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2020 Supreme(MP) 1029
IN THE HIGH COURT OF MADHYA PRADESH
Sanjay Dwivedi, J.
Gendan Singh Gaharwar v. State of M.P.
Writ Petition No. 19607 of 2019 (J); Decided on 9.10.2020
Somesh Shukla for petitioner. Darshan Soni, Panel Lawyer for respondents No.1 and 2; Ashutosh Gupta for respondent No.3
Headnote:
Constitution of India -- Art. 226 -- after retirement of petitioner, criminal case instituted against him -- 100% pension not granted and gratuity amount retained -- petitioner acquitted -- respondents preferred appeal before High Court -- respondents treated said appeal to be continuation of trial -- once person is acquitted by trial Court and appeal is filed in High Court, pendency of appeal cannot deprive employee to get retiral benefits -- respondents directed to release 100% pension and release amount of gratuity to petitioner. 2002 (5) MPHT 11 (DB) and Writ Appeal No. 268 of 2019 relied on.
[Paras 7 & 8
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ORDER
1. With the consent of the learned counsel for the parties since the pleadings are complete, the matter is heard finally.
2. This petition under Article 226 of the Constitution of India is not filed against any specific order, but it is against the arbitrary and illegal action of the respondents thereby not considering the case of the petitioner for grant of 100% pension to him and also against retaining the gratuity amount for which he is otherwise legally entitled. The non-grant of pension as well as gratuity is based upon a reason that in a criminal case instituted against the petitioner, though he has been acquitted vide judgment dated 23.7.2018 (Annexure-P/1) by the Special Court, Khandwa, but respondent No.3 has preferred an appeal against the said judgment before the High Court and that appeal is pending, and the respondents, treating the said appeal to be continuation of trial, are not granting the benefit of 100% pension to the petitioner and have also retained the gratuity amount. Therefore, against the said illegal and arbitrary action of the respondents, the petitioner has preferred this petition claiming following reliefs:-
“(i) Direct the respondent No.1 to consider the case of the petitioner and grant 100% pension to the petitioner as per the rules, along with the arrears;
(ii) Direct the respondent to release the gratuity amount to the petitioner to which the Petitioner is entitled in lieu of his services;
(iii) Direct the respondent to consider the case of the petitioner for promotion and if the petitioner is found fit for promotion then his pension and other benefits may be calculated treating him as promoted employee from post of Tahsildar to Deputy Collector.”
3. As per the facts of the case, the petitioner was retired w.e.f. 30.5.2016 and challan in respect of criminal case instituted against him was filed on 19.1.2017. The challan was filed after the retirement of the petitioner as during his services the Revenue Secretary has not granted sanction for prosecution and it was hanging between the Parent and Law Department. However, that was subsequently granted and challan was filed.
(3.1) The said criminal case was tried by the Special Judge, Khandwa and vide judgment dated 23.7.2018, the petitioner was acquitted from the charges levelled against him.
(3.2) The petitioner was only sanctioned 90% pension. In this regard, an order has been passed on 24.6.2016 (Annexure-P/2). The gratuity which was to be paid to the petitioner was also not paid to him. The petitioner thereafter made a representation to the Principal Revenue Commissioner on 13.3.2019 (Annexure-P/3) for grant of 100% pension and for releasing requisite gratuity amount, but that representation is still pending and has not been decided so far.
4. The petitioner has preferred this petition claiming reliefs as quoted hereinabove. However, reply has been filed by the respondents taking stand therein that after the judgment of Special Court, the Department took a decision to assail the said judgment in a higher forum and, therefore, M.Cr.C. No.1669/2019 has been filed on 8.1.2019 and as such, judicial proceeding is still pending against the petitioner, therefore, he is not entitled to get 100% pension and also the amount of gratuity.
5. In the aforesaid facts and circumstances of the case, the counsel for the petitioner submits that the stand taken by the respondents, is not acceptable and sustainable in the eyes of law for the reason that merely because the judgment passed by the Special Court in a criminal trial has been assailed by the respondents by filing an appeal before the High Court, the petitioner cannot be deprived to get the benefit of retiral dues though he has been cleanly acquitted by the trial Court. The pendency of appeal against the judgment passed in a criminal case cannot be treated to be continuation of trial as is held in civil cases that the appeal against the judgment and decree in civil Court considered to be a continuous proceed
