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Madhya Pradesh High Court
Dhanraj Gaur vs The State Of Madhya Pradesh on 15 April, 2026
1 W.P.No. 17184/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION No. 17184 of 2024
DHANRAJ GAUR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri N.K. Gupta - Senior Advocate with Shri Shatru Daman Singh
Bhadouriyia- Advocate counsel for the petitioner .
Shri Kaushlendra Singh Tomar- GA for the respondents/State.
RESERVED ON: 31/03/2026
ORDER PASSED ON: 15/04/2026
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O R D E R
The petitioner has filed this writ petition challenging the order dated
10/08/2023 (Annexure P/1), whereby, his pension has been permanently
withheld under Rule 9(1) of the M.P. Civil Services (Pension) Rules, 1976
on account of his conviction for offences registered under the provisions of
Prevention of Corruption Act, 1988. The petitioner has also prayed for a
direction to respondents to pay him regular pension alongwith arrears w.e.f.
March' 2023.
2. Facts relevant for decision of this case are that the petitioner was
working as Assistant Commercial Tax Officer and was posted at Gwalior. A
criminal case was registered against him by Special Police Establishment,
Gwalior for offence punishable under the provisions of Prevention of
Corruption Act, 1988 (for short "PC Act"). Consequently, he was suspended
on 25/9/2014. However, after lapse of more than one year, when the trial did
not conclude, his suspension was revoked on 8/6/2016. The petitioner
retired from service w.e.f. 29/10/2020.
3. On account of pendency of the criminal trial, the provisional pension
was sanctioned in favour of petitioner vide order dated 10/3/2021.
Provisional pension was paid to him till February' 2023. Vide judgment
dated 26/12/2022, the petitioner was convicted for offence punishable under
Section 7 & Section 13(1)(d)/13(2) of PC Act and was sentenced to undergo
four years RI. The impugned order, thereafter, came to be passed on
10/8/2023, whereby, in exercise of powers under Rule 9(1) of the M.P. Civil
Services (Pension) Rules, 1976 (for short "Pension Rules"), petitioner's
pension has been withheld in toto permanently. Challenging this order, the
petitioner has filed the present writ petition.
4. The learned senior counsel for petitioner argued that as per the
provisions contained in Rule 9(1) of the Pension Rules, it is the Governor
who is empowered to withhold or withdraw pension or part thereof, whether
permanently or for a specified period, if in any departmental or judicial
proceeding, the pensioner is found guilty of grave misconduct. As per his
submission, in this case, the order has been passed by the State Government
in the name of Governor and not by the Governor. Therefore, the said order
passed invoking provisions of Rule 9(1) of the Pension Rules is without
jurisdiction and unsustainable in law.
5. It was further argued by learned senior counsel that the second
proviso to the Rule 9(1) of the Pension Rules provides 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. However, in the present case, the entire pension has been
withdrawn/withheld, which is in total derogation of the proviso to Rule 9(1)
of the Pension Rules. He thus submitted that the impugned order being
perverse in nature deserves to be quashed. It was further argued by him,
while placing reliance on the order of Division Bench of this Court in the
matter of Radha Krishna Sharma Vs. State of M.P. & ors. reported in ILR
2021 MP 1641 (DB), that even the Governor in case of pensioner, who is
found guilty of grave misconduct in judicial proceedings, has to apply his
mind to contemplate on the relevant factors of the gravity of offence viz.
whether the trial Court had imposed maximum or minimum punishment
prescribed under the law, expected hardships and whether there are any
extenuating circumstances which may lead to success in the appeal filed
against the conviction and sentence. It is his submission that after
considering those factors, the Governor should have decided whether to
withdraw/withhold pension entirely or partly and further such withholding
should be temporary or permanent. Relying upon aforesaid judgment he
also submitted that the opportunity of hearing was also required to be given
to the petitioner before passing the impugned order. On the basis of
aforesaid arguments it was submitted by learned senior counsel that the
present petition deserves to be allowed and consequential benefits should be
granted to the petitioner.
6. Per contra, Shri Tomar, learned Govt. Advocate appearing for the
State submitted that provisions of Rule 9(1) of the Pension Rules do not
contemplate grant of opportunity of hearing in express terms. Therefore, the
contention raised on behalf of the petitioner that no opportunity of hearing
granted before passing of the impugned order dated 10/08/2023 (Annexure
P/1) has no force and the impugned order cannot be said to be vitiated on
this count. In support of his submission, he relied upon Larger Bench
judgment of this court in the case of Sahab Bairagi Vs. State of M.P. and
Ors., reported in 2020(2) MPLJ 551. He further argued that the impugned
order is passed in the name of and by the order of Governor and, therefore,
it cannot be said that it has not been passed by the Governor. The order
passed is in consonance with provisions of Madhya Pradesh Govt. Rules of
Business.
7. It is further argued by him that the petitioner was involved in an
offence under the provision of PC Act which involved moral turpitude. The
prosecution has ended in his conviction and there is no stay on the
conviction and only the sentence has been suspended. Therefore, the
impugned order cannot be said to be bad in law. It is his further submission
that in cases of corruption, there can be no leniency shown in favour of
employee. There should be no tolenrance in such matters. It is his
submission that looking to the gravity of offence, the impugned order is
justified and is in accordance with law. On the strength of above arguments,
it was submitted by learned Govt. Advocate that the present petition is
devoid of any substance and, therefore, it deserves to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. Petitioner has been convicted for offence punishable under Sections 7
and Section 13 (1)(d)/13(2) of PC Act. His pension has accordingly been
withheld in toto and permanently, in exercise of powers under Rule 9(1) of
Pension Rules. Challenge to the said order has been made firstly on the
ground that opportunity of hearing was not afforded to the petitioner before
passing the impugned order. The issue so raised by learned senior counsel
for the petitioner is no more res-integra. The Larger Bench of this Court in
the case of Lal Sahab Bairagi (supra) has considered this aspect and had
held that the principles of natural justice have been expressly excluded and
have no application to the cases like the present one. For ready reference,
the issue answered by the Larger Bench in para 17 is reproduced
hereunder:-
"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(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."
It be noted here that the Larger Bench formulated question no.iii for
consideration in relation to Rule 8 & 9 of Pension Rules. However, while
answering the issue, it has referred only to Rule 8(2) of Pension Rules.
However, the provisions of Rule 9(1) of the Pension Rules are akin to Rule
8(2) thereof, and therefore, the same legal principle would apply in cases of
orders passed under Rule 9(1) of Pension Rules.
10. Learned senior counsel for the petitioner placed reliance upon the
Division Bench decision of this Court in the case Radha Krishna Sharma
(supra), wherein, in paragraph 7.2, the Division Bench has held that the
discretion conferred upon the Governor under Rule 9(1) of the Pension
Rules ought not to be exercised unilaterally and should be bilateral in
nature. In other words, the Division Bench held that the delinquent is
required to be afforded an opportunity of hearing before passing the order.
Unfortunately, the judgment rendered by the Larger Bench in the case of
Lal Sahab Bairagi (supra) was not placed before the Division Bench. The
Larger Bench judgment is the binding precedent not only on this Court but
also on Division Bench.
11. Learned senior counsel for the petitioner also relied upon the
aforesaid decision to say that before passing the order under Rule 9(1) of the
Pension Rules, the authority is required to consider various material aspects
including the gravity of charges levelled against the delinquent, the
maximum and minimum punishment prescribed in law for the offence and
the punishment imposed upon the delinquent in the criminal case, the
hardship that may be caused to delinquent. It is his submission that after
considering these factors, Governor has to decide whether to withdraw or
withhold pension in entirety or partly and further whether such withholding
would be temporary or permanent.
12. The Apex Court in the case of Municipal Committee, Bahadurgarh
vv. Krishnan Behari reported in (1996)2 SCC 714 held as under:
"2.The respondent was a clerk in the Municipality. He was
alleged to have misappropriated a sum of Rs 1548.78p. by
falsifying the accounts. He was prosecuted in a criminal case
and convicted under Section 409 of the Penal Code, 1860 and
sentenced. On appeal, the conviction was altered from Section
409 to Section 468 of the Penal Code, 1860. Section 468
reads:
"Whoever commits forgery, intending that the document
forged shall be used for the purpose of cheating, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine."
3.In view of the said punishment, the Municipal Committee
dismissed the respondent. The respondent filed an appeal
before the Director of Local Bodies who, while upholding the
correctness of the action, reduced the punishment to stoppage
of four increments and has also directed that the period
during which the respondent was out of service should be
treated as extraordinary leave. An appeal filed by the
Municipal Committee to the Commissioner was dismissed as
incompetent. A writ petition filed by the Municipal Committee
was also dismissed in limine by the High Court.
4.It is obvious that the respondent has been convicted of a
serious crime and it is a clear case attracting under proviso
(a) to Article 311(2) of the Constitution. In a case of such
nature -- indeed, in cases involving corruption -- there
cannot be any other punishment than dismissal. Any sympathy
shown in such cases is totally uncalled for and opposed to
public interest. The amount misappropriated may be small or
large; it is the act of misappropriate that is relevant. The
Director had interfered with the punishment under a total
misapprehension of the relevant factors to be borne in mind in
such a case."
13. Again in the case of U.P. SRTC vs. Vinod Kumar reported in (2008)1
SCC 115, the Apex Court was dealing with a case of a bus conductor who
was found to have allowed passengers to travel without ticket. The Apex
Court held as under:
"10.As stated in the preceding paragraphs, the respondent
had confined his case only to the conclusions reached by the
enquiry officer as well as the quantum of punishment.
Therefore, since the respondent had not challenged the
correctness, legality or validity of the inquiry conducted, it
was not open to the Labour Court to go into the findings
recorded by the enquiry officer regarding the misconduct
committed by the respondent. This Court in a number of
judgments has held that the punishment of removal/dismissal
is the appropriate punishment for an employee found guilty of
misappropriation of funds; and the courts should be reluctant
to reduce the punishment on misplaced sympathy for a
workman. That, there is nothing wrong in the employer losing
confidence or faith in such an employee and awarding
punishment of dismissal. That, in such cases, there is no place
for generosity or misplaced sympathy on the part of the
judicial forums and interfering with the quantum of
punishment. Without burdening the judgment with all the
judgments of this Court on this point, we may only refer to a
recent judgment in Divisional Controller, N.E.K.R.T.C. v. H.
Amaresh [(2006) 6 SCC 187 : 2006 SCC (L&S) 1290]
wherein this Court, after taking into account the earlier
decisions, held in para 18 as under: (SCC p. 193)
"18. In the instant case, the misappropriation of the
funds by the delinquent employee was only Rs 360.95.
This Court has considered the punishment that may be
awarded to the delinquent employees who
misappropriated the funds of the Corporation and the
factors to be considered. This Court in a catena of
judgments held that the loss of confidence is the primary
factor and not the amount of money misappropriated and
that the sympathy or generosity cannot be a factor which
is impermissible in law. When an employee is found
guilty of pilferage or of misappropriating the
Corporation's funds, there is nothing wrong in the
Corporation losing confidence or faith in such an
employee and awarding punishment of dismissal. In such
cases, there is no place for generosity or misplaced
sympathy on the part of the judicial forums and
interfering therefore with the quantum of punishment.
The judgment in Karnataka SRTC v. B.S. Hullikatti
[(2001) 2 SCC 574 : 2001 SCC (L&S) 469] was also
relied on in this judgment among others. Examination of
the passengers of the vehicle from whom the said sum
was collected was also not essential. In our view,
possession of the said excess sum of money on the part of
the respondent, a fact proved, is itself a misconduct and
hence the Labour Court and the learned Judges of the
High Court misdirected themselves in insisting on the
evidence of the passengers which is wholly not essential.
This apart, the respondent did not have any explanation
for having carried the said excess amount. This omission
was sufficient to hold him guilty. This act was so grossly
negligent that the respondent was not fit to be retained as
a conductor because such action or inaction of his was
bound to result in financial loss to the appellant
irrespective of the quantum."
(underlining [Ed.: Herein italicised.] is ours)"
14. The aforesaid judgments have been relied upon by Apex Court in the
case of U.P. SRTC vs. Suresh Chand Sharma reported in (2010)6 SCC
555, wherein the Court again held as under:
"23. In NEKRTC v. H. Amaresh [(2006) 6 SCC 187 : 2006
SCC (L&S) 1290 : AIR 2006 SC 2730] and U.P. SRTC v.
Vinod Kumar [(2008) 1 SCC 115 : (2008) 1 SCC (L&S) 1] this
Court held that the punishment should always be
proportionate to the gravity of the misconduct. However, in a
case of corruption/misappropriation, the only punishment is
dismissal.
24.Thus, in view of the above, the contention raised on behalf
of the employee that punishment of dismissal from service was
disproportionate to the proved delinquency of the employee, is
not worth acceptance."
15. The Full Bench of this Court in the case of Laxmi Narayan Hayaram
Vs. State of M.P. and Anr., reported in 2004(4) MPLJ 555 was dealing with
an issue regarding imposition of penalty on a Govt. servant on account of
his conviction while he was in service. The Full Bench held in para 12 as
under:-
"12. The second premise in the Sheetal Kumar Bandi (supra)
that in exercise of the power of judicial review, the Court can
examine whether there was consideration of the relevant facts
and circumstances by the disciplinary authority in imposing
the penalty and correct the penalty if it is excessive, is in
consonance with the decisions of the Supreme Court in
Challappan, Shankar Dass, Tulsiram Patel and Sunil Kumar
Sarkar (supra). If the conviction is for any minor offence
which does not involve any moral turpitude, a punishment of
removal or dismissal from service will certainly be excessive.
But where the conviction is on the ground of corruption, as in
this case, there can be no two views that imposition of
punishment byway of dismissal is just and proper and not
excessive."
16. The petitioner in this case also has been convicted in a serious offence
under the provisions of PC Act. His guilt has already been proved beyond
doubt in criminal trial. As discussed above, it has been a consistent view of
Apex Court that in cases of corruption, only dismissal (maximum
punishment) is the appropriate punishment.The Full Bench has also held
that where the conviction is on the ground of corruption, there can be no
two views that imposition of punishment by way of dismissal is just and
proper and not excessive. Similarly, when a pensioner is convicted on the
charges of corruption, the authority would be justified in imposition the
maximum punishment of withholding of pension in toto permanently. The
petitioner being a pensioner, the punishment of withholding of his pension
permanently, is therefore, the appropriate punishment.
17. The reliance placed upon Division Bench judgment of this Court in
the case of Radha Krishna Sharma (supra) is of no help to the petitioner in
view of aforementioned dictum of Apex Court and the Full Bench of this
Court, when the offence is of corruption.
18. The learned senior counsel for the petitioner also raised an objection
regarding competence of the Deputy Secretary of Commercial Tax
Department to have passed the impugned order. It is his submission that
under Rule 9 of Pension Rules, it is the Governor, who is competent to pass
the order and order is required to be passed by the Governor in person.
19. Said submission of learned senior counsel for the petitioner is
considered.
20. Under Article 166 of Constitution of India provides for conduct of
business of the Government of the State. It provides as under:
"166. Conduct of Business of the Government of the State.- (1)
All executive action of the Government of a State shall be
expressed to be taken in the name of the Governor.
(2)Orders and other instruments made and executed in the
name of the Governor shall be authenticated in such manner
as may be specified in rules to be made by the Governor, and
the validity of an order or instrument which is so
authenticated shall not be called in question on the ground
that it is not an order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the more convenient
transaction of the business of the Government of the State, and
for the allocation among Ministers of the said business in so
far as it is not business with respect to which the Governor is
by or under this Constitution required to act in his discretion."
Further, by virtue of Article 163 of Constitution of India, the
Governor of State acts with aid and advice of Council of Ministers. In
exercise of powers vested under Article 166(2) & (3) of Constitution of
India, the Governor of Madhya Pradesh has framed rules namely- Madhya
Pradesh Govt. Rules of Business.
21. Rue 9(1) of the Pension Rules empowers the Governor to pass order
for withholding of pension in part or in entirety, temporarily or permanently.
However, under the Madhya Pradesh Govt. Rules of Business, said power
has been delegated to the Council of Ministers. A perusal of impugned
order, particularly para 6 shows that the order has been passed by the
Council of Ministers on 18/7/2023, and thereafter, the formal order has been
passed in the name of the Governor by the Deputy Secretary. It is thus, seen
that the impugned order has been validly passed in view of the Madhya
Pradesh Govt. Rules of Business. Pertinently, before passing of impugned
order, the PSC was also consulted.
22. Consequently, in view of the aforesaid discussion, this Court is of the
considered view that impugned order dated 10/08/2023 (Annexure P/1)
withholding pension of the petitioner in toto permanently passed by
respondent no.1 does not suffer from any irregularity or illegality. Same is
accordingly upheld. The petition fails and is hereby dismissed.
(ASHISH SHROTI)
JUDGE
JPS/-
