order passed in W.P.No.8514 of 2013 as well as in W.P.No.8047 of 2016 applies mutatis mutandis to the case of the petitioner also. In such circumstances, this petition stands disposed of in the aforesaid terms as directed in W.P.No.8514 of 2013 and W.P.No.8047 of 2016."

He, therefore, prays that the petition filed by the petitioner may be disposed of in light of the order passed in W.P.No.8514 of 2013 as well as in W.P.No.8047 of 2016.

Learned Govt. Advocate could not dispute that the case of petitoner is not covered by the decision passed in W.P.No.8514 of 2013 as well as in W.P.No.8047 of 2016.

Thus, in light of the aforesaid, the order passed in W.P.No.8514 of 2013 as well as in W.P.No.8047 of 2016 applies

mutatis mutandis to the case of the petitioner also. In such circumstances, this petition stands disposed of in the aforesaid term as directed in W.P.No.8514 of 2013 and W.P.No.8047 of 2016.

E-copy/Certified copy as per rules/directions.

(Milind Ramesh Phadke) Judge Pawar/-

ASHISH PAWAR 2023.04.01 17:47:40 +05'30'