Madhya Pradesh High Court
Radheshyam Vishwakarma vs The State Of Madhya Pradesh on 20 December, 2024
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WP No. 26077 -2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION NO. 26077 of 2019
RADHESHYAM VISHWAKARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
.........................................................................................................
Appearance:
Shri Dhananjay Kumar Mishra - Advocate for the petitioner.
Shri Dilip Parihar - Panel Lawyer for the respondents /State.
..........................................................................................................
ORDER
(Reserved on :- 09.12.2024)
(Pronounced on :- 20 .12.2024)
The present petition has been filed challenging the order dated
22.02.2019 passed by the State Government (Annexure P-16) whereby the
entire pension has been permanently withdrawn.
2. The brief facts necessary for disposal of present petition are that the
petitioner was working on the post of Inspector in the office of Registrar
Firms and Societies, Madhya Pradesh and while he was in service, the
petitioner was involved in a criminal case under Section 13(1), 13(2) and
Section 7 of Prevention of Corruption Act. The trial was conducted in
Special Sessions Trial No.15/2001 in the Court of Special Judge
(Prevention of Corruption Act) Bhopal and vide judgment dated 23.11.2006
the petitioner has been convicted of the aforesaid offences under the
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provisions of Prevention of Corruption and sentenced to R.I. of 1 year each
under each of the said provisions and fine with default stipulations. It is not
in dispute that the petitioner has challenged the aforesaid conviction and
sentence before this Court by filing CRA No.2395/2006 wherein the
petitioner has been granted suspension of sentence by this Court and the
said appeal is still pending before this Court for final hearing.
3. The petitioner attained the age of superannuation on 31.10.2004
while the Sessions Trial was pending against him and after his conviction
on 23.11.2006, the State passed an order dated 07.12.2006 (Annexure P-8)
thereby permanently withdrawing the pension payable to the petitioner in
terms of Rule 9(1) of M.P. Civil Services Pension Rules, 1976 (for short
‘Rules of 1976’).
4. The aforesaid order was challenged before this Court by the
petitioner by filing WP. No.1960/2007 and the said petition was decided by
this Court on 11.10.2018 vide Annexure P-13 and the order of stoppage of
pension was set aside by this Court while relying on the judgment of Full
Bench of this Court in the case of Ram Sewak Mishra Vs. The State of
M.P. & Anr. 2017(4) MPLJ 428 wherein Full Bench had held that even for
a person convicted in a criminal trial, before passing any order of stoppage
of pension, granting opportunity of hearing is must. Thereafter, the State
has passed a fresh order dated 22.02.2019 vide Annexure P-16 which is
now impugned in the present petition and again an order permanently
withdrawing the entire pension of the petitioner has been passed.
5. The learned counsel for the petitioner while assailing the aforesaid
order of permanent stoppage of pension vide Annexure P-16 has raised the
sole ground that the said order has been passed in terms of Rule 8 and Rule
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9 of M.P. Civil Services (Pension) Rules, 1976 and as per Rule 9 of the
Rules of 1976, the competent authority is the Governor and the order not
having been passed by the Governor personally but having been passed by
the Executive Government i.e. Secretary in the name of Governor,
therefore, the order is absolutely without jurisdiction and it is only the
Governor who is competent and authorized to pass an order of stopping
pension in term of Rule 9 of Rules of 1976 and therefore, the order should
be set aside on this count. Reliance is placed on the judgment of Supreme
Court in the case of Brajendra Singh Yambem v. Union of India
reported in (2016) 9 SCC 20 to contend that stoppage of pension is not an
executive power but statutory power in terms of Article 309 of the
Constitution of India. It is argued that the earlier judgment of Supreme
Court which was rendered by a two judges Bench in the case of State of
M.P. v. Yashwant Trimbak reported in (1996) 2 SCC 305 has been
distinguished in the subsequent judgment of the Supreme Court in the case
of Brajendra Singh Yambem (supra). Therefore, this Court should quash
the order dated 22.02.2019.
6. Per Contra, the order is defended by the counsel for the State on the
ground that the order of stoppage of pension can be validly passed by
authority who is empowered under the Rules of Business of Executive
Government framed under Article 166 of the Constitution of India and
order is not required to be issued personally by the Governor because the
powers under Rules 8 & 9 M.P. Civil Services Pension Rules are not
statutory powers under the Constitution but are merely executive powers
which can be exercised in terms of Rules of Business of executive
Government of the State framed under Article 166 of the Constitution of
India.
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7. Heard the learned counsel for the parties and perused the record.
8. In the present case, the petitioner was subjected to a criminal case
under the various provisions of Prevention of Corruption Act and the
petitioner has been convicted under the provisions of Prevention of
Corruption Act and sentenced to jail imprisonment and fine by the Special
Sessions Court vide judgment dated 23.11.2006. The appeal against said
conviction and sentence is pending before this Court and he has been
granted benefit of suspension of sentence.
9. Consequent to conviction of the petitioner, the State Government
initially passed an order stopping pension of the petitioner vide Annexure
P-8 which was set aside by this Court in earlier round of litigation in WP
No.1960/2007 on 11.08.2018 relying on a Full Bench judgment of this
Court in case of Ram Sewak Mishra (supra). The said judgment in the
case of Ram Sewak Mishra (supra) has subsequently been held not to be
a good law by a larger Bench comprising of 5 judges of this Court in the
case of Lal Sahab Bairagi Vs. The State of M.P. and Ors. reported in
2020 (2) MPLJ 551 which was vehemently argued by the counsel for the
State. However, since the earlier petition had already been allowed relying
on the Full Bench judgment in the case of Ram Sevak Mishra (supra) and
a fresh order of stoppage of pension has now been passed, the aspect of
opportunity of hearing granted to the petitioner while passing earlier
pension stoppage order (Annexure P-8) is now insignificant because this
Court is only required to see the legality or otherwise of the fresh order
Annexure P-16 dated 22.02.2019.
10. The sole contention raised by the petitioner was that the order should
have been passed by the Governor personally and could not be passed by
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the competent authority with approval of Council of Ministers under the
Rules of Business of Executive Government of the State. Reliance was
placed on the judgment of Supreme Court in the case of Brajendra Singh
Yambem (supra). Before appreciating the aforesaid contention, Rule 8 & 9
of M.P. Civil Services (Pension) Rules, 1976 are required to be considered
which are reads as under:-
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 judgement 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 pensioner
is prima facie guilty of grave misconduct, it shall before passing
an order under sub-rule (1)
(a) serve upon the pensioner a notice specifying the
action proposed to be taken against him and the
ground on which it is proposed to be taken and calling
upon him to submit, within fifteen days of the receipt
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days as may be allowed by the pension sanctioning
authority, such representation as he may wish to make
against the proposal; and
(b) take into consideration the representation, if any,
submitted by the pensioner under clause (a).
(4) Where the authority competent to pass an order under
sub-rule (1) is the Governor, the State Public Service
Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-rule (1); passed
by any authority other than the Governor, shall lie to the
Governor and the Governor shall in consultation with the State
Public Service Commission pass such order on the appeal as he
deems fit.
Explanation. – In this rule,-
(a)the expression “serious crime” includes a crime
involving an offence under the Official Secrets Act 1923 (No. 19
of 1923);
(b)the expression “grave misconduct” includes the
communication or disclosure of any secret official code or pass
word or any sketch, plan, model, article, note, document or
information such as is mentioned in Section 5 of the Official
Secrets Act, while holding office under the government so as to
prejudicially affect the interests of the general public, or the
security of the country.
[Note- The Provisions of this rule shall also be applicable
to family pension payable under Rules 47 and 48. The authority
competent to make an appointment to the post held by the
deceased Government servant/ pensioner immediately before the
death or retirement from the service, as the case may be, shall be
the competent authority to withhold or withdraw any part of
family pension.]
9. Right of Governor to withhold or withdraw pension.
(1)The Governor reserves to himself the right of withholding or
withdrawing a pension or part thereof, whether permanently or
for a specified period, and of ordering recovery from pension of
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the whole or part of any pecuniary loss caused to the
Government if, in any departmental or judicial proceeding, the
pensioner is found guilty of grave misconduct or negligence
during the period of his service, including service rendered upon
re-employment after retirement:
Provided that the State Public Service Commission shall
be consulted before any final orders are passed :
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)(a) The departmental proceedings [xxx] [Omitted by
Notification No. FB-25-31-95-PWC-IV, dated 22-12-1995 (w.e.f.
26-1-1996).], if instituted while the Government servant was in
service whether before his retirement or during his re-
employment, shall, after the final retirement of the Government
servant, be deemed to be proceedings under this rule and shall
be continued and concluded by the authority by which they were
commenced, in the same manner as if the Government servant
had continued in service :
Provided that where the departmental proceedings are
instituted by an authority subordinate to the Governor, that
authority shall submit a report regarding its findings to the
Governor.
(b)The departmental proceedings, if not instituted while
the Government servant was in service whether before his
retirement or during his re-employment :-
(i) shall not be instituted save with the sanction of the
Governor;
(ii)shall not be in respect of any event which took place
more than four years before such institution; and(iii)[
shall be conducted by such authority and in such place
as the Government may direct and in accordance with
the procedure applicable to departmental
proceedings:
(a)in which an order of dismissal from service
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servant during his service in case it is proposed
to withhold or withdraw a pension or part
thereof whether permanently or for a specified
period; or
(b)in which an order of recovery from his pay of the
whole or part of any pecuniary loss caused by
him to the Government by negligence or breach
of orders could be made in relation to the
Government servant during his service if it is
proposed to order recovery from his pension of
the whole or part of any pecuniary loss caused
to the Government].
(3) No judicial proceeding, if not instituted while
the Government servant was in service, whether before his
retirement or during his re-employment, shall be instituted
in respect of a cause of action which arose or in respect of
an event which took place, more than four years before
such institution.
(4)In the case of a Government servant who has
retired on attaining the age of superannuation or
otherwise and against whom any departmental or judicial
proceedings are instituted or where departmental
proceedings are continued under sub-rule (2), a
provisional pension and death-cum-retirement gratuity as
provided in [Rule 64] [Substituted by Notification No. B-
6-1-77-PWC-IV, dated 26-8-1996 (w.e.f. 1-2-1977).], as
the case may be, shall be sanctioned :
[Provided that where pension has already been
finally sanctioned to a Government servant prior to
institution of departmental proceedings, the Governor
may, by order in writing, withhold, with effect from the
date of institution of such departmental proceedings fifty
per cent of the pension so sanctioned subject however that
the pension payable after such withholding is not reduced
to less than [the minimum pension as determined by the
Government from time to time] :
Provided further that where departmental
proceedings have been instituted prior to the 25th
October, 1978, the first proviso shall have effect as it forSignature Not Verified
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the words “with effect from the date of institution of such
proceedings” the words “with effect from a date not later
than thirty days from the date aforementioned,” had been
substituted :
Provided also that-
(a)If the departmental proceedings are not
completed within a period of one year from the
date of institution thereof, fifty per cent of the
pension withheld shall stand restored on the
expiration of the aforesaid period of one year;
(b)If the departmental proceedings are not
completed within a period of two years from the
date of institution the entire amount of pension
so withheld shall stand restored on the
expiration of the aforesaid period of two years;
and
(c) If in the departmental proceedings final order is
passed to withhold or withdraw the pension or
any recovery is ordered, the order shall be
deemed to take effect from the date of the
institution of departmental proceedings and the
amount, of pension since withheld shall be
adjusted in terms of the final order subject to the
limit specified in sub-rule (5) of Rule 43].
(5)Where the Government decides not to withhold or
withdraw pension but orders recovery of pecuniary loss
from pension, the recovery shall not be made at a rate
exceeding one-third of the pension admissible on the date
of retirement of a Government servant.
(6)For the purpose of this rule-
(a) departmental proceedings shall be deemed to
be instituted on the date on which the statement
of charges is issued to the Government servant
or pensioner, or if the Government servant has
been placed under suspension from an earlier
date, on such date; andSignature Not Verified
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(b)judicial proceedings shall be deemed to be
instituted-
(i)in the case of criminal proceedings, on the
date on which the complaint or report of a
police officer, of which the Magistrate
takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date
the plaint is presented in the Court.
11. As per Rule 8, pension is subject to future good conduct and for
withdrawal of pension under Rule-8, the pension sanctioning authority is
competent in case where there is conviction of pensioner for a serious
crime in a criminal case or having been found guilty of grave misconduct.
There is no requirement in Rule 8 that the order should be passed by the
Governor. However, Rule 9 of the Pension Rules provides that the
Governor has the right to withhold or withdraw pension and the impugned
order Annexure P-16 has been passed by relying on Rule 8 as well as Rule
9 of M.P. Civil Services (Pension) Rules and therefore, it has been argued
that since Rule 9 has also been pressed into service by the State, therefore,
the order should have been passed by the Governor himself.
12. The powers conferred on the Governor under various service rules
framed under Article 309 of Constitution of India have been considered in
detail by the Full Bench of this Court in the case of State of M.P. v. P.N.
Raikwar reported in ILR 2018 MP 2696 (FB) in which case the Full
Bench of this Court has considered the judgment of the Supreme Court in
the case of Brajendra Singh Yambem (supra) in detail so also the earlier
judgments on the point and after considering the entire law on the subject,
the Full Bench has held that in the case of Brajendra Singh Yambem
(supra) the earlier judgment of 7 Judges Bench of the Supreme Court in
the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 so also
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the three judges Bench judgment of Supreme Court in the case of Union of
India v. Sripati Ranjan Biswas, (1975) 4 SCC 699 was not brought to the
attention of the Supreme Court.
13. The Full Bench considered the judgment of 7 judges bench in
Samsher Singh (supra) which reads as under:-
“31. Further the Rules of Business and allocation of Business
among the Ministers are relatable to the provisions contained in
Article 53 in the case of the President and Article 154 in the case
of the Governor, that the executive power shall be exercised by
the President or the Governor directly or through the officers
subordinate. The provisions contained in Article 74 in the case of
the President and Article 163 in the case of the Governor that
there shall be a Council of Ministers to aid and advise the
President or the Governor, as the case may be, are sources of the
Rules of Business. These provisions are for the discharge of the
executive powers and functions of the Government in the name of
the President or the Governor. Where functions entrusted to a
Minister are performed by an official employed in the Minister’s
department there is in law no delegation because constitutionally
the act or decision of the official is that of the Minister. The
official is merely the machinery for the discharge of the functions
entrusted to a Minister (see Halsbury’s Laws of England 4th Ed.,
Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works
Commissioners [(1943) 2 All ER 560] ).
44. The distinction made by this Court between the executive
functions of the Union and the executive functions of the
President does not lead to any conclusion that the President is
not the constitutional head of Government. Article 74(1)
provides for the Council of Ministers to aid and advise the
President in the exercise of his functions. Article 163(1) makes
similar provision for a Council of Ministers to aid and advise the
Governor. Therefore, whether the functions exercised by the
President are functions of the Union or the functions of the
President they have equally to be exercised with the aid and
advice of the Council of Ministers, and the same is true of the
functions of the Governor except those which he has to exercise
in his discretion.
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45. In Sardari Lal case an order was made by the President
under sub-clause (c) to clause (2) of Article 311 of the
Constitution. The order was:
“The President is satisfied that you are unfit to be retained in the
public service and ought to be dismissed from service. The
President is further satisfied under sub-clause (c) of proviso to
clause (2) of Article 311 of the Constitution that in the interest of
the security of the State it is not expedient to hold an inquiry.”
The order was challenged on the ground that the order was
signed by the Joint Secretary and was an order in the name of
the President of India and that the Joint Secretary could not
exercise the authority on behalf of the President.
47. The decision in Sardari Lal case that the President has to be
satisfied personally in exercise of executive power or function
and that the functions of the President cannot be delegated is
with respect not the correct statement of law and is against the
established and uniform view of this Court as embodied in
several decisions to which reference has already been made.
These decisions are from the year 1955 up to the year 1971.
These decisions are Rai Saheb Ram Jawaya Kapur v. State of
Punjab, A. Sanjeevi Naidu v. State of Madras, and U.N.R.
Rao v. Smt Indira Gandhi. These decisions were neither referred
to nor considered in Sardari Lal case.
48. The President as well as the Governor is the constitutional or
formal head. The President as well as the Governor exercises his
powers and functions conferred on him by or under the
Constitution on the aid and advice of his Council of Ministers,
save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. Wherever
the Constitution requires the satisfaction of the President or the
Governor for the exercise by the President or the Governor of
any power or function, the satisfaction required by the
Constitution is not the personal satisfaction of the President or
Governor but the satisfaction of the President or Governor in the
constitutional sense in the Cabinet system of Government, that
is, satisfaction of his Council of Ministers on whose aid and
advice the President or the Governor generally exercises all his
powers and functions. The decision of any Minister or officer
under Rules of Business made under any of these two Articles
77(3) and 166(3) is the decision of the President or the Governor
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respectively. These articles did not provide for any delegation.
Therefore, the decision of a Minister or officer under the Rules of
Business is the decision of the President or the Governor.
53. The majority view in Babu Ram Upadhya case is no longer
good law after the decision in Moti Ram Deka case. The theory
that only the President or the Governor is personally to exercise
the pleasure or dismissing or removing a public servant is
repelled by express words in Article 311 that no person who is a
member of the civil service or holds a civil post under the Union
or a State shall be dismissed or removed by authority
subordinate to that by which he was appointed. The words
“dismissed or removed by an authority subordinate to that by
which he was appointed” indicate that the pleasure of the
President or the Governor is exercised by such officers on whom
the President or the Governor confers or delegates power.
57. For the foregoing reasons we hold that the President or the
Governor acts on the aid and advice of the Council of Ministers
with the Prime Minister at the head in the case of the Union and
the Chief Minister at the head in the case of State in all matters
which vests in the Executive whether those functions are
executive or legislative in character. Neither the President nor
the Governor is to exercise the executive functions personally.
The present appeals concern the appointment of persons other
than District Judges to the Judicial Services of the State which is
to be made by the Governor as contemplated in Article 234 of
the Constitution after consultation with the State Public Service
Commission and the High Court. Appointment or dismissal or
removal of persons belonging to the Judicial Service of the State
is not a personal function but is an executive function of the
Governor exercised in accordance with the rules in that behalf
under the Constitution.
14. The Full Bench held that in such Rules framed under Article 309 of
the Constitution of India the powers conferred on the Governor is not to be
exercised by the Governor personally but by the Council of Ministers or the
Ministers or a competent authority as per the rules of Business. The said
case before the Full Bench was in relation to the Governor being named as
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an appellate authority under the M.P. Civil Services (Classification, Control
and Appeal) Rules, 1966.
15. Considering Para-48 of the judgment in the case of Samsher Singh
(supra), the Full Bench considered the conclusions of a Constitution Bench
in case of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal
Pradesh Legislative Assembly, (2016) 8 SCC 1 wherein the Constitution
Bench held as under:-
155. We may, therefore, summarise our conclusions as under:
155.1. Firstly, the measure of discretionary power of the
Governor, is limited to the scope postulated therefor, under
Article 163(1).
155.2. Secondly, under Article 163(1) the discretionary power of
the Governor extends to situations, wherein a constitutional
provision expressly requires the Governor to act in his own
discretion.
155.3. Thirdly, the Governor can additionally discharge
functions in his own discretion, where such intent emerges from a
legitimate interpretation of the provision concerned, and the
same cannot be construed otherwise.
155.4. Fourthly, in situations where this Court has declared that
the Governor should exercise the particular function at his own
and without any aid or advice because of the impermissibility of
the other alternative, by reason of conflict of interest.
155.5. Fifthly, the submission advanced on behalf of the
respondents, that the exercise of discretion under Article 163(2)
is final and beyond the scope of judicial review cannot be
accepted. Firstly, because we have rejected the submission
advanced by the respondents, that the scope and extent of
discretion vested with the Governor has to be ascertained from
Article 163(2), on the basis whereof the submission was
canvassed. And secondly, any discretion exercised beyond the
Governor’s jurisdictional authority, would certainly be subject to
judicial review.
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155.6. Sixthly, in view of the conclusion drawn at fifthly above
[para 155.5], the judgments rendered in Mahabir Prasad
Sharma case [Mahabir Prasad Sharma v. Prafulla Chandra
Ghose, (1968) 72 CWN 328 : 1968 SCC OnLine Cal 3] ,
and Pratapsingh Raojirao Rane case [Pratapsingh Raojirao
Rane v. Governor of Goa, AIR 1999 Bom 53 : 1998 SCC OnLine
Bom 351] , by the High Courts of Calcutta and Bombay,
respectively, do not lay down the correct legal position. The
constitutional position declared therein, with reference to Article
163(2), is accordingly hereby set aside.
16. Considering the entire law on the subject, the Full Bench in P.N.
Raikwar (supra) in concluding Para 23 held as under:-
“23. In view of the above, we find that no appeal shall lie to the
Governor if an order is passed by him personally in terms of
Rule 22 Clause (i) of the Service Rules, but since the order of
punishment has not been passed by the Governor personally but
has been passed in the name of the Governor, therefore, an
appeal would lie under Rule 23 of the Service Rules. The
appellate authority shall be Governor in terms of Rule
24(1)(i)(b) of the Service Rules, but again it is not the power to
be exercised by the Governor personally, but in terms of Rule of
Business by the ‘Council of Ministers’ or the ‘Minister’ as may
be warranted in the Rule of Business.”
The same view has been taken by a Division Bench of this court recently in
WA 2061/2019 (Indore), decided on 15.6.2023.
17. In view of aforesaid, the argument of the petitioner that the order
stopping pension of the petitioner was to be passed personally by the
Governor and could not be passed by the Council of Ministers or any other
authority competent as per Rules of Executive Business of Government,
cannot be countenanced.
18. Consequently, the petition being devoid of merits and substance
stands dismissed. However, liberty is reserved to the petitioner to renew the
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prayer in case he is acquitted in appeal which is pending before this Court
against his conviction.
(VIVEK JAIN)
nks JUDGE
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