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IN THE HIGH COURT OF MADHYA PRADESH
S. K. Seth, CJ, R. S. Jha, Smt. Nandita Dubey, Rajeev Kumar Dubey and Sanjay Dwivedi, JJ.
Lal Sahab Bairagi v. State of Madhya Pradesh & Others
Writ Petition No. 16549 of 2016 (Jabalpur); Decided on 15.5.2019
(1) Civil Services (Pension) Rules, 1976 (M.P.) -- R. 8 (2) -- opportunity of hearing -- R. 8 (2) does not contemplate giving opportunity of hearing when pension is withheld or withdrawn on account of conviction of serious crime. 2017 (3) JLJ 177 (FB) = 2017 (4) MPLJ 482 and Dau Ram 2017 (1) MPLJ 640 overruled. [Paras 10 to 12]
(2) Natural Justice -- principle of natural justice or holding of enquiry is neither universal principle of justice nor inflexible dogma -- principles of natural justice are not incapable of exclusion in given situation. AIR 1985 SC 1416 = (1985) 3 SCC 398 followed. [Para 13]
(3) Civil Services (Pension) Rules, 1976 (M.P.) -- R. 8 (2) -- opportunity of hearing -- R. 8 (2) enables authority to exercise power under R. 8 (1) (b) upon conviction of serious crime -- while doing so, authority must consider whether his conduct which led to his conviction was such as warrants withholding/withdrawing of pension -- for that purpose, it has to peruse judgment of criminal court and consider all facts and circumstances of case -- this has to be done ex parte without hearing concerned pensioner -- authority must, however, bear in mind that conviction on criminal charge does not automatically entail withdrawal or withholding of pension. AIR 1985 SC 1416 = (1985) 3 SCC 398 followed. 2004 (4) MPLJ 555 approved. 2017 (3) JLJ 177 (FB) = 2017 (4) MPLJ 482 and 2017 (1) MPLJ 640 overruled. [Paras 14 & 15]
(4) Civil Services (Pension) Rules, 1976 (M.P.) -- Rr. 8 (2) and 8 (3) -- opportunity of hearing -- principles of natural justice are specifically and expressly excluded and have no application to cases falling under R. 8 (2) in view of opening words of R. 8 (3) -- when action is taken against pensioner under R. 8 (2), no notice required to be issued to pensioner -- nor can he insist upon prior opportunity of representation on strength of principles of natural justice. 2017 (3) JLJ 177 (FB) = 2017 (4) MPLJ 482 and 2017 (1) MPLJ 640 overruled. [Para 17 (i)]
(5) Civil Services (Pension) Rules, 1976 (M.P.) -- R. 8 (2) -- opportunity of hearing -- authority not required to issue notice or afford prior opportunity of representation before passing order under R. 8 (2) in respect of pensioner convicted in criminal cases -- however, power of authority to take action under Rules would be subject to guidelines as stated by Supreme Court in case of Tulsiram Patel and reiterated by this Bench in this judgment. AIR 1985 SC 1416 = (1985) 3 SCC 398 referred to. [Para 17 (iii)]
¼1½ flfoy lsok ¼isU'ku½ fu;e] 1976 ¼eŒÁŒ½ & fuŒ 8¼2½ & lquokbZ dk volj & fuŒ 8¼2½ esa xaHkhj vijk/k dh nks"kflf) ds dkj.k isU'ku jksds tkus ;k izR;kg~r fd, tku ij lquokbZ dk volj nsuk vuq/;kr ughaA 2017 ¼3½ ts ,y ts 177 ¼iw.kZ U;k;ihB½ % 2017 ¼4½ ,e ih ,y ts 482 rFkk 2017 ¼1½ ,e ih ,y ts 640 myVk x;kA ¼iSjk 10 ls 12½
¼2½ uSlfxZd U;k; & uSlfxZd U;k; dk fl)kar vFkok tkap djuk u rks U;k; dk loZO;kih fl)kar gS] u vVy uhfr gh & fdlh fof'k"V ifjfLFkfr esa uSlfxZd U;k; ds fl)karksa dk viotZu udkjk ugha tk ldrkA , vkb ,y vkj 1985 ,l lh 1416 % ¼1985½ ,l lh lh 398 vuqlfjrA ¼iSjk 13½
¼3½ flfoy lsok ¼isU'ku½ fu;e] 1976 ¼eŒÁŒ½ & fuŒ 8¼2½ & lquokbZ dk volj & fuŒ 8¼2½ esa Ákf/kdkjh dks xaHkhj vijk/k dh nks"kflf) dh n'kk esa fuŒ 8¼1½¼[k½ ds v/khu 'kfDr Á;qDr djus ds fy, l{ke cuk;k x;k gS & ,slk djrs le; Ákf/kdkjh dks ;g euu djuk vko';d gS fd ftl vkpj.k ds fy, mldh nks"kflf) dh xbZ og D;k ,slk gS ftlls isU'ku jksduk@ÁR;kg~r djuk okaNuh; & bl Á;kstukFkZ mls nkafMd U;k;ky; ds fu.kZ; dk ifj'khyu djuk gksxk rFkk Ádj.k ds leLr rF;ksa vkSj ifjLFkfr;ksa ij fopkj djuk gksxk & ;g lac) isU'kuHkksxh dks lqus fcuk] ,di{kh; fd;k tkuk gksrk gS & rFkkfi] Ákfèkdkjh dks ;g /;ku j[kuk gksxk fd nkafMd vkjksi ij nks"kflf) dk Lor% Áo`Ùk ifj.kke isU'ku jksdh tkuk ;k ÁR;kg~r dh tkuk ughaA , vkb vkj 1985 ,l lh 1416 % ¼1985½ 3 ,l lh lh 398 vuqlfjrA 2004 ¼4½ ,e ih ,y ts 555 vuqeksfnrA 2017 ¼3½ ts ,y ts 177 ¼iw.kZ U;k;ihB½ % 2017 ¼4½ ,e ih ,y ts 482 rFkk 2017 ¼1½ ,e ih ,y ts 640 myVk x;kA ¼iSjk 14 ,oa 15½
¼4½ flfoy lsok ¼isU'ku½ fu;e] 1976 ¼eŒÁŒ½ & fuŒ 8¼2½ rFkk 8¼3½ & lquokbZ dk volj & fuŒ 8¼3½ ds vkjafHkd 'kCnksa dh n`f"V ls] fuŒ 8¼2½ ds vèkhu vkus okys ekeyksa esa uSlfxZd U;k; ds fl)kar fofufnZ"Vr% vkSj vfHkO;Dr% vioftZr gSa rFkk mudks fcYdqy ykxw ugha gksrs & tc isU'ku Hkksxh ds fo#) fuŒ 8¼2½ ds v/khu dkjZokbZ dh tkrh gS rks isU'ku Hkksxh dks lwpuki= tkjh tkjh fd;k tkuk visf{kr ugha & u gh og uSlfxZd U;k; ds fl)karksa ds cy ij vH;kosnu ds iwoZ&volj dk vkxzg dj ldrk gSA 2017 ¼3½ 177 ¼iw.kZ U;k;ihB½ % 2017 ¼4½ ,e ih ,y ts 482 rFkk 2017 ¼1½ ,e ih ,y ts 640 myVk x;kA ¼iSjk 17¿1À½
¼5½ flfoy lsok ¼isU'ku½ fu;e] 1976 ¼eŒÁŒ½ & fuŒ 8¼2½ & lquokbZ dk volj & nkafMd Ádj.kksa esa nks"kfl) isU'kuHkksxh ds laca/k esa fuŒ 8¼2½ ds v/khu vkns'k ikfjr djus ds iwoZ Ákf/kdkjh }kjk lwpuki= tkjh fd;k tkuk vFkok vH;kosnu dk iwoZ&volj fn;k tkuk visf{kr ugha & rFkkfi] fu;eksa ds v/khu dkjZokbZ djus dh Ákf/kdkjh dh 'kfDr mPpre U;k;ky; }kjk rqylhjke iVsy ds ekeys esa fn, x, vkSj bl U;k;ihB }kjk bl fu.kZ; esa nksgjk, x, ekxZn'kZu ds v/;/khu gksxhA , vkb vkj 1985 ,l lh 1416 % ¼1985½ 3 ,l lh lh 398 fufnZ"VA ¼iSjk 17¿3À½
ORDER
Seth C.J. -- 1. This reference to the Full Bench arises on the following facts.
2. Petitioner was posted as a Chief Municipal Officer, Majholi. He was prosecuted and convicted by the Special Judge (PC Act) for offences punishable under section 409, 120B of the IPC and section 13(i)(d) r/w section 13(2) of the Prevention of Corruption Act,1988. The learned trial Judge found him guilty, therefore convicted and sentenced him to undergo period of sentence awarded. Against the conviction and sentence, petitioner preferred a Criminal Appeal and this Court has suspended the jail sentence awarded to the petitioner. After retirement, by order dated 8.8.2016, State Government forfeited pension of the petitioner.
3. Petitioner challenged the order dated 8.8.2016 in this Court and contended that the said order is unsustainable in law as no opportunity of hearing was afforded to him before passing the order dated 8.8.2016. In support of the contention, reliance was placed on the full Bench decision in the case of Ram Sewak Mishra v. State of Madhya Pradesh reported in 2017 (3) JLJ 177 (FB) = 2017 (4) MPLJ 482 wherein the majority approved the decision of the learned single judge in Dau Ram Maheshwar v. State of Madhya Pradesh reported in 2017 (1) MPLJ 640.
4. The Division Bench before which the above writ petition came up for hearing, doubted the correctness of the majority view taken in Ram Sewak Mishra (supra), and by order dated 26.11.2019 referred the matter for consideration of the larger Bench. That is how the matter has come up for hearing before us.
5. The following questions have been referred to this Larger Bench :--
“1. Whether in view of the specific exclusion of the procedure for providing hearing incorporated in rule 8(3) of the Pension Rules of 1976, in respect of the cases falling under Rule 8(2), the same can be insisted upon in the light of the Full Bench decision in the case of Ram Sewak Mishra (supra) ?
2. Whether the Full Bench judgment in the case of Ram Sewak Mishra (supra) deserves to be re-examined and reconsidered in view of the words “in a case not falling under Sub-rule 2” clearly and specifically incorporated in rule 8(3) of the Pension Rules of 1976 ?
3. Whether the authority is required to issue a show cause notice prior to passing of an order in terms of rules 8 and 9 of the Pension Rules of 1976, in cases of withdrawal of pension or part thereof on account of conviction in a criminal case?”
6. It is well settled that payment of pension to a pensioner is regulated by the provisions of M.P. Civil Services (Pension) Rules, 1976, and that the same has been made statutorily subject to future good conduct of the pensioner. The provisions of Rule 8 of the M.P. Civil Services (Pension) Rules, 1976, is reproduced herein below for ready reference :--
“8. Pension subject to future good conduct. -- (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
(b) The pension sanctioning authority may, by order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct :
Provided that no such order shall be passed by an authority subordinate to the authority competent at the time of retirement of the pensioner, to make an appointment to the post held by him immediately before his retirement from service :
Provided further 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].
(2) Where a pensioner is convicted of a serious crime by a Court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction.
(3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensi
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