ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant Government Pleader waives service of notice of Rule for the respondents.

2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.

3. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 24.12.2018 passed by the respondents. By the aforesaid order, the petitioner who had retired on superannuation has been inflicted with a penalty of 100% pension cut. Perusal of the order would indicate that the penalty has been imposed on the basis of a criminal case which resulted his conviction in an ACB case.

4. Mr. Shah, learned counsel for the petitioner would submit that on a complaint being filed on 3.2.2006, the petitioner was suspended and after he attained the age of superannuation on

31.5.2010 he was being paid interim pension. A criminal case resulted in conviction and he was sentenced to one year of imprisonment by judgment and order dated 19.8.2017. He would submit that since a Criminal Appeal No.1182 of 2017 has been filed and is pending and the sentence is suspended, the order of 100%

pension cut is misconceived.

5. Mr. Kurven Desai, learned AGP for the respondents would draw the attention of the Court to the order passed by this Court in Criminal Misc. Application (For Suspension of Sentence) No.22357 of 2017 in Criminal Appeal No.1182 of 2017, the order dated 8.9.2017 would indicate that considering the short duration of the sentence imposed on the petitioner i.e. one year during which it is not possible to hear the Appeal finally, the sentence imposed upon the applicant by the trial Court is suspended pending the hearing the final disposal of the appeal.

6. Reading of the aforesaid order would indicate that the conviction is not stayed and it is only the sentence which has been suspended. The issue has been considered by this Court in Special Civil Application No.10336 of 2019 dated 9.6.2022. Relevant paras of such decision is produced hereunder:

“5. Having heard the learned counsel for the respective parties, the question that needs to be considered by this Court is whether the petitioner whose appeal against the judgement and order of conviction is pending can be given the benefit of provisional pension and gratuity.

5.1 Rule 145 of the Gujarat Civil Services (Pension) Rules, 2002 reads as as under:

"145. Provisional payment of pension and gratuity where charge sheet is issued or judicial proceedings are instituted in respect of the Government employee against whom the departmental inquiry is pending : (1) In case of a Government employee against whom the Departmental Inquiry is initiated or prosecution is granted (i.e. charge- sheet is issued or FIR is filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the order of the competent authority on the report of the inquiry officer is not issued or the judgment of trial court is not delivered, as the case may be), the Pension Sanctioning Authority shall sanction provisional payment of full amount of pension as determined under sub-rule (3) of rule 142. No provisional payment of death-cum- retirement gratuity shall be sanctioned.

(2) In case of a Government employee against whom the Departmental Inquiry is initiated or prosecution is granted (i.e. charge sheet is issued or FIR is filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the order of the competent authority on the report of the inquiry officer's not issued or the judgement of trial court is not delivered, as the case may be), and two years have lapsed since the date of retirement, the Pension Sanctioning Authority shall sanction the provisional payment of pension and death-cum-retirement gratuity as under:-

(i) 100 per cent of pension as determined under sub-rule (3) of rule 14