Madhya Pradesh High Court
Virendra Singh vs The State Of Madhya Pradesh on 10 September, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
1 WP-20161-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 10th OF SEPTEMBER, 2025
WRIT PETITION No. 20161 of 2015
VIRENDRA SINGH
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
Appearance:
Shri Devraj Vishwakarma - Advocate for the petitioner.
Shri Prabhanshu Shukla - Government Advocate for the
respondents/State.
ORDER
This is a petition by the petitioner while praying for the following
reliefs:
"A. The Hon'ble court may kindly be pleased to set
aside the impugned order dated 17.11.15 (Annex. P-3).
B. To grant any other relief as deemed fit and proper in
the circumstances of this case."
2. The facts in brief as set forth in the memorandum of writ petition
reflect that the petitioner herein was holding the post of Constable 7th
Battalion, Bhopal. A case against the petitioner was registered under Sections
7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 on
08.01.2013. Petitioner, after registration of the said offence, superannuated
on 31.01.2013. On 25.07.2013, charge sheet was filed by the prosecution in
the Competent Court under the provisions of Prevention of Corruption Act.
After conclusion of trial, the petitioner was convicted vide judgment dated
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
2 WP-20161-2015
25.09.2014 and was sentenced to undergo imprisonment of 3 years. The
judgment passed by the trial Court was assailed by the petitioner in Criminal
Appeal No.2792/2014 before this Court. This Court suspended the sentence
and granted bail to the petitioner vide order dated 16.10.2014. The said
criminal appeal is still pending consideration before this Court. After passing
of the order of suspension of sentence by this Court in criminal appeal, vide
impugned order dated 17.11.2015, the entire petitioner's pension has been
withdrawn in terms of Rule 9 of Madhya Pradesh Civil Services (Pension)
Rules, 1976 (hereinafter referred to as "Rules, 1976" ) by the State
Government. Assailing the said order, this petition is filed.
3. Counsel for the petitioner contended that the impugned order so
passed by the authority is unsustainable and is required to be set aside
inasmuch as this is a case where charge sheet in the criminal case was filed
against the petitioner by prosecution after his superannuation. The petitioner
stood superannuated on 31.01.2013 whereas charge sheet was filed on
25.07.2013. It is contended by the counsel that the petitioner was not
afforded any opportunity of hearing before passing of the order. The
opportunity of hearing is sine qua non before passing of the order in terms of
Rule 9 of Rules, 1976. This issue has already been dealt with by Division
Bench of this Court in the case of Radha Krishna Sharma v. State of M.P.
and others reported in ILR 2021 MP 1641 (DB) . Counsel has also placed
reliance on the decision of Gwalior Bench in W.P. No.19049/2020 (Mahesh
Singh Chouhan vs. State of M.P.) vide order dated 20.09.2023 and it is
contended by the counsel that the decision of Division Bench in the case
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
3 WP-20161-2015
of Radha Krishna Sharma (supra) was also relied upon by the Gwalior Bench
in the case of Mahesh Singh Chouhan (supra) also. It is also contended by the
counsel that recently the Indore Bench has also decided another case vide
order dated 24.09.2024 passed in W.P. No.11771/2025 (Dr. Rajesh Kothari
v. Urban Administration & Housing Department and others) . It is further
contended by the counsel that it was a case where the claim of the petitioner
therein regarding second kramonnati was declined on account of pendency of
criminal case. The Indore Bench, while dealing with the various decisions,
concluded that in none of the decisions the scope of Rule 9(6)(b)(i) of Rules,
1976 was considered and accordingly, the Indore Bench held that the term
'judicial proceedings' which finds mentioned at various stages of Rule 9
mean that the criminal proceedings instituted on the date on which the
cognizance is taken on the complaint or report of the police. It is contended
by the counsel that the said decision of the Indore Bench in Dr. Rajesh
Kothari (supra) reveals that the stage of cognizance in the present case was
an important stage which was required to be considered in order to ascertain
the applicability of Rule 9 of Rules, 1976. It is also contended by the counsel
that there is another decision of Division Bench of this Court in W.A.
No.153/2017 (State of M.P. and another v. Prahlad Amarchiya) and as per
the said decision, it is crystal clear that after retirement, the prosecution of the
employee is impermissible as the effective date to ascertain the stage of
judicial proceedings would be the date on which cognizance in respect of a
criminal case is taken. Thus, the impugned order deserves to be quashed.
4. Per contra, counsel for the State submits that the the issue which is
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
4 WP-20161-2015
being sought to be agitated in the present case does not require much debate
as the same has already been considered and decided by the Full Bench of
this Court in the case of Lal Sahab Bairagi v. State of M.P. and others
reported in 2020 (2) MPLJ 551 . It is contended by the counsel that as per
decision of the Full Bench in Lal Shaba Bairagi (supra), the decision of Full
Bench in the case of Ram Sewak Mishra v. State of M.P. reported in 2017
(4) M.P.L.J. (F.B.) 428 has already been overruled and therefore, the
petitioner is making a futile attempt to rely on the decision which has already
been overruled by the Full Bench. It is also contended by the counsel that no
opportunity of hearing is required if the Authority intends to pass the order
in respect of Rules 8 and 9 of Rules, 1976 and the said order is an offshoot of
conviction of pensioner. The Division Bench has also taken the same view in
W.A. No.911/2022 (Kamata Prasad Soni v. State of M.P. and others) vide
order dated 05.01.2023 . Thus, submits that present petition deserves to be
dismissed.
5. Heard the submissions advanced on behalf of the parties and
perused the record.
6. Perusal of the record reflects that the petitioner is making an attempt
to dispute the impugned order while alleging that it is case where though a
criminal case was registered against the petitioner while he was in
employment, but charge sheet in the matter was filed by the prosecution after
retirement of the present petitioner and hence, it is the contention of the
present petitioner that the powers under Rule 9 of Rules, 1976 cannot be
exercised in violation of principle of natural justice.
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
5 WP-20161-2015
7. A perusal of the decision in the case of Lal Sahab Bairagi (supra)
reveals that before the Full Bench, following three questions were referred:
"1. Whether in view of the specific exclusion of the
procedure for providing hearing incorporated in Rule
8(3) of the Pension Rules of 1976, in respect of the
cases falling under Rule 8(2), the same can be insisted
upon in the light of the Full Bench decision in the case
of Ram Sewak Mishra (supra) ?
2. Whether the Full Bench judgment in the case of Ram
Sewak Mishra (supra) deserves to be re-examined and
reconsidered in view of the words "in a case not falling
under Sub-rule 2" clearly and specifically incorporated
in Rule 8(3) of the Pension Rules of 1976?
3. Whether the authority is required to issue a show
cause notice prior to passing of an order in terms of
Rules 8 and 9 of the Pension Rules of 1976, in cases of
withdrawal of pension or part thereof on account of
conviction in a criminal case?"
8. The aforesaid three questions were answered by the Full Bench in
following manner:
"(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(3) 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 overruled.
(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."
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
6 WP-20161-2015
9. The Full Bench in the operative paragraph of the judgment
concluded that the principles of natural justice are expressively excluded and
has no application to the cases falling under Rule 8(2) of Rules, 1976. The
Full Bench also overruled the decisions of Division Bench of this Court in
Ram Sewak Mishra (supra) as well as Dau Ram Maheshwar v. State of M.P.
and others reported in 2017 (1) MPLJ 640 . The Full Bench observed that
however the power of the authority to take action under the Rules of 1976
can only be subjected to the guidelines as laid down by the Supreme Court in
the case of Union of India vs Tulsiram Patel reported in AIR 1985 SC 1416
= (1985)3 SCC 398.
10. To deal with controversy it is required to consider Rule 9 of Rules
of 1976 which provides 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;
(2) (a) The departmental proceedings, if instituted while
the Government servant was in service whether before
his retirement or during his re-employment, shall, after
the final retirement of the Government servant, be
deemed to be proceedings under this rule and shall be
continued and concluded by the authority by which they
were commenced, in the same manner as if the
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
7 WP-20161-2015
Government servant had continued in service:
Provided that where the departmental proceedings are
instituted by an authority subordinate to the Governor,
that authority shall submit a report regarding its findings
to the Governor.
(b) The departmental proceedings, if not instituted while
the Government servant was in service whether before
his retirement or during his re-employment:-
(i) shall not be instituted save with the sanction of the
Governor;
(ii) shall not be in respect of any event which took place
more than four years before such institution; and
(iii) shall be conducted by such authority and in such
place as the Government may direct and in accordance
with the procedure applicable to departmental
proceedings:
(a) in which an order of dismissal from
service could be made in relation to the
Government servant during his service in
case it is proposed to withhold or withdraw a
pension or part thereof whether permanently
or for a specified period; or
(b) in which an order of recovery from his
pay of the whole or part of any pecuniary loss
caused by him to the Government by
negligence or breach of orders could be made
in relation to the Government servant during
his service if it is proposed to order recovery
from his pension of the whole or part of any
pecuniary loss caused to the Government.
(3) No judicial proceeding, if not instituted while the
Government servant was in service, whether before his
retirement or during his re-employment, shall be
instituted in respect of a cause of action which arose or
in respect of an event which took place, more than four
years before such institution.
(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:
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
8 WP-20161-2015
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.
(5) Where the Government decides not to withhold or
withdraw pension but orders recovery of pecuniary loss
from pension, the recovery shall not be made at a rate
exceeding one-third of the pension admissible on the
date of retirement of a Government servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
9 WP-20161-2015
to be instituted on the date on which the
statement of charges is issued to the
Government servant or pensioner, or if the
Government servant has been placed under
suspension from an earlier date, on such date;
and
(b) judicial proceedings shall be deemed to
be instituted-
(i) in the case of criminal
proceedings, on the date on which
the complaint or report of a police
officer, of which the Magistrate
takes cognizance, is made, and
(ii) in the case of civil proceedings,
on the date the plaint is presented
in the Court."
11. Rule 9(1) of Pension Rules, 1976 provides that the Governor has
the right of withdrawing or withholding the pension (partly or entirely) of a
retired government servant either permanently or temporarily, and such
power is to be exercised, when grave misconduct or negligence is committed
by the pensioner during the period of his service (including service rendered
upon re-employment after retirement), and the pensioner was found guilty
for such misconduct or negligence in any disciplinary or judicial proceeding.
His excellency the Governor is also vested with the power to order recovery
from the pension, if due to such misconduct or negligence of the pensioner
any pecuniary loss is caused to the Government. A perusal of Rule 9 reflects
that the power is exercised when misconduct or negligence committed during
the service is taken note of. Thus, the contention of the petitioner that the
charge sheet was filed subsequently, therefore, the action as per the Rule 9
cannot be taken, apparently dehors the very scheme of the provision. As per
Rule 9, the words "during the period of service " is qua misconduct or
negligence and cannot be construed as if same refers to filing of charge sheet
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
10 WP-20161-2015
or delivery of judgment of conviction during the period of his service career.
The misconduct or negligence must be committed when pensioner was in the
service, albeit, a charge sheet pertaining to the same is filed in a criminal
case prior or after his superannuation. Similarly, a judgment of conviction
can also be passed after retirement of the pensioner. However, in the entire
series of events, the decisive point would be as to when such grave
misconduct or negligence is committed by the pensioner.
12. In the case in hand, undisputedly, the petitioner has been convicted
under the aforesaid provisions of Prevention of Corruption Act on the
allegation that he was guilty of obtaining gratification. Thus, such conduct of
the petitioner was undisputedly amounts to grave misconduct and the said
alleged offence was committed by the petitioner during his service carrier
and accordingly, upon his conviction after retirement, he was later on
confronted with the impugned order which was passed in terms of Rule 9 of
Rules, 1976. The aforesaid passing of order if tested on the anvil of the law
laid down by Full Bench in the case of Lal Sahab Bairagi (supra), it reveals
that no illegality or irregularity can be attached to the same on the ground
that no opportunity of hearing was afforded to the petitioner. Thus, this Court
does not find any merit in the petition.
13. The reliance placed upon by the petitioner on the case of Radha
Krishna Sharma (supra) is misconceived as the same has already been
overruled by the Full Bench in Lal Sahab Bairagi (supra). The decision
rendered in the case of Mahesh Singh Chouhan (supra) has been decided on
the basis of Radha Krishna Sharma (supra) which has already been overruled
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
11 WP-20161-2015
by Division Bench in Lal Sahab Bairagi (supra). The petitioner also cannot
take recourse to the decision of Dr. Rajesh Kothari (supra) as the same was
the case where the benefit of increment was declined and therefore, the Court
considered the provisions of Rule 9(6)(b)(i) of Rules, 1976. Rule 9(6)(b)(i)
of Rules, 1976 which only clarifies the date to ascertain the stage of judicial
proceeding, the term which occurs at various stages of Rule 9 of Rules,
1976.
14. However, Rule 9(1) of the Rules, 1976 clearly refers to the end of
the judicial proceedings, meaning thereby when the petitioner is found guilty,
which goes without saying that a convict is found guilty only upon his
conviction. The term judicial or departmental proceedings, which finds
mentioned in Rule 9(1) of the Rules, 1976 is merely referring to the nature of
proceedings. However, the applicability Rule 9(1) of Rules, 1976 comes into
picture after the conclusion of aforesaid proceedings, which results in finding
the pensioner to be guilty. As such, Rule 9(1) of Rules, 1976 is consequential
to conviction of petitioner in a criminal case. The same is not consequential
to institution of a criminal case or cognizance of an offence in a criminal
case i.e. primary stage of the criminal proceedings.
15. Resultantly, this Court does not find any merit in the present
petition.
16. The petition stands dismissed.
(MANINDER S. BHATTI)
JUDGE
NEUTRAL CITATION NO. 2025:MPHC-JBP:43937
12 WP-20161-2015
vc
