Madhya Pradesh High Court
Alok Shukla vs State Of Madhya Pradesh on 4 October, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
WRIT PETITION No. 2529 of 2013
BETWEEN:-
ALOK SHUKLA S/O LATE K.D.SHUKLA,
AGED ABOUT 58 YEARS, OCCUPATION:
ASSISTANT ENGINEER (RETIRED)
MAINTENANCE SUB DIVISION MOTI
JHEEL PUBLIC HEALTH ENGINEERING
DEPARTMENT, R/O 12 TAGORE NAGAR
UNIVERSITY ROAD GWALIOR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI BRIJESH SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
PUBLIC HEALTH ENGINEERING
DEPARTMENT MANTRALAYA GOVT. OF
M.P. VALLABH BHAWAN BHOPAL M.P.
(MADHYA PRADESH)
2. ENGINEER-IN-CHIEF, PUBLIC HEALTH
ENGINEERING SERVICES, (MADHYA
PRADESH)
3. CHIEF ENGINEER, PUBLIC HEALTH
ENGINEERING, PHE GWALIOR REGION,
(MADHYA PRADESH)
EXECUTIVE ENGINEER, PHE
DEPARTMENT, MAINTENANCE
4.
DIVISION NO.2 MOTI JHEEL, GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI M.S.JADON - GOVERNMENT ADVOCATE)
2
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ORDER RESERVED ON : 23.08.2023
ORDER PASSED ON : 04.10.2023
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This petition having been heard and reserved for order
coming on for pronouncement this day, this Court passed the
following order:-
ORDER
The present petition is preferred under Article 226 of the
Constitution seeking following reliefs:-
(1) That the respondents be directed to finalize the
pension case of the petitioner and restore the entire
pension and other post-retire dues and make the
payment of the arrears along with interest @ 10%
per annum from the date the same became due till
actual payment.
(2) Issue a writ of mandamus or any other writ, order
or direction in the nature of writ under Article 226 of
the constitution of India as this Hon'ble Court may
deem fit in facts and circumstances of the case.
(3) Cost of the petition may also be awarded.
2. Precisely stated facts of the case are that petitioner at the
relevant time was working as Assistant Engineer in the Public
Works and Health Department and was posted at Maintenance Sub-
Division, Motijheel, Gwalior. Due to personal difficulties, petitioner
applied for voluntary retirement in the year 2009 as per the
provision of Rule 42 (1) (a) of M.P. Civil Services (Pension) Rules,
1976 (hereinafter referred as "Rules, 1976") and as submitted
petitioner was having the required qualifying service for invoking
the provision of the aforesaid rules as he was initially appointed in
the department on 05.01.1981. Petitioner's application was accepted
vide order dated 28.08.2009 and accordingly, the petitioner stood
retired from the government service w.e.f. 31.08.2009.
3. Although petitioner was shown to be a suspended employee,
however, petitioner was never placed under suspension and
aforesaid mistake was rectified by issuing corrigendum to the order
of (Annexure P-1) vide order dated 29.08.2009 and it has to be read
as Assistant Engineer (Civil) and not as Assistant Engineer
(Suspended). However, to appreciate the controversy in better
perspective following list of dates and events are important:
Date Event Annexures
08/11/05 Charge sheet issued in respect to Annexure P-10
check period from 26.07.1986
to September 1995 i.e. with
respect to the event which took
place more than nine years back
and charge sheet was issued
after more than 10 years.
10/11/05 Another charge sheet issued for Annexure P/6
the check period from
29.04.1994 to 15.07.1994 and
22.11.1993 to 24.05.1994 i.e
after more than eleven years
24.01.2007 With respect to the charge sheet Part of Annexure P-
dated 10.11.2005 the enquiry 6
report was submitted by the
inquiry officer on 24.01.2007
served over the petitioner vide
letter dated 26.02.2007. In this
enquiry also the inquiry officer
has not found the charges
proved.
28.11.2007 Acting upon enquiry report the As reflected in
department took the final Annexure P-9
decision exonerating the
petitioner and the matter was
forwarded to cabinet on
28.11.2007.
08.02.2008 As the copy of the enquiry Annexure P-7
23.02.2008 report was also forwarded to
Lokayukta Organization, an
10.04.2008 objection was raised and in
regard to findings and directions
were issued to take appropriate
action
07/05/08 Petitioner being aggrieved of Annexure P-8
initiation of further inquiry
preferred W.P.No.2088/2008(s)
in which notice was issued and
stay was granted.
31.08.2009 Petitioner, Assistant Engineer PHE, Annexure P-1
Gwalior stood superannuated on:
application for voluntary
retirement under Rule 42 (1) (a) of
Pension Rules, 1976 being allowed
and minimum pension of rupees
3025/- was sanctioned.
01/06/11 In the case of identically placed Annexure P-9
person and the delinquent
officer along with the petitioner
in the departmental inquiry
namely Shri D.K. Jain Assistant
Engineer was exonerated of the
charges and the departmental
proceedings were dropped.
01/06/11 With respect to the charge sheet Part of Annexure P-
issued on 08.11.2005 i.e. P/10 10
the enquiry report was
submitted by the inquiry officer
on 24.01.2009 and 30.04.2009
and charges being not found
proved the order was passed
exonerating the petitioner from
the charges. (The same became
final) Time consumed is
approximately 6 years.
09/04/13 As petitioner stood retired with
effect from 31.08.2009 and the
minimum pension was paid to him
no review in respect to the pension
payable to the petitioner being ever
made and in view of the Pension
Rules, 1976 the petitioner being
entitled for restoration of the entire
pension filed the writ petition
praying for the relief to restore the
entire pension and make payment
of arrears along with interest @
10% per annum. No return to the
writ petition on merit was filed and
even after the final order being
passed in the pending DE and
petitioner being exonerated as the
entire pension was not restored an
application 26.06.2018 was filed
seeking interim relief in the matter
of payment of finalizing the
pension. The same was heard and
decided by this Hon'ble court vide
order 26.06.2018.
03/08/17 In view of the development i.e. Annexure P-11
Annexure P/9 being passed the
WP No. 2088/2008 (S) preferred
by the petitioner was disposed
of with the direction to the state
to pass final order in case of the
petitioner also taking note of the
order passed in D.K. Jain's case.
17.01.2018 The final order in the pending Annexure P-13
departmental inquiry was passed
exonerating the petitioner from
the charges leveled in the DE.
02/08/18 After the interim order being
passed the 90% gratuity and
provisional pension is being
sanctioned however the fact
remains that till date the pension
case of the petitioner has not
been finalized. No PPO has
been issued and to the most
surprise even the provisional
pension is not being disbursed
to the petitioner since the month
of March 2023.
4. It is the submission of learned counsel for the petitioner that
the charge-sheet issued to the petitioner on 08.11.2005 was having
same identical charges as issued on dated 10.11.2005 but the
departmental inquiry was concluded and charges in the inquiry were
not proved and therefore, competent authority passed the final order
dated 01.06.2011 exonerating the petitioner from charges. The said
order became final. Although, departmental inquiry consumed
almost 6 years.
5. Another charge-sheet issued on 10.11.2005 but two charges
were framed in the aforesaid departmental inquiry. In the said
inquiry, charges were not found to be proved by the inquiry officer
and the final decision was required to be taken by the competent
authority and instead of taking final decision, report was forwarded
to the Special Police Establishment (Lokayukta) vide memorandum
dated 10.04.2008. Petitioner was informed that SPE/Lokayukta
being not satisfied with the inquiry report directed to take further
action and has not agreed upon the finding recorded by the inquiry
officer. Therefore, the opinion of inquiry officer and letter written
by the Lokayukta were served to the petitioner. Being aggrieved by
the action of not taking the final decision and further action being
proposed, despite exoneration report of inquiry officer, petitioner
filed writ petition vide W.P.No.2088/2008(s) before this Court in
which while issuing the notices, further proceedings were stayed
vide order dated 07.05.2008 (Annexure P-8).
6. During the pendency of the aforesaid writ petition,
department further passed order dated 01.06.2011, wherein one Mr.
D.K.Jain- Assistant Engineer (a delinquent facing DE alongwith
petitioner) who has not filed the writ petition, his case has finally
been decided and on the basis of inquiry report submitted by the
inquiry officer which according to petitioner was identical to the
other persons/petitioner inquiry proceedings were dropped. Since
his inquiry was also an outcome of the recommendation made by
the Lokayukta therefore, same treatment was required to be given to
petitioner. However, petition preferred by the petitioner was kept
pending.
7. Vide order dated 03.08.2017, this Court disposed of the
petition of petitioner with a direction to the respondents to consider
the case viz-a-viz Shri D.K.Jain. In pursuance thereof, order dated
17.01.2018 (Annexure P-13) was passed in which departmental
inquiry instituted against the petitioner was closed without any
punishment. Authority considered the report of inquiry officer
exonerating the petitioner. Meanwhile, petitioner has filed instant
petition in year 2013 for finalization of his pension case. During the
pendency of this petition, vide order dated 26.06.2018, interim
order was passed in which respondent were directed to release full
pension to the petitioner forthwith if there is no otherwise legal
impediment. Till February, 2023, provisional pension was paid but
as submitted by counsel for petitioner since March, 2023, petitioner
is not getting even provisional pension.
8. According to him, gratuity was paid in the year, 2018
whereas, he retired in 2009. Therefore, acts of respondents is
arbitrary and illegal.
9. While, referring Rule, 9 (4) (b) of Rules, 1976, it is submitted
that there is no impediment in releasing the entire pension and other
post retiral claims at best after two years of institution of
departmental inquiry. Since, departmental inquiry was instituted in
2005, therefore, petitioner was entitled to get restoration of pension
in the year 2007. He relied upon the case of R.P. Kapur Vs. Union
of India & Ors. (1999) 8 SCC 110 [Para-32] and State of
Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 in
support of his submission to submit that pension is a property under
Article 300 (A) of the Constitution and therefore, pension cannot be
withheld for indefinite period. He also relied upon the case of the
decision of Division Bench of this Court in the case of Laxmi
Narayan Chaurasiya Vs. State of M.P., 2020 SCC OnLine M.P.
931 and State Of M.P. And Ors. vs R.K. Joshi And Ors. 2000 (1)
MPLJ 467 wherein payment of interest over the pension withheld
is discussed. He also relied upon the case of B.D. Dubey Vs. State
of M.P. and Ors., 2002 (3) MPLJ 483 and Shivkumari Dubey
Vs. State of M.P. and Ors., 2005 (1) MPLJ 274 and in the case of
Dr. Shrikant Kaushik Vs. State of M.P. and Ors.. passed by this
Court in W.P.No.8528/2016 on 17.03.2023.
10. Learned counsel for the respondents/State opposed the prayer
through reply and chart submitted with the synopsis submits that
90% of gratuity (Rs.5,01,355/-), pension arrears for the period of
01.09.2009 to 31.07.2018 amounting to Rs.23,55, 969/- pension for
August and September, 2018 amounting to Rs.69,558/- and for the
period October,2018 to January, 2019 salary Rs.34,779/- have been
paid. Beside that GPF Rs.12,17,338/-, Insurance amount
Rs.64,790/-, Surrender Leaves Rs.2,00,672/- and arrears of benefits
of 6th Pay Commission Rs.2,73,987/- are also paid.
11. It is the submission of learned counsel for the respondents
that since stay was operating against the cause of petitioner between
the period 07.05.2008 till 03.08.2017 for more than 9 years and
during that period no proceedings were undertaken against the
petitioner therefore, petitioner cannot claim any interest over the
said period when the stay was operating against him. Therefore, he
is not entitled for any interest over the payments. However,
respondents/Sate fairly submits that remaining dues shall be paid in
accordance with law.
12. Heard the counsel for the parties at length and perused the
documents appended thereto.
13. This is the case where petitioner is seeking his pensionary
dues as well as interest over late payment because of the pendency
of proceedings.
14. Rule-9 of Pension Rules, 1976 contemplates Right of
Governor to withhold or withdraw pension. Rule-9 (4) of Rules,
1976 is worth consideration in this regard and for better
understanding all three Clauses-(a), (b) and (c) are reproduced for
ready reference:-
"Rule-9 (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]."
15. The said clause mandates that if the departmental proceedings
which were instituted against the delinquent during or after his
retirement and if the said 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 period
of two years. Here, if petitioners contentions are accepted then
petitioner would be entitled to get his pension restored w.e.f.
November, 2007 because on 08.11.2005 and on 10.11.2005, two
charge-sheets were issued to the petitioner. However, petitioner
remained in department till 31.08.2009 and till then he was
receiving regular salary. Therefore, he cannot be granted pension till
he is superannuated. Petitioner was superannuated on 31.08.2009
therefore, period of computation as per Rule, 9 (4)(b) of Rules,
1976 may start w.e.f. 31.08.2009 therefore, contention of petitioner
deserves to be modified to the extent that he may only get any
benefit after completion of two years from the date of his retirement
i.e. 31.08.2009. Therefore, as per the import of Rule, 9(4)(b) of
Rules, 1976, petitioner may become entitled to get his pension
restored w.e.f. September, 2011.
16. So far as arguments of respondents regarding operation of
interim order dated 07.05.2008 in W.P.No.2088/2008 is concerned,
it only stays further proceedings in the inquiry against the petitioner
and it does not stay the effect of Rule-9(4)(b) of Rules, 1976
because Rule-9(4)(b) of Rules, 1976 nowhere contemplates that
restoration of pension after two years would be subject to any
interim order of any court of law. Word "Shall" as figures in Clause-
B of Rule-9(4) of Rules, 1976 mandates about the compulsive
nature of restoration of pension and since, pension rules are in
respect of pension of Government Employees/Civil Servants
therefore, it has to be read in tandem with the very object of concept
of Pension and Pension Rules. Any other interpretation would
frustrate the cause of justice because in that condition if the
Employer/State Government intends to avoid giving pension to an
employee then this mechanism would ensure denial of pension to
the delinquent on flimsy pretext. At least, some definite amount of
pension over and above minimum pension at least deserved to be
given to petitioner.
17. However, question remains in the present case is computation
of two years from which baseline. If the computation of two years is
taken from date of institution of charge-sheet i.e. 08.11.2005 then
date would come as 08.11.2007 but at that time, petitioner was in
service. Petitioner resigned on 31.08.2009 therefore, in the present
factual context, two years period can be reckoned only from date of
retirement i.e. 31.08.2009. Therefore, it is held that petitioner is
entitled for restoration of pension on 01.09.2011.
18. However, it is the submission of counsel for the petitioner
that he was paid all emoluments at belated stage and whenever, he
approached the Court, then only, he was given part of some
pensionary benefits. Since respondents have claimed that under
different heads pensionary benefits have been given but excluding
those emoluments which have already been given, for other
pensionary benefits which are part of pension are required to be
given and with interest.
19. Rule-3 and 4 of the Interest Act, 1978 alongwith different
judgments of Apex Court as well as this Court persuades the Court
to award interest. Rule 3 and 4 of the Interest Act, 1978 are worth
consideration.
"3. Power of Court to allow Interest.-
(1) In any proceedings for the recovery of any debt
or damages or in a n y proceedings in which a claim for
interest in respect of any debt or damages already paid is
made, the court may, if it thinks fit, allow interest to the
person entitled to the debt or damages or to the person
making such claim, as the case may be, at a rate not
exceeding the current rate of interest, for the whole or part
of the following period, that is to say,-
(a) if the proceedings relate to a debt payable by
virtue of a written instrument at a certain time,
then, from the date when the debt is payable to the
date of institution of the proceedings;
(b) if the proceedings do not relate to any such
debt, then, from the date mentioned in this regard in
a written notice given by the person entitled or the
person making the claim to the person liable that
interest will be claimed, to the date of institution of
the proceedings:
Provided that where the amount of the debt or damages has
been repaid before the institution of the proceedings,
interest shall not be allowed under this section for the
period after such repayment.
(2) Where, in any such proceedings as are
mentioned in sub-section (1),-
(a) judgment, order or award is given for a
sum which, apart from interest on damages,
exceeds four thousand rupees, and
(b) the sum represents or includes damages
in respect of personal injuries to the plaintiff or any
other person or in respect of a person's death, then,
the power conferred by that sub-section shall be
exercised so as to include in that sum interest on
those damages or on such part of them as the court
considers appropriate for the whole or part of the
period from the date mentioned in the notice to the
date of institution of the proceedings, unless the
court is satisfied that there are special reasons why
no interest should be given in respect of those
damages.
(3) Nothing in this section,-
(a) shall apply in relation to-
(i) any debt or damages upon which interest is
payable as of right, by virtue of any agreement; or
(ii) any debt or damages upon which payment of
interest is barred, by virtue of an express
agreement;
(b) shall affect-
(i) the compensation recoverable for the dishonour
of a bill of exchange, promissory note or cheque, as
defined in the Negotiable Instruments Act, 1881 (26
of 1881); or
(ii) the provisions of Rule 2 of Order II of the First
Schedule to the Code of Civil Procedure, 1908 (5 of
1908);
(c) shall empower the court to award interest upon
interest.
4. Interest payable under certain enactments.- (1)
Notwithstanding anything contained in section 3, interest
shall be payable in all cases in which it is payable by
virtue of any enactment or other rule of law or usage
having the force of law.
(2) Notwithstanding as aforesaid, and without
prejudice to the generality of the provisions of sub-
section (1), the court shall, in each of the following
cases, allow interest from the date specified below to
the date of institution of the proceedings at such rate as
the court may consider reasonable, unless the court is
satisfied that there are special reasons why interest
should not be allowed, namely :-
(a) where money or other property has been
deposited as security for the performance of an
obligation imposed by law or contract, from the date of
the deposit;
(b) where the obligation to pay money or restore
any property arises by virtue of a fiduciary
relationship, from the date of the cause of action;
(c) where money or other property is obtained or
retained by fraud, from the date of the cause of action.
(d) where the claim is for dower or maintenance,
from the date of the cause of action."
20. Combined reading of Sections 3 and 4 of the Interest Act
further substantiates the case of petitioner. Instant case is
proceedings under the constitutional/administrative law to claim
damages also (beside other reliefs) from the State as per Section 3
of the Interest Act. It is also a case in which interest is payable by
virtue of usage having the force of law as contained in Section 4 (1)
of the Interest Act. In case of Dr. Uma Agrawal Vs. State of U.P.
and another, 1999 (3) SCC 438, the Hon'ble Apex Court has given
guidance in following words:
"5. We have referred in sufficient detail to the
Rules and instructions which prescribe the time-
schedule for the various steps to be taken in regard to
the payment of pension and other retiral benefits. This
we have done to remind the various governmental
departments of their duties in initiating various steps
at least two years in advance of the date of retirement.
If the Rules/instructions are followed strictly, much of
the litigation can be avoided and retired government
servants will not feel harassed because after all, grant
of pension is not a bounty but a right of the
government servant. The Government is obliged to
follow the Rules mentioned in the earlier part of this
order in letter and in spirit. Delay in settlement of
retiral benefits is frustrating and must be avoided at
all costs. Such delays are occurring even in regard to
family pensions for which too there is a prescribed
procedure. This is indeed unfortunate. In cases where
a retired government servant claims interest for
delayed payment, the court can certainly keep in mind
the time-schedule prescribed in the Rules/instructions
apart from other relevant factors applicable to each
case."
21. In the case of R.P. Kapur (supra), State of Jharkhand
(supra), Laxmi Narayan Chaurasiya (supra) State Of M.P.
(supra), B.D. Dubey (supra), Shivkumari Dubey (supra) and Dr.
Shrikant Kaushik Vs. State of M.P. and Ors.. this aspect has been
dealt with and Courts have rightly came to the conclusion that in
case where delay in disbursement of due amount to the government
servant is caused then it is to be saddled with interest.
22. This Court can profitably refer judgments passed by Hon'ble
Apex Court in the case of O.P. Gupta Vs. Union of India and
others reported in (1987) 4 SCC 328, Union of India Vs. Justice
S.S. Sandhawalia (RETD.) and others reported in (1994) 2 SCC
240 and Lallan Singh and Ors. Vs. State of Uttar Pradesh
reported in (2015) 13 SCC 362.
23. Here due to lackluster and discriminatory attitude of
respondents whereby after conclusion of inquiry, neither competent
authority took decision nor the office of S.P.E. was persuaded to
take appropriate decision. The decision which has been taken on
17.01.2018 (Annexure P-3) could have been taken much before.
Therefore, for the fault of their own, plea of respondents cannot be
accepted regarding stay prevailing in the matter.
24. In the cumulative analysis, petitioner is entitled to get
pension in accordance with law. Part of the pensionary benefits
have already been paid to the petitioner therefore, those
emoluments only which are to be paid to the petitioner as arrears
accumulated till date (of passing of this order) shall carry interest @
6% per annum. Beside that respondents shall start disbursing
pension as per his entitlement/in accordance with law immediately
without any delay and arrears along with interest be paid within 4
months from the date of passing of this order.
25. Petition stands allowed and disposed of in above terms.
(Anand Pathak)
Ashish* Judge
ASHISH
CHAURASIA
Digitally signed by ASHISH CHAURASIA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
postalCode=474001, st=Madhya Pradesh,
2.5.4.20=bf81a9adb1da24e4bc7b5195154c3d4de08c6bb9303e52e2e7e
728d9bac85bd3,
pseudonym=CA2EA6EDDF504F8F9C2790FA9A0FD201D0242B64,
serialNumber=A926F3CBF979ECA6A4C477577EEDBA3AB4F94593A930B
98DAE1B0AD16F90B5FD, cn=ASHISH CHAURASIA
Date: 2023.10.04 19:05:42 -07'00'
