Rajasthan High Court
Mahesh Chandra Soni S/O Bhagwati Prasad ... vs The State Of Rajasthan on 6 March, 2024
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2024:RJ-JP:10576]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 14891/2023
Mahesh Chandra Soni S/o Bhagwati Prasad Soni, Aged About 60
Years, R/o Raghav Sadan, Near Shri Kalyan Gurudwara, Ramlila
Maidan, District Sikar, Rajasthan- 332001.
----Petitioner
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
Department Of Medical, Health And Family Welfare, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur, Rajasthan.
2. The Director (Non-Gazetted), Directorate Of Medical And
Health Services, Jaipur, Rajasthan.
3. The Suprintendent, Shri Kalyan Government Medical
College, And Attached Hospital Group, District Sikar.
4. The Assistant Director, Directorate Of Pension And
Pensioners Welfare, Govt. Of Rajasthan, Jaipur,
Rajasthan.
----Respondents
For Petitioner(s) : Mr. Harendra Neel &
Ms. Sarah Sharma for
Mr. Vigyan Shah
For Respondent(s) : Dr.Vibhuti Bhushan Sharma, AAG with
Ms. Malti, AGC
HON'BLE MR. JUSTICE GANESH RAM MEENA
Order
Reserved On ::: February 06, 2024
Pronounced On ::: March 6, 2024
1. This petition has been filed by the petitioner with
the following prayers:-
"i) the impugned order dated 01.09.2023 passed
by Assistant Engineer, Pension and Pensions
Welfare Department for stopping of payment of
pension and other retiral benefits to petitioner and
[2024:RJ-JP:10576] (2 of 19) [CW-14891/2023]
the impugned actions of respondent authorities of
non-payment of payment and other retiral benefits
to humble petitioner may kindly be declared illegal
and arbitrary and therefore, same may kindly be
quashed and set-aside;
ii) by issuing appropriate writ, order or direction
in the nature thereof respondents may kindly be
directed to grant due pension & gratuity and other
retiral and terminal benefits to humble petitioner at
the rate of 12% per annum with consequential
benefits."
2. The basic issue before this Court is 'Whether
because of pendency of proceedings of a criminal case in
regard to the offences under Sections 498A & 406 IPC and
Sections 4 & 6 of the Dowry Prohibition Act, 1961, the retiral
benefits including gratuity and pension can be withheld by the
authorities more particularly in a case when no departmental
proceeding is pending against an employee ?'.
3. The factual matrix of the case is that the petitioner
was initially appointed on the post of Male Nurse Grade-II on
17.01.1985 and he joined the duty on the very same day in
the office of Chief Medical & Health Officer, Sikar. On the basis
of recommendations of the Departmental Promotion
Committee (for short 'the DPC') constituted in exercise of the
provisions given under the Rules, the petitioner was
promoted on the post of Male Nurse Grade-I vide order dated
12.08.2008.
[2024:RJ-JP:10576] (3 of 19) [CW-14891/2023]
On attaining the age of superannuation, the
petitioner was retired from the service vide order dated
22.03.2023 w.e.f. 31.08.2023.
4. When the petitioner was in service, an FIR
No.0065/2021 came to be registered at Police Station Mahila
Thana (Nagaur), District Nagaur, on 10.07.2021 for the
offences under Sections 498-A, 406, 420, 323, 354 IPC and
Sections 4 & 6 of Dowry Prohibition Act, 1961. The aforesaid
case was registered by the in-laws of the petitioner's son.
After completion of the investigation, the police submitted the
charge-sheet against the petitioner and other persons for the
offences under Sections 498-A & 406 of IPC and Sections 4 &
6 of the Dowry Prohibition Act, 1961 and the trial of the case
is pending before the Trial Court.
5. The Police Officers also submitted a misconduct
report dated 24.08.2022 to the Chief Medical and Health
Officer, Sikar for taking action against the petitioner. A
Committee was constituted by the department vide order
dated 26.02.2023 for conducting an inquiry into the
allegations of misconduct. The Enquiry Committee concluded
that since the allegations are in regard to the family disputes
and have nothing to do with the official duties, found no case
for departmental proceedings and finally, the Director (Non-
Gazetted), Medical and Health Services, Rajasthan, Jaipur,
[2024:RJ-JP:10576] (4 of 19) [CW-14891/2023]
vide order dated 12.04.2023 closed the departmental case on
the recommendations of the Enquiry Committee.
6. The Assistant Director, Pension and Pensioners'
Welfare Department vide order dated 25.08.2023 directed the
Treasurer, Sikar for stopping the process of retiral benefits
payment and other retiral benefits of the petitioner.
7. An order dated 01.09.2023 was also issued by the
Assistant Director, Pension and Pensioners' Welfare
Department in regard to stopping the process regarding
payment of pension and other retiral benefits of the
petitioner.
8. Mr. Harendra Neel and Ms. Sarah Sharma for Mr.
Vigyan Shah appearing for the petitioner submitted that
though the petitioner retired from service w.e.f. 31.08.2023,
he has not been given the retiral benefits including gratuity,
pension etc. Counsel further submitted that the petitioner is
facing a great financial hardship because he has encountered
serious diseases. Counsel also submitted that the
respondents have withheld the retiral benefits of the
petitioner merely on account of pendency of a trial of a
criminal case, however, the aforesaid case pertains to a
family dispute, lodged by the in-laws of the petitioner's son in
regard to demand of dowry on false and fabricated facts.
Counsel further submitted that the marriage of the son of the
petitioner was solemnized in the year 2016 and the case has
[2024:RJ-JP:10576] (5 of 19) [CW-14891/2023]
been registered in the year 2021 after five years of the
marriage, with a false and fabricated story. Counsel further
submitted that the petitioner has served with the respondent
department for about 38 years and has received various
appreciation certificates and he was never subjected to any
departmental proceedings for any kind of misconduct
pertaining to the official duties. Counsel also submitted that
withholding of the retiral benefits including the pension and
gratuity is violative of right to life because the petitioner has
only the retiral benefits as the sources of income for
livelihood.
9. Counsel also submitted that the action of the
respondents in withholding the retiral benefits including the
pension and gratuity, is illegal, arbitrary and therefore, the
respondents be directed to release the retrial benefits to the
petitioner with interest.
10. Dr. Vibhuti Bhushan Sharma, learned AAG assisted
by Ms. Malti, AGC submitted that it is not in dispute that the
judicial proceedings are pending against the petitioner and
therefore, in view of Rule 90 of the Rajasthan Pension Rules,
1996, the respondents have rightly withheld the retiral
benefits of the petitioner.
11. Considered the submissions made by the counsel
appearing for the respective parties.
[2024:RJ-JP:10576] (6 of 19) [CW-14891/2023]
12. The facts stated in the above paras are not in
dispute.
13. The respondents have not come out with any case
that the petitioner has ever been subjected to any kind of
disciplinary proceedings or any disciplinary proceedings
related to the official duties or misconduct are pending
against him. Rule 90 of the Pension Rules, 1996 is quoted as
under:-
"90. Provisional pension and provisional retirement
gratuity where departmental or judicial proceedings
are pending
(1) (a) In respect of a Government servant
referred to in sub rule (4) of Rule 7, the Director,
Pension Department, Rajasthan, on receipt of
pension case alongwith sanction of provisional
pension from the appointing authority shall
authorise 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:
Provided that in cases where pension case could
not be prepared finally for one or the other reason
the appointing authority shall sanction provisional
pension in Form 33 after following procedure laid
down in sub-rule (3) of Rule 86 and send the case
to the Director, Pension for issue of Provisional
[2024:RJ-JP:10576] (7 of 19) [CW-14891/2023]
Pension Payment Order till the Departmental
Enquiry is finalised.
(b) The provisional pension shall be authorised by
the Director, Pension Department, 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:
Provided that no recovery shall be made from the
provisional pension paid under sub-rule (1), where
the pension finally sanctioned is less than the
provisional pension or the pension is reduced or
withheld either permanently or for a specified
period.
(c) In respect of the Government Servant
referred to in sub-rule (4) of rule 7, the provisional
retirement gratuity may be paid as under:-
(i) fifty percent amount of gratuity of the
Government Servant against whom departmental
proceedings have been instituted under rule 16 of
the Rajasthan Civil Services (Classification, Control
and Appeal) Rules, 1958 or against whom criminal
case involving moral turpitude or offence relating
to his official duty is pending; and
(ii) twenty percent of amount of gratuity to the
Government Servant against whom amount of
House Building Advance has been set apart for
recovery out of retirement gratuity at the time of
grant of House Building Advance or against house
rent of Government Accommodation is due.
(2) The provisional retirement gratuity paid under
clause (c) of sub-rule (1),-
[2024:RJ-JP:10576] (8 of 19) [CW-14891/2023]
(i) shall be adjusted against final retirement
gratuity sanctioned to such Government servant
upon conclusion of departmental proceedings or
Judicial proceedings and if amount paid is in excess
of amount payable, such excess amount shall be
recovered; and
(ii) shall be recovered from the Government
servant who is removed or dismissed from the
service on finalization of departmental proceedings
under rule 16 of the Rajasthan Civil Services
(Classification, Control and Appeal) Rules, 1958 or
criminal case involving moral turpitude or offence
relating to his official duty."
14. The service and retiral service gratuities are being
paid under the provisions of the Pension Rules, 1996 on
completion of minimum service by an employee which is
equal to one-fourth of his emoluments for each completed
three monthly period of qualifying service subject to a
maximum of 16.5 times the emoluments. The pension is also
allowed to an employee on retirement on the basis of
qualifying service and the rate prescribed. The provisions of
the Pension Rules, 1996 clearly speaks that the pension and
gratuity are the amounts credited to the petitioner on the
basis of services rendered by him with the respondents. The
benefits accruing under the Rules in regard to the services
rendered by the petitioner on retirement cannot be withheld
because of any proceedings which do not relate to the official
[2024:RJ-JP:10576] (9 of 19) [CW-14891/2023]
duties and more particularly in the matters like family
disputes etc. which have nothing to do with the official duties.
The judicial proceedings as referred in Rule 90 of the Rules of
1996 certainly relates to any act of an employee committed
by him/her in his/ her office or in connection with the official
duties. A superannuated employee has no other source of
income. Any deprivation of superannuation benefits therefore
has serious consequences for the retired employee and his
family. He may have to garner resources at this stage at
considerable cost to maintain his standard of living or
alternatively be forced to reduce his standard of living for no
fault of his. Pension and gratuity are not bounty but
constitute a right to property under Article 300A of the
Constitution which cannot be deprived except in accordance
with law.
15. The Division Bench of this Court in the case of H.R.
Choudhary Vs. Central Administrative Tribunal, Jaipur
Bench, Jaipur & Ors.( D.B. Civil Writ Petition No.
12437/2012), decided on 27.01.2017 has observed as
under:-
"Rule 69 of the Pension Rules provides for grant of
provisional pension where departmental or judicial
proceedings are pending. Even if the appeal
against conviction preferred by the Petitioner be
treated as a continuation of the criminal case, the
words "judicial proceedings" will naturally have to
[2024:RJ-JP:10576] (10 of 19) [CW-14891/2023]
be read in the context of the rules as being
confined to a proceeding related to conduct in
service which led to conviction on a criminal
charge. To read into it the pendency of an appeal
preferred by the petitioner against his conviction
under Section 306 IPC to withhold full pension
would be doing complete violence to Rule 69 and
shall be completely beyond its jurisdiction and
scope. In (2009) 3 SCC 709(Paul Enterprises v.
Rajib Chatterjee & Co.) it was observed as
follows :-
"24. In a situation of this nature, the
interpretation clause should be given a
contextual meaning. It is not exhaustive. It is
trite that when a statutory enactment defines
its terms, the same should govern what is
proved, authorised or done under or by
reference to that enactment......."
The counter affidavit filed by the Respondents
before the Tribunal is a bundle of contradictions
reflecting a state of complete apathy unconcerned
with the duty to assist the Tribunal in dispensation
of justice. The Respondent acts through its officers
who are reposed power in trust to be used in good
faith to protect the interest of the Respondents and
not to involve it in unnecessary litigation frittering
away time and money. We are constrained to
observe that the trust has been completely belied
by action reflecting complete non application of
mind if not in abuse of the trust placed. The
shifting stands taken in official orders and that
before the Tribunal has resulted in illegal denial of
[2024:RJ-JP:10576] (11 of 19) [CW-14891/2023]
full pension and gratuity to the petitioner since his
superannuation in the year 2004. Regrettably, the
Tribunal failed to grasp issues for consideration
properly.
A superannuated employee has no other
source of income. Any deprivation of
superannuation benefits therefore has serious
consequences for the retired employee and his
family. He may have to garner resources at this
stage at considerable cost to maintain his standard
of living or alternately be forced to reduce his
standard of living for no fault of his. Pension and
gratuity are not bounty but constitute a right to
property under Article 300A of the Constitution
which cannot be deprived except in accordance
with law.
The withholding of full pension and gratuity is
therefore held to be arbitrary and illegal. The
Petitioner is held entitled tofull pension from date
of superannuation alongwith gratuity and other
superannuation benefits, if any. The Respondents
shall pay interest on Gratuity as provided for in
Rule 68 of the Pension Rules or any statutory
interest as the case may be. Relying on (1994)
2SCC 406 (R.R.Bhanot v. Union of India) the
Petitioner is held entitled to interest on the arrears
of pension @12% p.a. from the date of
superannuation till the actual date of payment."
16. The Hon'ble Supreme Court in the case of Pramod
Singh Kirar Vs. State of Madhya Pradesh & Ors. (Civil
Appeal Nos. 8934-8935 of 2022), decided on December
[2024:RJ-JP:10576] (12 of 19) [CW-14891/2023]
02, 2022, in a matter regarding non-appointment of a
candidate because of a criminal case for the offence under
section 498A IPC has directed to allow appointment to that
candidate on the post of Constable. The Hon'ble Apex Court
in the aforesaid judgment has observed as under:-
"6. At the outset, it is required to be noted that
the appellant applied for the post of Constable in
the year 2013 and as such was found to be
meritorious and was found eligible to be appointed
as Constable. In the verification form itself he
declared that he was tried for the offence under
Section 498A of IPC earlier. Therefore, as such
there was no suppression on the part of the
appellant in not disclosing true and correct facts. It
is also required to be noted that the appellant
came to be acquitted for the offence under Section
498A of IPC vide judgment and order dated
30.10.2006 i.e., 7 years before he applied for the
post of Constable. From the judgment and order of
acquittal passed by Trial Court it appears that
there was a matrimonial dispute which ended in
settlement and the original complainant did not
support the case of the prosecution and was
declared hostile in view of settlement out of the
court and the other prosecution witness(s)
examined in the case did not corroborate the
prosecution story. Thus, it can be seen that the
appellant did not face the prosecution for the other
offences of IPC. Therefore, for whatever has
happened in the year 2001 and the criminal case
for the offence under Section 498A resulted in
[2024:RJ-JP:10576] (13 of 19) [CW-14891/2023]
acquittal in the year 2006, the appellant should
not be denied the appointment in the year
2013/2014. The offence for which he was tried
ultimately resulted into acquittal had arisen out of
the matrimonial dispute which ultimately ended in
settlement out of the court. Under the
circumstances and in the peculiar facts of the
case, the appellant could not have been denied the
appointment solely on the aforesaid ground that
he was tried for the offence under Section 498A of
IPC and that too, for the offence alleged to have
happened in the year 2001 for which he was even
acquitted in the year 2006 may be on settlement
(between husband and wife).
7. Now so far as the reliance placed upon the
decision of this Court in the case of Anil Kanwariya
(supra) relied upon by the learned counsel
appearing on behalf of the respondent - State is
concerned on facts the said decision shall not be
applicable. It was a case where the candidate as
such suppressed the antecedents and by
suppressing the material facts obtained
appointment by fraud/misrepresentation and
suppression of material fact. In that case the
employee was convicted for the offences under
Section 343 and 323 of IPC. Therefore, at the time
of appointment he was found to be convicted.
Therefore, his termination came to be upheld by
this Court. In the present case such is not the
situation. Neither there was any suppression of
material fact on the part of the appellant nor he
was convicted for any offence under the IPC. The
[2024:RJ-JP:10576] (14 of 19) [CW-14891/2023]
alleged incident was of the year 2001 which
resulted into acquittal in the year 2006 and he
applied for the post of Constable in the year
2013/2014."
17. This Court in the case of Lalit Kumar Jain Vs.
State of Rajasthan & Ors., reported in RLW 1996 (1)
Raj. 126, in regard to a matter pertaining to suspension of
an employee has observed as under:-
"17. We now proceed to examine the case in the
light of the above pronouncements. The undisputed
facts narrated in earlier part of the judgment
reveal:
(i) the charge levelled against the petitioner is not
related to performance of his official duties;
(ii) the allegations against the petitioner lost its
penetration and gravity after his discharge from
the offences punishable under Sections 306 and
304B I.P.C. The petitioner was put under
suspension for criminal offence U/s. 306 I.P.C.
which was pending against him and this ground
was not available for continuation of suspension
order after his discharge from this offence ;
(iii) more than 87 months have passed from the
date of suspension, but still the trial of the case
has not commenced, in as much as, the charge has
not been framed as yet. The trial is likely to take a
long time;
(iv) there is no allegation or material on record to
show that in case the petitioner is allowed to
discharge his official duties, it would be against the
[2024:RJ-JP:10576] (15 of 19) [CW-14891/2023]
public interest or it is likely to interfere in
administration of justice, specially, in the changed
circumstances after discharge of the petitioner
from the offences under Sections 306 and 304B
I.P.C.
(v) the petitioner has already suffered agony of
prolonged suspension and its adverse effect on him
and his family members."
18. In the case of P.K. Pradhan v. State of Sikkim,
reported in 2001 CriLJ 3505 it has been observed as
under:-
"The legislative mandate engrafted in Sub-section
(1) of Section 197 debarring a court from taking
cognizance of concerned in a case where the acts
complained of are alleged to have been committed
by a public servant in discharge of his official duty
or purporting to be in the discharge of his official
duty and such public servant is not removable from
office save by or with the sanction of the
Government, touches the jurisdiction of the court
itself. It is prohibition imposed by the Statute from
taking cognizance. Different tests have been laid
down in decided cases to ascertain the scope and
meaning of the relevant words occurring in Section
197 of the Code: "any offence alleged to have been
committed by him while acting or purporting to act
in the discharge of his official duty." The offence
alleged to have been committed must have
something to do, or must be related in some
manner, with the discharge of official duty. No
question of sanction can arise under Section 197,
[2024:RJ-JP:10576] (16 of 19) [CW-14891/2023]
unless the act complained of is an offence; the only
point for determination is whether it was
committed in the discharge of official duty. There
must be a reasonable connection between the act
and the official duty. It does not matter even if the
act exceeds what is strictly necessary for the
discharge of the duty, as this question will arise
only at a later stage when the trial proceeds on the
merits. What a court has to find out is whether the
act and the official duty are so interrelated that one
can postulate reasonably that it was done by the
accused in the performance of official duty, though,
possibly I excess of the needs and requirements of
the situation."
19. In the case of Sau Sheela Rameshchandra
Bargaje vs. The Administrative Officer, Municipal
Education Board & Anr., writ petition No.12817 of
2017, the High Court of Bombay has observed as under:-
"18. In our view, the criminal proceedings filed at
the instance of the daughter-in-law of the
petitioner under Section 498A of the Indian Penal
Code and other related provisions against the
petitioner have nothing to do with the employment
of the petitioner with respondent nos. 1 and 3. If
any criminal proceedings would have been filed and
pending investigation relating to the employment
of the petitioner with the respondent no.1, the
situation would have been different. The principle
laid down by this Court in case of Shrikant
Ramchandra Inamdar (supra) applies to the facts
[2024:RJ-JP:10576] (17 of 19) [CW-14891/2023]
of this case. We do not propose to take any
different view in the matter."
20. In the present case, the petitioner has served with
the respondents for about 38 years with an unblemished
service record as nothing has been brought before this Court
by the respondents that his conduct was ever found to be
inappropriate during the whole service tenure. The pension,
gratuity and other retiral benefits are the earnings of an
employee for the services rendered by him with the
respondents. Taking away or withholding such benefits after
retirement amounts to depriving the petitioner from the right
to life because the retiral benefits are the sources by which
the petitioner and his family arrange for their bread and other
necessities.
21. On consideration of the law, referred in the above
paras, a convicted candidate for the offences in regard to the
family disputes can also be given appointment and after his
appointment he will also earn the service benefits which he
will get on his retirement. Whether any appointment of such
a person can deprive him from the retiral benefits after his
retirement, the answer would be no.
22. The basic object behind crediting the benefit of
pension, gratuity and other retiral benefits is that after
retirement when an employee is of an old age, may not face
[2024:RJ-JP:10576] (18 of 19) [CW-14891/2023]
any financial problem for his livelihood or necessities more
particularly in cases who are alone or are neglected by the
persons who are supposed to maintain them. If we go into
the facts of the case, the petitioner has served with the
respondents for about 38 years and by making contribution
from his salary and other contributions aided by the State
employer, the pension, gratuity and other retiral benefits
have been credited to him. Because of pendency of criminal
proceedings and that too in regard to any family dispute
which has nothing to do with the official duties, in no manner
can be said to be justified. The judicial proceedings, as
referred in Rule 90 of the Pension Rules, 1996 in view of this
Court, is in regard to the proceedings of an act of an
employee pertaining to the official duties or in the office. The
words 'judicial proceedings' as referred in Rule 90 of the
Pension Rules, 1996 cannot be treated for the proceedings
related to the "family disputes", which has nothing to do with
the official duties or functioning of the employee in his office.
The respondents themselves on a misconduct report after
inquiry have decided not to initiate disciplinary proceedings
against the petitioner.
23. Hence, in view of the discussions made above, the
writ petition deserves to be allowed and is accordingly
allowed. The order dated 01.09.2023 passed by the Assistant
Director, Pension & Pensioners' Welfare Department,
[2024:RJ-JP:10576] (19 of 19) [CW-14891/2023]
Rajasthan, Jaipur, for stopping the process of payment of
pension and other retiral benefits of the petitioner is hereby
set aside.
24. The respondents are directed to allow the retiral
benefits including the pension, gratuity etc. to the petitioner
within a period of two months from the date of submitting the
certified copy of this order.
25. In case the petitioner is not made the retiral
benefits including the pension, gratuity etc., within the above
given time, he would be entitled to get interest @ 9% per
annum on the due retiral benefits from the date of passing of
this order.
26. In view of the order passed in the main petition,
the stay application and pending application/s, if any, also
stand disposed of.
(GANESH RAM MEENA),J
Sharma NK/Dy. Registrar
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