Madhya Pradesh High Court
Ashok Kumar Jain vs The State Of Madhya Pradesh on 6 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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1 W.P. No.24744/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 6th OF JANUARY, 2025
WRIT PETITION No. 24744 of 2021
ASHOK KUMAR JAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Uttam Maheshwari - Advocate for the petitioner.
Shri Aakash Malpani - Panel Lawyer for the respondents/State.
............................................................................................................................................
ORDER
Assailing the orders dated 19/11/2014 and 22/07/2021 passed by
respondent No.2 and respondent No.1 respectively whereby complete
retiral dues of the petitioner have not been paid to him, present petition
has been filed.
2. It is the case of petitioner that the was initially appointed on the
post of Assistant Food Inspector on 11/02/1980 and subsequently, he
was promoted to the post of Food Inspector and Assistant Food Supply
Officer. He finally stood retired from the post of Assistant Director
(Food & Civil Supplies), Bhopal. He had served the institution since
year 1980 to 2014. There were no adverse allegations against the
petitioner except one allegation of corrupt practice. He had served the
institution for more than 34 years, therefore entitled for payment of
gratuity and pension in terms of Rules 59 and 63 of Madhya Pradesh
Civil Services (Pension) Rules, 1976 (in short „Pension Rules, 1976‟).
He filed an application for pension before the respondents along with
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covering letter dated 12/11/2014.
3. It is pointed out that on single allegation regarding corrupt
practices adopted by the petitioner, Crime No.193/2014 was registered
on 13/05/2014 by Lokayukta Sagar for offence under Sections 7,
13(1)(d), 13(2) of Prevention of Corruption Act, 1988. During the
pendency of criminal case, petitioner stood retired. As the criminal case
was pending against the petitioner, the provisional pension of the
petitioner was finalized vide order dated 19/11/2014. Thereafter he was
convicted by the Trial Court vide judgment dated 12/07/2018 passed in
Special Case No.1300007/2014 and owing to the conviction of the
petitioner vide order dated 22/07/2021, provisional pension payable to
the petitioner was stopped on permanent basis under Rule 9(1) of
Madhya Pradesh Civil Services (Pension) Rules, 1976.
4. It is argued that against the judgment of conviction, petitioner has
preferred Criminal Appeal No.5274/2018, wherein vide order dated
06/10/2018, sentence awarded to the petitioner has been suspended. The
Authorities without following the procedure as provided under Pension
Rules, 1976 and without supplying the copy of recommendation of
Madhya Pradesh Public Service Commission has passed the impugned
order directing for stoppage of future amount of pension to be disbursed
to the petitioner. It is pointed out that petitioner was only released 50%
provisional pension and no amount towards gratuity was released to
him. He submitted repeated representations before respondents No.1 &
2 but of no consequence. It is argued that retiral dues including pension
is not a bounty and is a statutory right of the Government employee.
Therefore, action taken by the Authorities is per se illegal. It is
submitted that once the petitioner has attained the age of
superannuation, it is only the Governor of the State who is having power
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to direct for stoppage of pension of the petitioner. The direction for
stoppage of pension can only be issued after providing opportunity of
hearing to the petitioner. Learned counsel for the petitioner has placed
reliance on the order dated 03.08.2021 passed by Division Bench of this
Court at Gwalior in the case of Radha Krishna Sharma Vs. State of
M.P. and Ors. in Writ Appeal No.875/2020 wherein similar issue was
considered by the Court and Writ Appeal was allowed and the impugned
order of withdrawing of pension of petitioner in entirety under Rule 9 of
Pension Rules, 1976 was quashed. The same principle is applicable to
the facts and circumstances of the present case also. Therefore, he
prayed for quashment of impugned orders.
5. On notice being issued, a detailed reply has been filed by the
Authorities. It is pointed out that petitioner stood convicted in a criminal
case registered for offence under Sections 7, 13(1)(d), 13(2) of
Prevention of Corruption Act, 1988 vide judgment of conviction dated
12/07/2018 passed in Special Case No.1300007/2014. He was sentenced
for RI of 4 years and fine of Rs.500/- under Section 7 of Prevention of
Corruption Act and RI of 4 years and fine of Rs.500/- under Section
13(1)(d) read with 13(2) of Prevention of Corruption Act. It is argued
that there is an amendment in Rule 64 of Pension Rules, 1976 vide
amendment dated 19/05/2023 which has been made applicable with
effect from 12/12/1990. If the said amendment is taken note of, then no
amount of gratuity shall be paid to the Government servant until the
conclusion of the departmental and judicial proceedings and issuance of
final orders thereon. Under these circumstances, the Authorities have
rightly passed the impugned orders.
6. Rejoinder to the return has been filed pointing out the fact that
criminal proceedings have been initiated against the petitioner on
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27/11/2014, whereas petitioner stood retired on 31/10/2014 on attaining
the age of superannuation. Petitioner has been deprived of the gratuity
amount in spite of any orders being passed by the Authorities.
Respondents have failed to appreciate the note appended to Rule 64 of
Pension Rules, 1976, wherein it is provided that provisional pension
under Rule 64 would be mandatory in case if judicial proceedings are
continued. It is submitted that since the criminal appeal is pending
consideration and the sentence has been suspended, therefore the
Authorities have no legal right to withhold the provisional pension of
the petitioner as well as gratuity.
7. Heard learned counsel for the petitioner and perused the record.
8. From perusal of record, it is seen that the admitted position being
that the petitioner on attaining the age of superannuation stood retired on
31/10/2014. Thereafter, provisional pension was released vide order
dated 19/11/2014 passed by Commissioner, Food Supply and Consumer
Protection. The order dated 22/07/2021 (Annexure-P/10) reflects that
the criminal case at Crime No.193/2014 for offence under Sections 7,
13(1)(d), 13(2) of Prevention of Corruption Act was registered against
the petitioner on 15/05/2014 and the matter was taken up for
investigation by the Police Authorities. He was convicted vide judgment
dated 12/07/2018 passed in Special Case No.1300007/2014 for offence
under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act
and sentenced for four years RI with fine of Rs.500/- and four years RI
with fine of Rs.500/- respectively with default stipulations. This clearly
goes to establish that criminal case against the petitioner was registered
prior to retirement of the petitioner. During the pendency of criminal
trial, petitioner stood superannuated, therefore order of grant of
provision pension was issued but now the petitioner stood convicted by
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judgment dated 12/07/2018, against which he preferred Cr.A.
No.5274/2018 before this Court which is pending consideration and
vide order dated 06/10/2018, his jail sentence has been suspended.
Thereafter, a decision was taken by the Authorities after taking opinion
from Madhya Pradesh Public Service Commission to stop the
provisional pension of the petitioner and the order impugned has been
passed under the signature of the Governor of the State.
9. Rule 9(1) of Pension Rules, 1976 is relevant and it reads as
under:-
"9. Right of Governor to withhold or withdraw
pension.-(1) The Governor reserves to himself the
right of withholding or withdrawing a pension or part
thereof, whether permanently or for a specified
period, and of ordering recovery from pension of the
whole or part of any pecuniary loss caused to the
Government if, in any departmental or judicial
proceeding, the pensioner is found guilty of grave
misconduct or negligence during the period of his
service, including service rendered upon re-
employment after retirement:
Provided that the State Public Service Commission
shall be consulted before any final orders are passed:
Provided further that where a part of pension is
withheld or withdrawn, the amount of such pension
shall not be reduced below the minimum pension as
determined by the Government from time to time."
10. If the aforesaid rule is perused, then it is seen that the opinion
from the State Public Service Commission is to be taken and thereafter
the sanction from the Governor is required in the matter.
11. In the present case, opinion from the State Public Service
Commission was taken in the matter. Thereafter, an amendment in Rule
64 of Pension Rules, 1976 was carried out which was made effected
from 12/12/1990. The said amendment reads as under:-
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"R.N. 816/3600/2022/RULE/IV In exercise of the
powers conferred by the proviso to article 309 of the
Constitution of India, the Governor of Madhya
Pradesh, hereby makes the following further
amendment in the Madhya Pradesh Civil Services
(Pension) Rules, 1976, namely :-
AMENDMENT
In the said rules, for rule 64, the following rule
shall be substituted namely -
"64. Provisional pension, where departmental or
judicial proceedings may be pending :-
(1)(a) In respect of a Government servant
referred to in sub-rule (4) of rule 9, the Head of
office shall authorize the provisional pension
equal to the maximum pension which would
have been admissible on the basis of qualifying
service upto the date of retirement of the
Government servant, or if he was under
suspension on the date of retirement upto the
date immediately preceding the date on which
he was placed under suspension ;
(b) The provisional pension shall be
drawn on establishment pay bill and paid to the
retired Government servant by the Head of
office during the period commencing from the
date of retirement upto and including the date
on which, after the conclusion of departmental
or judicial proceedings, final orders are passed
by the competent authority;
(c) No gratuity shall be paid to the
Government servant until the conclusion of the
departmental or judicial proceedings and issue
of final orders thereon ;
provided that where departmental
proceedings have been instituted under rule 16
of the Madhya Pradesh Civil Services
(Classification Control and Appeal) Rules,
1966, for imposing any of the penalties
specified in clause (i), (ii) and (iv) of rule 10 of
the said rules, the payment of provisional
gratuity to the extent of 90% of the gratuities
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admissible under the rules shall also be
authorized to be paid to the Government
servant.
(2) Provisional gratuity shall be drawn on
establishment pay bill and paid to the retired
Government servant by the Head of office after
adjusting dues mentioned in sub-rule (2) of
rule 60 under intimation to audit office.
Payment of provisional pension / gratuity made
under sub-rule (1) shall be adjusted against
final retirement benefits sanctioned to such
Government servant upon conclusion of such
proceedings, but recovery shall not be made
where the pension/gratuity finally sanctioned is
less than the provisional pension/gratuity or the
pension/gratuity is reduced or withheld either
permanently or for a specified period.
Note : Grant of provisional pension
under rule 64 is mandatory even if
departmental or judicial proceedings is
continued.".
2. This amendment shall be deemed to have been
come into force form 12th December, 1990.
e/;izns"k ds jkT;iky ds uke ls rFkk vkns"kkuqlkj]
vthr dqekj] lfpo"
12. From perusal of the said amendment, it is evident that no gratuity
shall be paid to the Government servant until the conclusion of the
departmental or judicial proceedings and issue of final order thereon.
13. In the present case, there is a direction issued by the Authorities to
stop the provisional pension of the petitioner and to withhold the
gratuity amount on the ground that petitioner stood convicted in a
criminal case registered under Prevention of Corruption Act.
14. It is argued by learned counsel for the petitioner that prior to
passing such order, no opportunity of hearing was granted to the
petitioner. The fact remains that the provision does not contemplate
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grant of any opportunity of hearing to the delinquent employee who
stood convicted in a criminal case prior to passing any order for
stoppage of pension.
15. It is an admitted position that petitioner has been convicted for a
period of 4 years under the provisions of Prevention of Corruption Act.
Merely suspension of sentence in a Criminal Appeal does not entitle the
petitioner for grant of pension. The conviction still remains and only the
sentence is suspended by this Court in Criminal Appeal.
16. This Court in the case of Sobran Singh Sikarwar Vs. The State
of Madhya Pradesh and others decided on 28/08/2024 in Writ
Petition No.5759/2017 has considered the similar issue and has held as
under:
"6. The undisputed facts in this petition are that the
petitioner has been convicted vide judgement dated
28/3/2012 passed by VII Additional Sessions Judge,
Gwalior in S.T. No. 6/2011 for the offences
punishable under sections 302 read with 34 of the
IPC, 498A of the IPC and 4 of the Dowry Prohibition
Act. In criminal appeal having been preferred, the
custodial sentence has been suspended vide order
dated 5/4/2013. Petitioner's prayer for grant of
pensionary benefits or reinstatement in service as he
has not been placed under suspension nor his services
have been terminated by the Authorities, cannot be
considered for the reason that petitioner is a
convicted employee. He has been found guilty of
committing the offences as detailed above. Similar
issue came for consideration before the Full Bench of
this Court in the case of Lal Saheb Bairagi (Supra),
wherein it has been held as under:-
14. The Rule 8(2) enables the authority to
exercise power under Rule 8(1)(b) upon
conviction of serious crime in the light of
the Judgment of the criminal court. While
doing so, it must consider whether his
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conduct which has led to his conviction
was such as warrants the
withholding/withdrawing of pension. For
that purpose it will have to peruse the
judgment of the criminal court and
consider all the facts and circumstances of
the case. This, however, has to be done by
it ex parte and by itself and without
hearing the concerned pensioner reason of
the exclusionary effect of the starting
words of Rule 8(3) upon exercise of
powers under Rule 8(2) of the 1976 Rules.
15. In view of the law laid down by the
Supreme Court in the case of Tulsiram
(supra), which is fully applicable to the
present case as well, the authority must,
however, bear in mind that a conviction
on a criminal charge does not
automatically entail withdrawal or
withholding of pension. This can be done
in the light of the judgment of the Court
relating to such conviction. No direction
for taking action in the judgment of the
criminal Court is necessary or required for
taking action under Rule 8(2) of the Rules
of 1976. This authoritative judgment of
the Supreme Court was completely
overlooked by the learned Single Bench
while deciding Dau Ram Maheshwar case
(supra) on the basis of decision of
Chhatisgarh High Court. The majority
view in Ram Sewak Mishra (supra)
wrongly did not apply the decision of
Tulsi Ram Patel (supra) to the Rules of
1976. On the other hand the earlier Full
Bench in Laxmi Narayan Hayaran v. State
of M.P. reported in 2004 (4) MPLJ 555
after considering the relevant case law
including Tulsiram Patel (supra), correctly
held that no prior hearing is required
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before passing an order under Rule 8(2) of
1976 Rules consequent upon conviction.
***
17. The answer to the questions referred to
this Larger Bench is given accordingly by
clearly stating that:-
(i) The principles of natural justice are
specifically and expressly excluded and
have no application to the cases falling
under Rule 8(2) of 1976 Rules in view of
the opening words of Rule 8(2) of the
Rules of 1976, therefore, when an action
is taken against the pensioner under Rule
8(2) of the Rules of 1976, no notice is
required to be issued to the pensioner nor
can he insists upon prior opportunity of
representation on the strength of the
principles of Natural Justice.
(ii) The decision of the Full Bench in the
case of Ram Sewak Mishra (supra) and
the decision in the case of Dau Ram
Maheshwar (supra) are hereby over-ruled.
(iii) It is held that the authority is not
required to issue notice or afford prior
opportunity of representation before
passing the order under Rule 8(2) of the
Pension Rules of 1976, in respect of a
pensioner who has been convicted in the
criminal cases. However, the power of the
authority to take action under the Rules
would be subject to the guidelines as
stated by the Supreme Court in the case of
Tulsiram Patel (supra) and reiterated by
this Bench in the preceding paragraphs of
this judgment."
7. Recently, the Hon'ble Supreme Court in Civil
Appeal No. 7437-7438 of 2021 (The Secretary
Local Self Government Department & Others
Etc. Vs. K.Chandran Etc.) has held that after
conviction, the employee is not entitled to claim
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pension or any other retiral dues even though his
criminal appeal against conviction is pending before
the High Court. The Hon'ble Supreme Court in the
case of Ram Ratan Tiwari Vs. State of M.P. and
Others (2002 (5) MPHT 11) has held that criminal
appeal is not continuation of trial, therefore, in terms
of the provisions of Rule 8 of the Pension Rules,
1976, an employee convicted for a serious offence is
not entitled for claiming pensionary benefits."
17. The Hon‟ble Supreme Court in the case of K.C. Sareen Vs. CBI,
Chandigarh reported in (2001) 6 SCC 584 has held as under:-
"10. A three-Judge Bench of this Court has
elaborately considered the scope and ambit of the
powers of the appellate court envisaged in Section
389 of the Code (vide Rama Narang v. Ramesh
Narang [(1995) 2 SCC 513] ). Ahmadi, C.J., who
authored the judgment for the Bench said that what
can be suspended under Section 389(1) of the Code
is the execution of the sentence or execution of the
order and obviously the "order" referred to in the
sub-section must be an order which is capable of
execution. Learned Chief Justice then observed thus:
(SCC p. 524, para 15)
"An order of conviction by itself is not
capable of execution under the Code. It is the
order of sentence or an order awarding
compensation or imposing fine or release on
probation which are capable of execution and
which, if not suspended, would be required to
be executed by the authorities. Since the order
of conviction does not on the mere filing of
an appeal disappear it is difficult to accept the
submission that Section 267 of the Companies
Act must be read to apply only to a „final‟
order of conviction. Such an interpretation
may defeat the very object and purpose for
which it came to be enacted."
Nevertheless, the three-Judge Bench further stated
that in a certain situation the order of conviction can
be executable and in such a case the power under
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Section 389(1) of the Code could be invoked. The
ratio of the judgment can be traced out in the said
paragraph which is extracted below: (SCC pp. 524-
25, para 16)
"16. In certain situations the order of
conviction can be executable, in the sense, it
may incur a disqualification as in the instant
case. In such a case the power under Section
389(1) of the Code could be invoked. In such
situations the attention of the appellate court
must be specifically invited to the
consequences which are likely to fall to
enable it to apply its mind to the issue since
under Section 389(1) it is under an obligation
to support its order „for reasons to be recorded
by it in writing‟. If the attention of the court is
not invited to this specific consequence which
is likely to fall upon conviction how can it be
expected to assign reasons relevant thereto?
No one can be allowed to play hide and seek
with the court; he cannot suppress the precise
purpose for which he seeks suspension of the
conviction and obtain a general order of stay
and then contend that the disqualification has
ceased to operate."
11. The legal position, therefore, is this: though the
power to suspend an order of conviction, apart from
the order of sentence, is not alien to Section 389(1)
of the Code, its exercise should be limited to very
exceptional cases. Merely because the convicted
person files an appeal in challenge of the conviction
the court should not suspend the operation of the
order of conviction. The court has a duty to look at
all aspects including the ramifications of keeping
such conviction in abeyance. It is in the light of the
above legal position that we have to examine the
question as to what should be the position when a
public servant is convicted of an offence under the
PC Act. No doubt when the appellate court admits
the appeal filed in challenge of the conviction and
sentence for the offence under the PC Act, the
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superior court should normally suspend the sentence
of imprisonment until disposal of the appeal, because
refusal thereof would render the very appeal otiose
unless such appeal could be heard soon after the
filing of the appeal. But suspension of conviction of
the offence under the PC Act, dehors the sentence of
imprisonment as a sequel thereto, is a different
matter.
12. Corruption by public servants has now reached a
monstrous dimension in India. Its tentacles have
started grappling even the institutions created for the
protection of the republic. Unless those tentacles are
intercepted and impeded from gripping the normal
and orderly functioning of the public offices, through
strong legislative, executive as well as judicial
exercises the corrupt public servants could even
paralyse the functioning of such institutions and
thereby hinder the democratic polity. Proliferation of
corrupt public servants could garner momentum to
cripple the social order if such men are allowed to
continue to manage and operate public institutions.
When a public servant is found guilty of corruption
after a judicial adjudicatory process conducted by a
court of law, judiciousness demands that he should
be treated as corrupt until he is exonerated by a
superior court. The mere fact that an appellate or
revisional forum has decided to entertain his
challenge and to go into the issues and findings made
against such public servants once again should not
even temporarily absolve him from such findings. If
such a public servant becomes entitled to hold public
office and to continue to do official acts until he is
judicially absolved from such findings by reason of
suspension of the order of conviction, it is public
interest which suffers and sometimes, even
irreparably. When a public servant who is convicted
of corruption is allowed to continue to hold public
office, it would impair the morale of the other
persons manning such office, and consequently that
would erode the already shrunk confidence of the
people in such public institutions besides
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demoralising the other honest public servants who
would either be the colleagues or subordinates of the
convicted person. If honest public servants are
compelled to take orders from proclaimed corrupt
officers on account of the suspension of the
conviction, the fallout would be one of shaking the
system itself. Hence it is necessary that the court
should not aid the public servant who stands
convicted for corruption charges to hold only (sic)
public office until he is exonerated after conducting a
judicial adjudication at the appellate or revisional
level. It is a different matter if a corrupt public
officer could continue to hold such public office even
without the help of a court order suspending the
conviction."
18. There is no dispute with respect to the fact that petitioner stood
convicted vide judgment of conviction dated 12/07/2018 against which
Criminal Appeal is pending. He is held guilty and stands convicted.
There is no stay on his conviction. Only sentence is suspended. Merely
getting a suspension of sentence does not entitle the petitioner for grant
of pension and gratuity. Learned counsel for the petitioner has failed to
point out any law or statutory provision which entitles the petitioner for
grant of pension or gratuity during the pendency of criminal appeal after
his conviction.
19. Under these circumstances, no relief can be extended to the
petitioner.
20. The petition sans merit and is accordingly dismissed. No order as
to costs.
(VISHAL MISHRA)
JUDGE
Shbhnkr
