Madhya Pradesh High Court
Shiv Prasad Banwasi vs The State Of Madhya Pradesh on 25 August, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 25th OF AUGUST, 2025
WRIT PETITION No. 484 of 2018
SHIV PRASAD BANWASI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri D.K. Dixit - Senior Advocate with Shri Anshul Dixit - Advocate
for the petitioner .
Ms. Smriti Sinha - Panel Lawyer for the respondent - State.
ORDER
By way of this Petition, the petitioner has put to challenge the letters
Annexure P-4 & P-6, whereby the petitioner has only been granted some
limited pensionary benefits upon his superannuation on 30.06.2015 and he
has not been paid final accumulation of pension, gratuity as well as leave
encashment.
2. The petitioner was undisputedly prosecuted in a criminal case
arising from Crime No.89 of 1993 by Lokayukt Police. The petitioner was
acquitted in the said case vide judgment dated 02.07.2001 in Special
Sessions Trial No.02 of 1994, which was under Sections 7 & 13 of the
Prevention of Corruption Act, 1988.
3. The petitioner has been deprived with final settlement, gratuity and
leave encashment only on the ground that since the Lokayukt Police has filed
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CRA No.1866 of 2002 against the judgment of the acquittal dated
02.07.2001, therefore, since judicial proceedings are pending against the
petitioner, hence, he cannot be settled the final accumulation of pension,
gratuity and leave encashment in terms of Rule 64 of M.P. Civil Services
Pension Rules, 1976. Though, in the letter Annexure P-6, the crime number
mentioned is 83 of 2013, but during course of hearing, it was fairly admitted
by counsel for both the parties that the Crime No.83 of 2013 seems to be by
typographical mistake, because the only case which was registered against
the petitioner was Crime No.09 of 1993, in which he has been acquitted vide
judgment dated 02.07.2001.
4. Now, the sole question that remains for consideration is whether
pendency of criminal appeal after acquittal can be said to be pendency of
judicial proceedings against the employee once he has been honourably
acquitted by the trial Court. The ancillary question that would arise for
consideration is whether appeal against acquittal is continuation of trial.
5. The issue is whether the respondents No. 1 and 2 are justified in
withholding the payment of gratuity and final settlement of pension only on
account of pendency of appeal against the judgment of acquittal.
6. A coordinate Bench of this Court in W.P. No. 13798/2013 has held
as under:-
"9. Furthermore, the Division Bench of this Court in the case
reported in 2002 (4) MPLJ 401 [Ram Ratan Tiwari Vs. State of
M.P. and others] has held that suspension of Government Servant
during pendency of investigation, inquiry or trial of criminal
offence against him cannot be continued during appeal after
acquittal of Government Servant. The Division Bench in the
aforesaid case has also observed that keeping an employee under
suspension may cause immense hardship t o him merely on the 3
ground that an appeal preferred against the order of acquittal of
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that employee is pending for final adjudication. Further, the
Division Bench of this Court in a case reported in ILR [2008] MP
2213 [M.P. State Civil Supplied Corporation Ltd. Vs. Vinod
Kumar Save] has solicited the same principle as has been laid
down in the case of Ram Ratan Tiwari (supra) and approved the
direction of writ Court whereby the employer was directed to pay
all retiral dues to the employee after his acquittal from the
criminal case tried against him that too during pendecy of appeal
preferred against his acquittal by the employer.
10. Likewise, the Supreme Court in a case reported in (2013) 12
SCC 210 [State of Jharkhand & Ors. Vs. Jitendra Kumar
Shrivastava & Anr.] has very specifically observed that in absence
of any provision in the Pension Rules, the State Government
cannot withhold a part of pension and/or gratuity even during
pendency of departmental/criminal proceedings. However, in the
said case, the Supreme Court has dealt with the provisions of
Bihar Pension Rules, but the analogy as has been applied by the
Supreme Court in the aforesaid case has direct impact in the
present case. In the aforesaid case, the Supreme Court has also
discussed the rights of an employee to receive pension and also
observed that pension includes gratuity. The observations made by
the Supreme Court in the case of Jitendra Kumar Shrivastava
(supra) are as under:-
"7. The aforesaid arguments of the learned Senior Counsel based
on the judgment in Sant Ram Sharma v. State of Rajasthan, AIR
1967 SC 1910 would not cut any ice insofar as present case is
concerned, because of the reason that case has no applicability in
the given case. Sant Ram judgment governs the field of
administrative law wherein the Constitution Bench laid down the
principle that the rules framed by the authority in exercise of
powers contained in an enactment, would also have statutory
force. Though the administration can issue administrative
instructions for the smooth administrative function, such
administrative instructions cannot supplant the rules. However,
these administrative instructions can supplement the statutory rules
by taking care of those situations where the statutory rules are
silent. This ratio of that judgment is narrated in the following
manner: (AIR p. 1914, para 7)
"7. ... It is true that there is no specific provision in the Rules
laying down the principle of promotion of junior or senior grade
officers to selection grade posts. But that does not mean that till
statutory rules are framed in this behalf the Government cannot
issue administrative instructions regarding the principle to be
followed in promotions of the officers concerned to selection
grade posts. It is true that the 4 Government cannot amend or
supersede statutory rules by administrative instructions, but if the
rules are silent on any particular point the Government can fill up
the gaps and supplement the rules and issue instructions and
inconsistent with the rules already framed."
There cannot be any quarrel on this exposition of law which is
well grounded in a series of judgments pronounced post Sant Ram
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Sharma case as well. However, the question which is posed in the
present case is altogether different.
8. It is an accepted position that gratuity and pension are not
bounties. An employee earns these benefits by dint of his long,
continuous, faithful and unblemished service. Conceptually it is so
lucidly described in D.S. Nakara v. Union of India [(1983) 1 SCC
305] by D.A. Desai, J. who spoke for the Bench, in his inimitable
style, in the following words: (SCC pp. 319-20, paras 18-20)
"18. The approach of the respondents raises a vital and none too
easy of answer, question as to why pension is paid. And why was
it required to be liberalised? Is the employer, which expression
will include even the State, bound to pay pension? Is there any
obligation on the employer to provide for the erstwhile employee
even after the contract of employment has come to an end and the
employee has ceased to render service?
19. What is a pension? What are the goals of pension? What
public interest or purpose, if any, it seeks to serve? If it does seek
to serve some public purpose, is it thwarted by such artificial
division of retirement pre and post a certain date? We need seek
answer to these and incidental questions so as to render just justice
between parties to this petition.
20. The antiquated notion of pension being a bounty a gratuitous
payment depending upon the sweet will or grace of the employer
not claimable as a right and, therefore, no right to pension can be
enforced through court has been swept under the carpet by the
decision of the Constitution Bench in Deokinandan Prasad v. State
of Bihar [(1971) 2 SCC 330] wherein this Court authoritatively
ruled that pension is a right and the payment of it does not depend
upon the discretion of the Government but is governed by the
rules and a government servant coming within those rules is
entitled to claim pension. It was further held that the grant of
pension does not depend upon anyone's discretion. It is only for
the purpose of quantifying the amount having regard to service
and other allied matters that it may be necessary for the authority
to pass an order to that effect but the right to receive pension
flows to the officer not because of any such order but by virtue of
the rules. This view was reaffirmed in State of Punjab v. Iqbal
Singh [(1976) 2 SCC 1] .
It is thus a hard earned benefit which accrues to an employee and
is in the nature of "property". This right to property cannot be
taken away without the due process of law as per the provisions of
Article 300-A of the Constitution of India.
9. Having explained the legal position, let us first discuss the rules
relating to release of pension.
10. The present case is admittedly governed by the Bihar Pension
Rules, as applicable to the State of Jharkhand. Rule 43(b) of the
said Pension Rules confers power on the State Government to
withhold or withdraw a pension or part thereof under certain
circumstances. This Rule 43(b) reads as under:
"43. (b) The State Government further reserve to themselves the
right of withholding or withdrawing a pension or any part of it,
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whether permanently or for specified period, and the right of
ordering the recovery from a pension of the whole or part of any
pecuniary loss caused to the Government if the pensioner is found
in departmental or judicial proceeding to have been guilty of
grave misconduct; or to have caused pecuniary loss to the
Government by misconduct or negligence, during his service
including service rendered on re-employment after retirement:"
11. From the reading of the aforesaid Rule 43(b), following
position emerges:
(i) The State Government has the power to withhold or withdraw
pension or any part of it when the pensioner is found to be guilty
of grave misconduct either in a departmental proceeding or
judicial proceeding.
(ii) This provision does not empower the State to invoke the said
power while the departmental proceeding or judicial proceeding
are pending.
(iii) The power of withholding leave encashment is not provided
under this Rule to the State irrespective of the result of the above
proceedings.
(iv) This power can be invoked only when the proceedings are
concluded finding guilty and not before.
12. There is also a proviso to Rule 43(b), which provides that:
"(a) such departmental proceedings, if not instituted while the
government servant was on duty either before retirement or during
reemployment;
(i) shall not be instituted save with the sanction of the State
Government;
(ii) shall be in respect of an event which took place not more than
four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or
places as the State Government may direct and in accordance with
the procedure applicable to proceedings on which an order of
dismissal from service may be made--
(b) judicial proceedings, if not instituted while the government
servant was on duty either before retirement or during re-
employment, shall have been instituted in accordance with sub-
clause (ii) of clause (a); and
(c) the Bihar Public Service Commission, shall be consulted
before final orders are passed.
It is apparent that the proviso speaks about the institution of
proceedings. For initiating proceedings, Rule 43(b) puts some
conditions i.e. departmental proceeding as indicated in Rule 43(b),
if not instituted while the government servant was on duty, then it
shall not be instituted except:
(a) With the sanction of the Government,
(b) It shall be in respect of an event which took place not more
than four years before the institution of the proceedings.
(c) Such proceedings shall be conducted by the enquiry officer in
accordance with the proceedings by which dismissal of the
services can be made.
Thus, insofar as the proviso is concerned that deals with condition
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for initiation of proceedings and the period of limitation within
which such proceedings can be initiated.
13. A reading of Rule 43(b) makes it abundantly clear that even
after the conclusion of the departmental inquiry, it is permissible
for the Government to withhold pension, etc. only when a finding
is recorded either in departmental inquiry or judicial proceedings
that the employee had committed grave misconduct in the
discharge of his duty while in his office. There is no provision in
the Rules for withholding of the pension/gratuity when such
departmental proceedings or judicial proceedings are still pending.
14. The right to receive pension was recognised as a right to
property by the Constitution Bench judgment of this Court in
Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330], as is
apparent from the following discussion: (SCC pp. 342-43, paras
27-33)
"27. The last question to be considered, is, whether the right to
receive pension by a government servant is property, so as to
attract Articles 19(1)(f) and 31(1) of the Constitution. This
question falls to be decided in order to consider whether the writ
petition is maintainable under Article 32. To this aspect, we have
already adverted to earlier and we now proceed to consider the
same.
28. According to the petitioner the right to receive pension is
property and the respondents by an executive order dated 12-6-
1968 have wrongfully withheld his pension. That order affects his
fundamental rights under Articles 19(1)(f) and 31(1) of the
Constitution. The respondents, as we have already indicated, do
not dispute the right of the petitioner to get pension, but for the
order passed on 5-8-1996. There is only a bald averment in the
counter-affidavit that no question of any fundamental right arises
for consideration. Mr Jha, learned counsel for the respondents,
was not prepared to take up the position that the right to receive
pension cannot be considered to be property under any
circumstances. According to him, in this case, no order has been
passed by the State granting pension. We understood the learned
counsel to urge that if the State had passed an order granting
pension and later on resiles from that order, the latter order may be
considered to affect the petitioner's right regarding property so as
to attract Articles 19(1)(f) and 31(1) of the Constitution.
29. We are not inclined to accept the contention of the learned
counsel for the respondents. By a reference to the material
provisions in the Pension Rules, we have already indicated that the
grant of pension does not depend upon an order being passed by
the authorities to that effect. It may be that for the purposes of
qualifying the amount having regard to the period of service and
other allied matters, it may be necessary for the authorities to pass
an order to that effect, but the right to receive pension flows to an
officer not because of the said order but by virtue of the rules. The
rules, we have already pointed out, clearly recognise the right of
persons like the petitioners to receive pension under the
circumstances mentioned therein.
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30. The question whether the pension granted to a public servant is
property attracting Article 31(1) came up for consideration before
the Punjab High Court in Bhagwant Singh v. Union of India [AIR
1962 Punj 5 0 3 ] It was held that such a right constitutes
'property' and any interference will be a breach of Article 31(1) of
the Constitution. It was further held that the State cannot by an
executive order curtail or abolish altogether the right of the public
servant to receive pension. This decision was given by a learned
Single Judge. This decision was taken up in letters patent appeal
by the Union of India. The Letters Patent Bench in its decision in
Union of India v. Bhagwant Singh [ILR (1965) 2 Punj 1] approved
the decision of the learned Single Judge. The Letters Patent Bench
held that the pension granted to a public servant on his retirement
is 'property' within the meaning of Article 31(1) of the
Constitution and he could be deprived of the same only by an
authority of law and that pension does not cease to be property on
the mere denial or cancellation of it. It was further held that the
character of pension as 'property' cannot possibly undergo such
mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab
and Haryana High Court in K.R. Erry v. State of Punjab [AIR
1967 Punj 279]. The High Court had to consider the nature of the
right of an officer to get pension. The majority quoted with
approval the principles laid down in the two earlier decisions of
the same High Court, referred to above, and held that the pension
is not to be treated as a bounty payable on the sweet will and
pleasure of the Government and that the right to superannuation
pension including its amount is a valuable right vesting in a
government servant. It was further held by the majority that even
though an opportunity had already been afforded to the officer on
an earlier occasion for showing cause against the imposition of
penalty for lapse or misconduct on his part and he has been found
guilty, nevertheless, when a cut is sought to be imposed in the
quantum of pension payable to an officer on the basis of
misconduct already proved against him, a further opportunity to
show cause in that regard must be given to the officer. This view
regarding the giving of further opportunity was expressed by the
learned Judges on the basis of the relevant Punjab Civil Service
Rules. But the learned Chief Justice in his dissenting judgment
was not prepared to agree with the majority that under such
circumstances a further opportunity should be given to an officer
when a reduction in the amount of pension payable is made by the
State. It is not necessary for us in the case on hand, to consider the
question whether before taking action by way of reducing or
denying the pension on the basis of disciplinary action already
taken, a further notice to show cause should be given to an officer.
That question does not arise for consideration before us. Nor are
we concerned with the further question regarding the procedure, if
any, to be adopted by the authorities before reducing or
withholding the pension for the first time after the retirement of an
officer. Hence we express no opinion regarding the views
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expressed by the majority and the minority Judges in the above
Punjab High Court decision on this aspect. But we agree with the
view of the majority when it has approved its earlier decision that
pension is not a bounty payable on the sweet will and pleasure of
the Government and that, on the other hand, the right to pension is
a valuable right vesting in a government servant.
32. This Court in State of M.P. v. Ranojirao Shinde [AIR 1968 SC
1053] had to consider the question whether a 'cash grant' is
'property' within the meaning of that expression in Articles 19(1)
(f) and 31(1) of the Constitution. This Court held that it was
property, observing 'it is obvious that a right to sum of money is
property'.
33. Having due regard to the above decisions, we are of the
opinion that the right of the petitioner to receive pension is
property under Article 31(1) and by a mere executive order the
State had no power to withhold the same. Similarly, the said claim
is also property under Article 19(1)(f) and it is not saved by clause
(5) of Article 19. Therefore, it follows that the order dated 12-6-
1968, denying the petitioner right to receive pension affects the
fundamental right of the petitioner under Articles 19(1)(f) and
31(1) of the Constitution, and as such the writ petition under
Article 32 is maintainable. It may be that under the Pension Act
(23 of 1871) there is a bar against a civil court entertaining any
suit relating to the matters mentioned therein. That does not stand
in the way of writ of mandamus being issued to the State to
properly consider the claim of the petitioner for payment of
pension according to law."
15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC 651]
this Court recognised that even when, after the repeal of Article
19(1)(f) and Article 31(1) of the Constitution vide Constitution
(Forty-fourth Amendment) Act, 1978 w.e.f. 20-6-1979, the right
to property no longer remained a fundamental right, it was still a
constitutional right, as provided in Article 300-A of the
Constitution. Right to receive pension was treated as right to
property. Otherwise, challenge in that case was to the vires of
Rule 10(1) of the West Bengal Services (Death-cumRetirement
Benefit) Rules, 1971 which conferred the right upon the Governor
to withhold or withdraw a pension or any part thereof under
certain circumstances and the said challenge was repelled by this
Court."
As per the aforesaid enunciation of law, it is clear that in absence
of any specific provision empowering the employer to withhold
the pension of an employee, the same cannot be withheld.
11. That apart, the Allahabad High Court in WRIT-A No.-
66930/2013 [Rajeev Sharma Vs. State of U.P. & 3 Ors.] had an
occasion to deal with the issue as involved in the present case and
while elaborately discussing and considering the various
judgments of the Supreme Court as also of the High Courts, it has
been held by the Allahabad High Court that after acquittal, there is
nothing against the employee and moreso, the respondents can
initiate disciplinary proceeding even after acquittal of that
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employee, but if that is not done, then it is not open for the
respondents to withhold the retiral dues merely on the ground that
the criminal appeal is sub judice before the superior Court. The
Allahabad High Court in the aforesaid case has observed as
under:-
"Supreme Court in State of Jharkhand and others vs. Jitendra
Kumar Srivastava and another [2014 (1) AWC 159 (SC)]
considered as to whether in absence of any provisions in the
pension rules, State Government can withhold a part of pension or
gratuity during the pendency of the departmental or disciplinary
proceedings. Paragraph 11 is as follows:-
"11. Reading of Rule 43(b) makes it abundantly clear that even
after the conclusion of the departmental inquiry, it is permissible
for the Government to withhold pension etc. ONLY when a
finding is recorded either in departmental inquiry or judicial
proceedings that the employee had committed grave misconduct in
the discharge of his duty while in his office. There is no provision
in the rules for withholding of the pension/gratuity when such
departmental proceedings or judicial proceedings are still
pending."
Division Bench of this Court in State of U.P. and others vs. Jai
Prakash [(2014) 1 ADJ 207] relying upon Supreme Court
judgment held that pension would include gratuity and the gratuity
cannot be withheld merely due to pendency of criminal case
unless there is a specific provision under the Rules. The Court was
dealing with the provisions of Civil Service Regulations, 1920,
which provided for withholding of gratuity Paragraphs 8, 9 and 10
are as follows:-
"8. The learned Single Judge, in the present case, has proceeded
on the basis that neither in regulation 351 nor in regulation 351-A
is a withholding of gratuity contemplated during the pendency of a
judicial proceeding. The learned Single Judge, with respect, has
overlooked the provisions of regulation 351-AA and a specific bar
which is contained in regulation 919-A(3). In view of the specific
prohibition which is contained in regulation 919-A(3), no death-
cum-retirement gratuity would be admissible until the conclusion
of a departmental or judicial proceeding. The expression 'judicial
proceeding' would necessarily include the pendency of a criminal
case.
9.In a judgement of a Division Bench of this Court in Shri Pal
Vaish vs. U.P. Power Corporation Limited and another, 2009 (9)
ADJ 45 (DB) , it has been held that clause 3 of regulation 919-A is
a provision which specifically deals with the payment of gratuity
during pendency of departmental or judicial proceedings and in
view thereof, the payment of gratuity has to be deferred until the
conclusion of such a proceeding. The Division Bench also held
that the payment of gratuity cannot be made in view of the bar
contained in regulation 919-A during the pendency of a criminal
case.
10.In a recent judgement of the Supreme Court in State of
Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr 2, the
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Supreme Court dealt with the provisions of Rule 43(b) of the
Pension Rules of the State of Bihar as applicable to the State of
Jharkhand. Regulation 43(b) was pari materia to regulation 351-
Aof the Civil Service Regulations in the State of U.P. In that
context, the Supreme Court held that Rule 43(b) made it clear that
it was permissible for the Government to withhold pension only
when a finding is recorded in a departmental inquiry or judicial
proceeding in regard to the commission of misconduct while in
service and rule 43(b) contains no provision for withholding
gratuity when departmental or judicial proceedings are still
pending. However, the Supreme Court clarified that though there
was no provision for withholding pension or gratuity in the given
situation, had there been any such provision in the rules, the
position would have been different. In the present case, there is a
specific provision contained in regulation 351- AA read with
regulation 919-A(3)."
A Division Bench of this Court in writ petition no.19693 of 2012
(Amrit Lal versus Chief Election Officer and Others) decided on
1.8.2014 observed as follows:
Firstly the pendency of the Criminal Appeal filed by the State
cannot be said to be a valid ground for non payment of gratuity
amount and in any case after dismissal of the appeal on 17.5.2012,
there can be further no justification for not paying the gratuity
amount.
The Supreme Court in Dev Prakash Tewari vs. U.P. Cooperative
Institutional Service Board [LAWS (SC)-2014-6-14] was
considering the case as to whether disciplinary proceedings after
retirement of an employee could be continued in absence of any
rule to that effect. In paragraph 6 held as follows:-"
6. ..................
......................
Once the appellant had retired from service on 31.3.2009, there
was no authority vested with the respondents for continuing the
disciplinary proceeding even for the purpose of imposing any
reduction in the retiral benefits payable to the appellant. In the
absence of such an authority it must be held that the enquiry had
lapsed and the appellant was entitled to get full retiral benefits."
In Corporation of the City of Nagpur versus Ramchandra (1981) 2
SCC 714, it is observed that it may not be expedient to continue a
departmental enquiry on the very same charges or grounds or
evidence, where the accused has been acquitted honourably and
completely exonerated of the charges. At the same time, it is
pointed out that merely because the accused is acquitted, the
power of the authority concerned to continue the departmental
enquiry is not taken away nor is its discretion in any way fettered.
The same principle is reiterated in Commr. of Police versus
Narender Singh (2006) 4 SCC 265.
In Commr. of Police, New Delhi and another versus Mehar Singh
(2013) 7 SCC 685, Supreme Court observed that "while the
standard of proof in a criminal case is that of proof beyond all
reasonable doubt, the proof in a departmental proceeding is
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preponderance of probabilities. Quite often criminal cases end in
acquittal because witnesses turn hostile. Such acquittals are not
acquittals on merit. An acquittal based on benefit of doubt would
not stand on par with a clean acquittal on merit after a full-fledged
trial, where there is no indication of the witnesses being won over.
In R.P. Kapur versus Union of India AIR 1964 SC 787 this Court
has taken a view that departmental proceedings can proceed even
though a person is acquitted when the acquittal is other than
honourable.
"This Court observed that the expressions "honourable acquittal",
"acquitted of blame" and "fully exonerated" are unknown to the
Criminal Procedure Code or the Penal Code. They are coined by
judicial pronouncements. It is dif icult to define what is meant by
the expression "honourably acquitted". This Court expressed that
when the accused is acquitted after full consideration of the
prosecution case and the prosecution miserably fails to prove the
charges levelled against the accused, it can possibly be said that
the accused was honourably acquitted."
Enquiry commences with the issue of charge-sheet as held in the
case of Union of India vs. K.V. Jankiraman (AIR 1991 SC 2010),
Union of India vs. Anil Kumar Sarkar, 2013 (4) SCC 161 and
State of Andhra Pradesh vs. C.H. Gandhi, 2013 (5) SCC 111 ;
Framing of the chargesheet is the first step taken for holding
enquiry into the allegations on the decision taken to initiate
disciplinary proceedings. Service of chargesheet on the
Government servant follows decision to initiate disciplinary
proceedings and it does not precede and coincide with that
decision (vide Delhi Development Authority vs. H.C. Khurana
1993 (3) SCC 196). Once the enquiry was not initiated or
contemplated or pending before the retirement, the same cannot be
continued after retirement, unless there is a rule to that effect. The
learned counsel for the respondents has failed to show any rule or
circular as to whether disciplinary proceedings could be initiated
after retirement and under what circumstances, the retiral dues be
withheld after acquittal.
The Supreme Court in Mathura Prasad v. Union of India and
others, (2007) 1 SCC (L&S) 292), held that when an employee is
sought to be deprived of his livelihood for alleged misconduct, the
procedure laid down under the rules are required to be strictly
complied with:
"When an employee, by reason of an alleged act of misconduct, is
sought to be deprived of his livelihood, the procedure laid down
under the sub-rules are required to be strictly followed: It is now
well settled that a judicial review would lie even if there is an error
of law apparent on the face of the record. If statutory authority
uses its power in the manner not provided for in the statute or
passes an order without application of mind, judicial review would
be maintainable. Even an error of fact, for suf icient reasons may
attract the principles of judicial review."
In a recent judgement rendered by Hon'ble Supreme Court in D.D
Tewari (D) Thr.Lrs. versus Uttar Haryana Bijli Vitran Nigam Ltd.
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& Others in Civil Appeal No.7113 of 2014 decided on 1 st August
2014. The Supreme Court made the following observation in
paragraph 4 & 6:
4. It is an undisputed fact that the appellant retired from service on
attaining the age of superannuation on 31.10.2006 and the order of
the learned single Judge after adverting to the relevant facts and
the legal position has given a direction to the employer-respondent
to pay the erroneously withheld pensionary benefits and the
gratuity amount to the legal representatives of the deceased
employee without awarding interest for which the appellant is
legally entitled, therefore, this Court has to exercise its appellate
jurisdiction as there is a miscarriage of justice in denying the
interest to be paid or payable by the employer from the date of the
entitlement of the deceased employee till the date of payment as
per the aforesaid legal principle laid down by this Court in the
judgement referred to supra. We have to award interest at the rate
of 9% per annum both on the amount of pension due and the
gratuity amount which are to be paid by the respondent.
6.For the reasons stated above, we award interest at the rate of 9%
on the delayed payment of pension and gratuity amount from the
date of entitlement till the date of the actual payment. If this
amount is not paid within six weeks from the date of receipt of a
copy of this order, the same shall carry interest at the rate of 18%
per annum from the date of amount falls due to the deceased
employee. With the above directions, this appeal is allowed.
Applying the law on the facts of the case in hand, petitioner was
falsely implicated in a criminal case for taking bribe of Rs.500 on
22.7.1991, was enlarged on bail on the same day, thereafter placed
under suspension on 27.8.1991 and on 16.11.1992, the petitioner
was reinstated in service but no departmental proceedings was
ever initiated against the petitioner. The petitioner was acquitted in
the criminal case on 14.3.2005, even after acquittal no
departmental proceedings was initiated. On 30.4.2009, the
petitioner retired. Thus mere pendency of Criminal Appeal would
not entitle the respondents to withhold the post retiral benefits as
the petitioner was acquitted and no proceedings was initiated by
the respondents, further petitioner through out the trial continued
in service until retirement.
Civil Service Regulation is applicable upon the employees of the
power corporation, regulation 351 AA and regulation 919 A(3),
prohibits payment of death-cum-retirement gratuity until the
conclusion of departmental or judicial proceeding. Division Bench
in Jai Prakash (Supra) has held "judicial proceedings" would
necessarily include pendency of criminal case. The question to be
answered is as to whether pendency of criminal appeal, against
acquittal, will include "pending judicial proceeding" In Amrit Lal
(Supra), Division Bench observed pendency of criminal appeal
against acquittal is not a ground for withholding the retiral dues.
After acquittal there is nothing against the employee, more so, in
the facts of the case, the respondents did not choose to initiate any
disciplinary proceedings after acquittal nor did they examine the
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judgement of the trial court to find out, as to whether petitioner
was acquitted 'honourably', once failing to exercise their powers
under the rule to initiate any proceedings, it is not open for the
respondents to withhold retiral dues, merely on pendency of
criminal appeal.
The impugned order dated 22.11.2012 passed by Chief Engineer
(Jal Vidyut), respondent no. 3 and order dated 6.6.2013 passed by
Executive Engineer, Electricity Distribution Division, Pilibheet,
respondent no. 4 is quashed.
The respondents are directed to release arrears of salary for the
suspension period, retiral dues and terminal benefits of the
petitioner within three months from the date of service of this
order before the competent authority. Interest @ 9% is awarded on
delayed payment of pension and gratuity from the date of
entitlement to the date of actual payment, failing which same shall
carry interest @ 18% per annum from the date the amount falls
due."
12. Looking to the consistent view of the Supreme Court; the
Division Bench of this Court and also of the Allahabad High
Court, it is clear like a noon day that the retiral dues of an
employee cannot be withheld merely because an appeal preferred
by the employer against acquittal order of the employee is pending
adjudication. Moreso, since despite having option to initiate
disciplinary proceeding against the petitioner, the respondents did
not do so, therefore, they cannot take shelter of pendency of appeal
for not finalizing the petitioner's retiral dues and as such, the
action on the part of the respondents/Authority is unfounded and
virtually arbitrary, illegal and contrary to law."
7. It is settled in law that once a person is acquitted after trial mere
pendency of the appeal against acquittal is not continuation of trial. The only
enabling provision is Rule 64 of M.P. Civil Services (Classification, Control
and Appeal) Rules, 1966 which provides that gratuity can be withheld where
departmental or judicial proceeding may be pending. A division Bench of
this Court on had the occasion to consider the effect of pendency of the
appeal against the judgment of acquittal in the matter of suspension. In the
case of Ram Ratan Tiwari Vs. State of M.P. & others 2002 (4)MPLJ 401 , the
Division Bench of this Court has held the it may cause immense hardship to
person to wait for the final adjudication of the matter by the Final Court. It
has been held that once a person is placed under suspension during the
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14 WP-484-2018
pendency of trial, he should not be continued under suspension during the
appeal as well. The said judgment was followed by another Division Bench
of this Court in the case of M.P. State Civil Supplies Corporation Vs. Vinod
Kumar Save reported in 2008 ILR (MP) 2213.
8. It is settled in criminal law that appeal against the acquittal is not
continuation of trial. The right to withhold or withdraw pension flows from
Rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules,
1966. Rule 9 provides as under:-
9. (1) The appointing authority or any authority to which it is
subordinate or the disciplinary authority or any other authority
empowered in that behalf by the Governor by general or special
order, may place a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or
is pending, or
(b) where a case against him in respect of any criminal offence is
under investigation, inquiry of trial :
[Provided that a Government servant shall invariably be placed
under suspension when a challan for a criminal offence involving
corruption or other moral turpitude is filed against him :]
Provided further that where the order of suspension is made by an
authority lower than the appointing authority, such authority shall
forthwith report to the appointing authority the circumstances in
which the order was made.
(2) A Government servant shall be deemed to have been placed
under suspension by an order of appointing authority-
(a) with effect from the date of his detention, if he is detained in
custody whether on a criminal charge or otherwise for a period
exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of
conviction for an offence, he is sentenced to a term of
imprisonment exceeding forty-eight hours and is not forthwith
dismissed or removed or compulsorily retired consequent to such
conviction.
Explanation. - The period of forty-eight hours referred to in clause
(b) of this sub-rule shall be computed from the commencement of
the imprisonment after the conviction and for this purpose,
intermittent periods of imprisonment,, if any, shall be taken into
account.
[(2-a) Where a Government servant is placed under suspension
under clause (a) of sub-rule (1), the order of suspension shall
contain the reasons for making such order and where it is proposed
to hold an enquiry against such Government servant under Rule
14, a copy of the articles of charges, the statement of imputations
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of misconduct or misbehaviour and a list of documents and
witnesses by which each article of charge is proposed to be
sustained shall be issued or caused to be issued by the disciplinary
authority to such Government servant as required by sub-rule (4)
of Rule 14, within a period of 45 days from the date of order of
suspension :
Provided that where the disciplinary authority is the [State
Government or the High Court], the copy of charges and other
documents mentioned above shall be issued or caused to be issued
to such Government servant within a period of 90 days from the
date of order of suspension.]
(2-b) Where the disciplinary authority fails to issue to the
Government servant, a copy of the charges and other documents
referred to in subrule (2-a) within the period of 45 days, the
disciplinary authority shall, before expiry of the said period, obtain
orders in writing of the State Government for extension of the said
period of suspension :
Provided that the period of suspension shall in no case be
enhanced beyond a period of 90 days from the date of the order of
suspension
(3) Where a penalty of dismissal, removal or compulsory
retirement from service imposed upon a Government servant
under suspension, is set aside in appeal or on review under these
rules and the case is remitted for further inquiry or action or with
any other directions, the order of his suspension shall be deemed
to have continued in force on and from the date of the original
order of dismissal, removal or compulsory retirement and shall
remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory
retirement from service imposed upon a Government servant, is
set aside or declared or rendered void in consequence of or by a
decision of a Court of law and the disciplinary authority, on a
consideration of the circumstances of the case, decides to hold a
further inquiry against him on the allegations on which the penalty
of dismissal, removal or compulsory retirement was originally
imposed, the Government servant shall be deemed to have been
placed under suspension by the appointing authority from the date
of the original order of dismissal, removal or compulsory
retirement and shall continue to remain under suspension until
further orders.
(5)(a) An order of suspension made or deemed to have been made
under this rule, shall continue to remain in force until it is
modified or revoked by the authority competent to do so :
[Provided that the order of suspension shall stand revoked on
expiry of the period of forty-five days from tire date of order of
suspension in case a copy of charges and other documents referred
to in sub-rule (2- a) are not issued to such Government servant by
the disciplinary authority (if it is not the State Government)
without obtaining the orders of the State Government for
extension of the period for issue of the said documents, as
required under sub-rule (2-b) :
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Provided further that the order of suspension shall stand revoked
on expiry of the period of 90 days from the date of order of
suspension, in case the copy of charges and other documents
referred to in subrule (2-a) are not issued to such Government
servant.]
[(b) In respect of a Government servant, whose orders of
suspension stand revoked in accordance with the first or second
proviso of clause (a) the authority competent may, if it considers
expedient so to do, place him under suspension after a copy of
charges and other documents, as required by sub-rule (4) of Rule
14, have been issued to him.]
[(c) Where a Government servant is suspended or is deemed to
have been suspended (whether in connection with any disciplinary
proceeding or otherwise) and any other disciplinary proceeding is
commenced against him during the continuance of that
suspension, the authority competent to place him under suspension
may, for reasons to be recorded by him in writing, direct that the
Government servant shall continue to be under suspension until
the termination of all or any of such proceedings.
[(d)] An order of suspension made or deemed to have been made
under this Rule may at any time be modified or revoked by the
authority which made or is deemed to have made the order or by
any authority to which that authority is subordinate :]
[Provided that an order of suspension made under the first proviso
to sub-rule (1) of Rule 9 shall not be revoked except by an order
of the Government made for reasons to be recorded.
9. In the present case, since criminal appeal against acquittal is not
continuation of trial, there is no justification for withholding final settlement
of pension, gratuity and leave encashment to the petitioner. The petitioner
having been acquitted in criminal trial, there is no justification for
withholding such final settlement, because mere pendency of appeal cannot
be treated to be a circumstance in terms of Rule 64 of Pension Rules.
10. Consequently, the petition is allowed. The respondents are directed
to settle the final pension, gratuity and leave encashment payable to the
petitioner within a period of 90 days from the date of production of certified
copy of this order and arrears be paid to the petitioner within the said period
without fail. The petitioner shall also be entitled to interest @ 6% per annum
on the said amounts from the date of superannuation till actual payment.
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11. Petition stands allowed and disposed of.
(VIVEK JAIN)
JUDGE
rj
