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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, J.
Amanullahkhan Bhurekhan Pathan - Appellant
Vs.
State of Gujarat - Respondent
Special Civil Application No. 8452 of 2015
Decided On : 09-01-2017
Prevention and Corruption Act, 1988 – Sections 7, 13(1)(3) & 13(2) – GCSR Rules – Rule 24 – Constitution of India, 1950 – Article 226 – Employment and Service matter – Retirement – Claiming Pension benefits – Challenging order passed by respondent whereby the pension of the petitioner has been withdrawn on permanent basis by invoking provisions of Rule 24 of Rules – On attaining the age of superannuation on petitioner had retired from the Police Training College he was serving as an Inspector with C.I.D (Crime) prior to his serving at Police Training College – Petitioner enjoyed a blotless career however came to be lodged for offences under provisions of Prevention of Corruption Act which was registered with ACB Police Station – Held, Apex Court considered the question of conduct of a learned Additional Sessions Judge who had awarded death sentence in a case and had made a reference to the High Court for the confirmation of the death sentence, immediately after handing down the judgment and while the reference for confirmation was sub judice, he gave interviews to the press and Doordarshan (Television) in which he extensively commented on the merits of case and described the accused as one of the worst criminals his conduct bordered on contempt and was also violative of judicial propriety – While considering such conduct, a reference was also made of Section 2(c)(ii) "judicial proceedings" which would mean that even an Appeal is a continuation of the trial – When the judicial proceedings are already pending and the order of suspension of sentence is also passed by this Court, invoking powers under Rule 24 of the Rules by taking recourse to the Circular dated 1st October, 2009 by the respondent-authority is surely not sustainable – When Appellate Court suspended the sentence. Since there are no departmental proceedings initiated by the State, in absence of either the chargesheet or initiation of any proceedings as provided under the Disciplinary and Appeal Rules, the only aspect the department can rely upon is the conviction in the judicial proceedings – Petitioners superannuation and order of sentence having been stayed, there is nothing at present with the department to act upon such direction of 100% cut in the pension. Assuming that the respondent -authority at the time of retirement of the petitioner also made a note of fact that the criminal proceedings are pending and on its outcome, it would have right to initiate the departmental proceedings within four years of date of superannuation – Impugned order quashed and set aside – Petition Allowed. (Paras 17 to 20)
Sonia Gokani, J.
1. This petition is preferred under Article 226 of Constitution of India, challenging the order passed by the respondent dated 15th April, 2015, whereby the pension of the petitioner has been withdrawn on permanent basis by invoking the provisions of Rule 24 of the Gujarat Civil Service (Pension) Rules (for short "Rules").
2. The facts in a capsulized form are as follows :-
2.1. On attaining the age of superannuation on 31st July, 2008, the petitioner had retired from the Police Training College, Junagadh. He was serving as an Inspector with C.I.D (Crime), Ahmedabad, prior to his serving at the Police Training College. The petitioner enjoyed a blotless career. However, in the year 2004, a complaint being I-CR No. 15 of 2004 came to be lodged for the offences under the provisions of Prevention of Corruption Act which was registered with the ACB Police Station, Ahmedabad. The Special Court, after completion of the trial, chose to convict the petitioner. By way of filing Criminal Appeal No. 594 of 2013, the judgment of the Special Court came to be challenged. Criminal Misc. Application No. 6459 of 2013 was also moved which was entertained by this Court and order of sentence came to be suspended. The respondent-authority in the said circumstances, fixed provisional pension of the petitioner which he continues to receive.
2.2. A show cause notice was issued on 23rd December, 2014, calling upon the petitioner to show cause as to why the pension which the petitioner is receiving or its part may not be withdrawn. The period between 24.9.2004 to 19.10.2006 should not be considered as period of suspension.
2.3. Reply of the said show cause notice was given on 20th January, 2015. Upon receipt of reply dated 20th January, 2015, another notice was issued on 4th February, 2015, by which the earlier show cause notice was cancelled and by invoking the provisions of Rule 24 of the Rules, the petitioner was called upon to explain as to why pension should not be withdrawn and the petitioner was further called upon to explain as to why the period between 24th September, 2004 to 19th October, 2006, should not be considered as the period under suspension. It is the grievance of the petitioner that though the sentence has been suspended by this Court, the respondent still issued show cause notice and later on passed an order to withdraw the pension. The latest show cause notice also has been replied to.
2.4 It is his say that in view of the challenge to the conviction by preferring an appeal, coupled with the facts, the sentence was suspended by this Court, no occasion for the respondent would arise either to issue show cause notice or to pass the order under Rule 24(3) of the Rules, when the judicial proceedings are yet to conclude since the Appeal challenging conviction is pending. The petitioner has sought to rely upon the sub-rule (5) of Rule 24 of the pension Rules and [sub-clause (ii) of Clause (b)] sub -rule (2) of Rule 24. It is the grievance of the petitioner that the decision taken on 15th April, 2015 suffers from non application of mind. There was no reason for the respondent to issue such a show cause notice after a period of almost seven years after the petitioner attained the age of superannuation, and the impugned order is challenged on the ground that the departmental inquiry after a stage has not commenced and hence, has remained inconclusive. Pending such an inquiry, no authority can pass such a harsh order by misinterpreting Rule 24 of the Rules and grant of bail or suspension of sentence, even though would not mean that the petitioner is declared innocent, the order is a non-speaking and cryptic order. The petitioner also submits that a bare perusal of the impugned order makes it clear that the respondent has not recorded his satisfaction to pass the impugned order. The petitioner has sought for the following prayers :-
"(A) Admit and allow this petition;
(B) Allow this petition by quashing and setting aside th
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