Punjab-Haryana High Court
Rajinder Singh vs Punjab State Agril Mkg Board Etc on 20 November, 2024
Neutral Citation No:=2024:PHHC:153434
-1-
CWP-18606
18606 of 2018
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-18606
18606 of 2018
Reserved on
on: 13.11.2024
Pronounced on: 20.11.2024
Rajinder Singh
......Petitioner
Versus
Punjab State Agricultural Marketing Board and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: - Mr. Subhash Ahuja, Advocate,
for the petitioner.
Mr. Deepak Gupta, Advocate,
for the respondents.
NAMIT KUMAR, J.
1. Petitioner has invoked the writ jurisdiction of this Court by
filing the present petition under Articles 226/227 of the Constitution of
India, seeking quashing of the order dated 23.10.2017 (Annexure P-4);
order dated 12.01.2018 (Annexure P-6)
P 6) and affidavi
affidavit dated 11.10.2014
(Annexure P-3),
P whereby during the pendency of the criminal appeal,
100% pension of the petitioner has been stopped. Further, a writ of
mandamus has been sought for directing the respondents to release the
arrears of pension w.e.f. 30.03.2017
30.0 as also the monthly pension along
with interest, till the final outcome of criminal appeal pending before
this Court.
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2. Brief facts of the case, as have been pleaded in the
petition, are that petitioner joined as Auction Recorder on 28.01.1978
in the Market Committee, Samana, and thereafter he was promoted as
Mandi Supervisor on 31.05.1990. He retired as such on 31.10.2014
31.10.2014.
3. While, the petitioner was in service, FIR No.13 dated
12.04.2013 under Sections 7/13(1)(D), 13(2) of the Prevention of
Corruption Act, 1988 and Section 120
120-B IPC at Police Station
Vigilance Bureau, Patiala, was registered against the petitioner. It is
the case of the petitioner that his name was shown in column No.2 of
the challan presented by the police, however, he has been convicted and
sentenced to undergo rigorous imprisonment for five years along with
fine of Rs.15,000/-
Rs.15,000/ by the Court of learned Additional Sessions Judge,
Patiala, vide judgment dated 30.03.2017. The said judgment has been
challenged by the petitioner in Criminal Appeal S
S-1698-SB of 2017,
which has been admitted on 01.05.2018 and the sentence of the
petitioner has been suspended during the pendency of the appeal vide
order dated 24.07.2017. It has further been averred that the petitioner
was released all his retiral dues and provisional pension was also
granted on furnishing of affidavit dated 11.10.2014 (Annexure P
P-3).
He has been paid pension only upto 29.03.2017 and thereafter it has
been stopped and vide letter dated 23.10.2017
23.10.2017, he has been directed to
refund the said benefits as per his affidavit as he has been convicted.
Thereafter, petitioner served a legal notice dated 09.10.2017 for the
release of arrears of pension, however, the same has been replied vide
letter dated 12.10.2018,
12.10.2018 wherein it has been stated that since the
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petitioner has already been convicted, therefore, the arrears of pension
cannot be released to him till the acquittal in the criminal case.
4. On issuance of notice of motion, reply by way of affidavit
of Gurdeep Singh, Secretary, Market Committee, has been filed on the
same lines as given in reply to the legal notice.
5. Learned counsel for the petitioner has argued that the
action of the respondents in withholding 100% pension of the petitioner
w.e.f. 30.03.2017,
30.03.2017, the date he has been convicted in the criminal case
case,
is illegal, arbitrary and against Rule 2.2 of the Punjab Civil Services
Rules, (Volume II). He has further submitted that at the most the
respondents could have withheld 1/3rd pension of the petition
petitioner. He has
further submitted that no specific order has been passed by the
respondents for withholding 100% pension of the petitioner, neither
any show-cause
cause notice was issued nor an opportunity of hearing was
afforded by the respondents. He further submi
submitted that amount of
gratuity and leave encashment,
encashment, which had been paid to the petitioner at
the time of his retirement, on filing of his affidavit, may be adjusted
while granting arrears of pension to the petitioner. In support of his
contention, learned counsel for the petitioner has placed reliance on the
judgments of this Court in Prem Chand Dhand v. State of Punjab and
another, 2019(2) S.C.T. 662 and Sardara Singh v. State of Punjab
and others, 2016(3) PLR 341.
6. Per contra,, learned counsel for the respondents has
submitted that since the petitioner has been convicted in criminal case
and his retiral dues were released to him on his furnishing affidavit to
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the effect that in case of conviction in the criminal case, petitione
petitioner
would refund the retiral dues,
dues, therefore, due to his conviction, his
pension has been stopped w.e.f. 30.03.2017.
7. I have heard learned counsel for the parties and perused
the record.
8. The only
nly issue which arises for consideration before this
Court is as to whether 100% pension of the petitioner can be stopped on
his conviction in the criminal case.
9. This issue is no longer res integra as in the case of Prem
Chand (supra) after considering the same rule, it has been held that the
employer cannot withhold 100% pension of the convicted employee.
In the said judgment,
judgment it has been held as under: -
XX XX XX XX
"7. The facts which have been mentioned above are not
in dispute. After the retirement of the petitioner in the year
1999, on the basis of an FIR No. 29 dated 23.05.2001, the
petitioner was convicted under the 1988 Act as well as
under Section 409, 420 IPC. In an appeal, suspension of
sentence has been grantedd in favour of the petitioner but
petitioner remains a convicted employee even as of now.
The argument which has been raised by learned counsel
for the petitioner to challenge the order dated 11.02.2016
(Annexure P-1)
1) by which pension of the petitioner has
been stopped is that there is no power with the
respondents-State
State by which whole of the pension can be
stopped and, therefore, order dated 11.02.2016 (Annexure
P-1)
1) by which 100% pension of the petitioner has been
stopped, is contrary not only to the rule itself but also
settled proposition of law, wherein the said Rule 2.2 of the
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Punjab Civil Services (Punishment and Appeal) Rules,
1970 Vol. II has been interpreted by this Court.
8. In order to appreciate the argument, Rule 2.2 of the
Punjab Civil Services
es Rules, Vol. II is reproduced herein
for the ready reference:-
"2.1. Every pension shall be held to have been
granted subject to the conditions contained in
chapter VII of these rules.
2.2. Recoveries from pensions.
pensions.-(a) Future good
conduct is an implied condition of every grant of a
pension. The Government reserve to themselves the
right of withholding or withdrawing a pension or
any part of it if the pensioner be convicted of
serious crime or be guilty of grave misconduct.
In a case where a pensioner iis convicted of a
serious crime, action shall be taken in the light of
the judgment of the court relating to such
conviction.
In a case not covered by the preceding paragraph, if
the Government considers that the pensioner is
prima facie guilty of grave mi
misconduct, it shall
before passing an order,
order,-
(i) serve upon the pensioner a notice specifying the
action proposed to be taken against him and the
grounds on which it is proposed to be taken and
calling upon him to submit, within sixteen days of
the receipt of the notice or such further time not
exceeding
ding fifteen days, as may be allowed by the
pension sanctioning authority, such representation
as he may wish to make against the proposal; and
(ii) take into consideration the representation, if
any, submitted by the pensioner under sub
sub-clause
(i).
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Where a part of pension is withheld or withdrawn
the amount of such part of pension shall not
ordinarily exceed one third of the pension originally
sanctioned nor shall the amount of pension left to
the pensioner be ordinarily reduced to less than
three thousand
ousand five hundred rupees per month,
having regard to the consideration whether the
amount of the pension left to the pensioner, in any
case, would be adequate for his maintenance.
In a case where an order under clause (i) above is
to be passed by the Government,
vernment, the Public Service
Commission shall be consulted before the final
order is passed."
9. A bare perusal of the above Rule would show that
no doubt, view 'good conduct' is an employe
employee's condition
for the grant of pension but when a pensioner is con
convicted
of serious crime or is guilty of grave misconduct, the
Government has power to reconsider the grant of pension
and pass appropriate orders in that regard. As per Rule
2.2 of the Punjab Civil Services Rules, Vol. II reproduced
above, the Government does
oes not have the jurisdiction to
withdraw 100% pension. The same can be 1/3rd of the
total pension which a pensioner was getting.
10. Further, a bare perusal of the Rule 2.2(a), which
gives the power to the competent authority to withhold the
pension states
es that a future good conduct is an implied
condition of every grant of a pension and the government
reserve to themselves the right to withhold or withdraw the
pension or any part of it if the pensioner is convicted of a
serious crime or found to be guilt
guilty of a grave misconduct.
After noticing the said, the Rule 2.2(a) states that where a
pensioner is convicted of a serious crime, the action is to
be taken in the light of the judgment of the Court relating
to such conviction.
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11. In the next paragraph, it has been mentioned that in
case a pensioner is not covered by the conviction then the
Government is to consider as to whether a pensioner is
guilty of a prima facie misconduct or not. In case
authorities find that pensioner is guilty of grave
misconduct then
hen after granting due opportunity of hearing
to the concerned pensioner and after considering the
reply, if any filed, the decision can be arrived at as to what
action needs to be taken against the pensioner.
12. After noticing the above two situations, tthere is a
power which has been given to the competent authority to
pass an appropriate order of withholding or withdrawing
the amount of such part of pension which shall not
ordinarily exceed 1/3rd of the pension originally
sanctioned nor shall the amount of pension left to the
pensioner shall be ordinarily
rdinarily reduced to less than
Rs.3500/- per month. This is done so that a pensioner in
any case has an adequate amount for his/her maintenance.
13. The interpretation which the State counsel has
forwarded that inn case of conviction, the Government has
right to withhold full pension, is not borne out of the plain
reading of the Rules. The proviso where the power has
been given to withhold and a sealing has been fixed, is
duly applicable in the case of conviction bby the competent
Court of Law as well as in the case of grave misconduct
on which decisions the department has to arrive at after
due opportunity to the concerned pensioner (departmental
inquiry). Therefore, the distinction which is being sought
to create byy the State counsel, is not borne out of the
reading of the Rule 2.2 (a).
14. Learned counsel for the respondents states that as
the petitioner was held guilty of corruption, no leniency
can be shown in his favour and the action of the
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department was perfectly
ectly valid in withdrawing 100%
pension.
15. Argument which has been raised by learned counsel
for the respondents that the petitioner was convicted under
the Prevention of Corruption Act, 1988 and, therefore, no
leniency can be shown to the petitioner, ccannot be pressed
for denying the relief to the petitioner. There is no
exception carved out in Rule 2.2 in respect of the nature of
crime for which an employee has been convicted.
Therefore, once there is no power with the competent
authority to withhold 100%
00% pension, the same cannot be
done and the present order passed by the respondents
withholding 100% pension is beyond the competence of
the authorities and hence cannot be sustained.
16. A bare reading of the impugned order in the present
case would show
w that the authority while passing the
impugned order, has not at all gone through the
provisions of Rule under which the powers were being
exercised. It can be very well said that the impugned order
has been passed without any application of mind and,
hence, needs to be set-aside.
17. Further, Rule 2.2 of the Punjab Civil Services Rules,
Vol. II has already been interpreted by this Court to mean
that the Government has power to withhold only 1/3rd of
the pension which a pensioner was getting and not beyon
beyond
that.
18. In the case of Sardara Singh Vs. State of Punjab and
others, 2016 (3) PLR 341,, this Court while interpreting
Rule 2.2 of the Punjab Civil Services Rules, Vol. II held
that entire pension cannot be withheld. The relevant
paragraphs 4 and 5 of the
he said judgment are as under ::-
"4. In the written statement filed, a plea has been
taken that on account of Rule 2.2(a) of the Punjab
Civil Services Rules Vol
Vol-II Part-I [in short "Rule
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2.2(a)"], person who has been convicted by Court
has no right to pension
sion and, therefore, his pension
has rightly been stopped. Rule 2.2(a) reads thus:
thus:-
"2.2. Recoveries from pensions.
pensions.-(a) Future good
conduct is an implied condition of every grant of a
pension. The Government reserve to themselves the
right of withholding or withdrawing a pension or
any part of it if the pensioner be convicted of
serious crime or be guilty of grave misconduct.
In a case where a pensioner is convicted of a
serious crime, action shall be taken in the light of
the judgment of the court relati
relating to such
conviction.
In a case not covered by the preceding paragraph, if
the Government considers that the pensioner is
prima facie guilty of grave misconduct, it shall
before passing an order,
order,-
(i) serve upon the pensioner a notice specifying the
action
ion proposed to be taken against him and the
grounds on which it is proposed to be taken and
calling upon him to submit, within sixteen days of
the receipt of the notice or such further time not
exceeding fifteen days, as may be allowed by the
pension sanctioning
tioning authority, such representation
as he may wish to make against the proposal; and
(ii) take into consideration the representation, if
any, submitted by the pensioner under subclause (i).
Where a part of pension is withheld or withdrawn
the amount of such part of pension shall not
ordinarily exceed one third of the pension originally
sanctioned nor shall the amount of pension left to
the pensioner be ordinarily reduced to less than
three thousand five hundred rupees per month,
having regard to the consideration whether the
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amount of the pension left to tthe pensioner, in any
case, would be adequate for his maintenance.
5. The above provision would go on to show that
future conduct of the government servant is to be
taken into consideration. On account of conviction
on serious crime, action can be taken. However,
safe guards have been prescribed for ensuring that
the person can maintain himself and part of the
pension can be withheld which cannot normally
exceed 1/3rd of the pension originally sanctioned
nor shall the amount of pension left to the pensione
pensioner
be ordinarily
rdinarily reduced to less than Rs.
Rs.40 per
month."
19. Therefore, it is clear that a coordinate Bench has
already held that as per 2.2(a) of Punjab Civil Services
Rule, not more than 1/3rd of the pension granted can be
withheld.
20. or the respondents states that
Learned counsel for
while deciding Sardara Singh's case (supra), the Court
took into consideration the order passed by the Division
Bench in LPA No. 427 of 2013 dated 12.11.2014 vide
which while interpreting Rule 2.2(a) of Punjab Civil
Services Rule, the Division Bench had come to the
conclusion that 100% pension cannot be withheld.
Counsel for the respondents states that the said order was
recalled by the Division Bench and, thereafter, while
deciding the same LPA, the Division Bench vide order
dated 05.10.2016 allowed the LPA holding that 100%
pension can be stopped. In order to verify the facts, the
case file of the above mentioned LPA was summoned from
where it transpires that the Division Bench allowed the
LPA while interpreting Rule 2.2(a) aas applicable to
Punjab, which is being interpreted in the present case as
well on 12.11.2014. As Shankar Lal's case was relating to
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the State of Haryana, a review petition was filed on the
ground that Rule 2.2 as applicable in the State of Haryana
is different
rent and there is no 1/3rd sealing provided in the
said Rule and, therefore, the order dated 12.11.2014 is
liable to be recalled. It was under these circumstances that
the order dated 12.11.2014 was recalled by the Division
Bench and, thereafter, while int
interpreting the Rule 2.2 as
applicable to the State of Haryana, the LPA was dismissed
on 05.10.2016. Even though the order dated 12.11.2014
passed in LPA No. 427 of 2013 was recalled but it is a
matter of fact that the Division Bench while interpreting
the Rule
ule 2.2(a) as applicable in the State of Punjab, also
held that 100% pension cannot be stopped. Therefore, this
argument that the learned Single Judge while deciding
Sardara Singh's case inadvertently relied upon the order
dated 12.11.2014 cannot be accept
accepted.
21. Keeping in view the above, it is clear that order
dated 11.02.2016 (Annexure P
P-1) as far as it stops 100%
pension of the petitioner is not only contrary to the Rule
under which the power has been exercised but is also
against the settled principle of law mentioned here in
before and hence, the impugned order dated 11.02.2016
(Annexure P-1) is set-aside.
22. However, liberty is given to the respondents to pass
appropriate orders within a period of three months after
reconsidering the case of the pe
petitioner by taking into
consideration the law laid down by this Court mentioned
in the preceding paragraph of the judgment interpreting
Rule 2.2 of the Punjab Civil Services Rules, Vol. II
II.
23. After the order is passed by the competent authority
in pursuance
ance to the direction given today, whatever the
difference of pension, which the petitioner will be found
entitled for, from the date the same was stopped, shall be
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released to the petitioner within a period of next two
months.
24. The writ petition is allowed
lowed in above terms."
10. To the same effect iss the judgment of this Court in the case
of Sardara Singh (supra).
11. In the present case, neither any show
show-cause notice was
issued to the petitioner nor an opportunity of hearing has been granted
and further
er no specific order stopping full pension of the petitioner has
been passed by the respondents.
12. Consequently, the present petition is allowed and
impugned order(s) dated 23.10.2017 (Annexure P
P-4), 12.01.2018
(Annexure P-6)
P 6) and 11.10.2014 (Annexure P
P-3), in stopping the full
pension of the petitioner are quashed and set aside. However, liberty is
given to the respondents to pass appropriate orders within a period of
three months,
months after reconsidering the case of the petitioner by taking
into consideration the law laid down by this Court interpreting Rule 2.2
of the Punjab Civil Services Rules, Vol. II. After the order is passed by
the competent authority
authority in pursuance to the direction given above,
whatever the difference of pension, which the petitioner will be found
entitled for, from the date the same was stopped, shall be released to the
petitioner after adjusting the payment of gratuity and leave encashment,
within a period of next two months.
(NAMIT KUMAR)
20.11.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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