Bt ^ei<^t y IN THE HIGH COURT QF IUDLCATURE AT BILASPUR CHHAmSGARH PETITIONER RESPONDENTS W.f.NO. _2-'4-60 J2005 : /' EamadIlarSmghS/aRaghuraj-Singhlltakur, Aged about 73 years, R/o. Village Navagarh, Distt Durg (CG.) VERSUS 1] SfateofCMtattisgarh, Through;- Secretary, Revenue Deptt D.K.S. Bhawan, RaipUT(C.Gj ^ 2] CoUeGfor,Durg, Distt. Diu-g (C.G.) :^/" ^%^»'2' •? ^-^'^^^^'^_, 3} BistrictTKiasuiyQfficer,I>urg, >-:^$^ p^"r'^ Distt-Durs<c.^ -<y S.D.O. (Eeyenue), Benietara, Distt.Durg (C.G.) Senior Accoanloffiicei) s AcGountaHtGenerat Office, Raipin-, Distt. Raipw (C.G.) 'WKTI PETITION CNDER AB31CLE 326/2210f THE CONSTFTOTIOMOF INDIA 1] PARTIGULARSOPTHEPETITIONER (S): As stated above intfae cause title. 2] PARTICUIARS OFTHE RESPONDENT (S): As sfated abovein the cause titie. 31 PARTICULARS O^THE^>RDEK (St AGAINST WHICHTHIS PErmON I&MADE. 07.09.2000 F-tO/KM/ZBOO/Seven-5/2000 Secretary (Revenue Depai'tmenli) Order dated QrderNo. Passed by SUBTECT R'lATTBRiNBRIEF ;ThepetitK)nerretiredc®30.11.1996, andafte^ a craffltii^ prcx^ding, in respectof the offenceptm^ ;-.41'-.'l.^i':!i3SBS;' the^preyention of Gorrupfion A<A, •»vas inifiated •aiui Bifi •G}ial'gg||gjjj sfaeetwas fifed against (ttepetifioiier. B is Tefevaaitio -'sffSSSSS: y c>r-i^L « IN THE mGH GOURT 01 CHHA; PETFTIONER W.F^NO^J : f Rama(j Aged| Distti RBSPONDENTS ^ 1] ^ ..^f ,^^ ^^. • ^ G^ ^?^: ^.5^>" ^'^e^tp1 y.^ ^^•c WRrr FETjnoN co^ State of Madhycs Pradesh Thmugh-.Secretcay, ReyenueDepartment, VatlabhBhawan>.Bhopal,MaclhYaPradesh. 1] 2] 31 PARTICULARSOI As stated above in t 1 PARJiCULAJRSQ As stated above m,' PARTICULARS ( pEnnoNisAU Orderdatied QrderNo. : ) Passed by ; SI 'Thepettf a cnmuiat proi the preventioa sheet wasfileci HIGH COURT OF CHHMTISGARH AT BILASPUR WRIT PETITIONN0.2480of2005 A^ •tv Petitioner Respondent Versus Ramadhar Singh State of Chhattisgarh & others ix tl WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF . INDIA (SB : Hon'ble Mr. Satish K. Agnihotri, J.) Present:- Shri Manoj Paranjpe, Advocate for the pefitioner. Shri M.P.S.Bhatia, Dy. Government Advocate.for the State. Shri Malay Shrivastava, Advocate for respondent No. 6. ORDER (ORAL) (Passed on 20th DayofApril, 2010) Challenge in this petition is to the order dated 07/09/2000 (Annexure P/5) passed by the Government of Madhya Pradesh whereby the State Government by exercising its power under Rule 9 (1) of the Madhya Pradesh/Chhattisgarh Civil Services (Pension) Rules, 1976 (for short "the Rules 1976") withheld the full pension ofthe petitioner permanently on the ground that the petitioner was convicted for commission of an offence punishable under Sections 7, 13 (1) (d) (i) and 13 (2) of the Preventionof Corruption Act , 1988 (forshort "the Act, 1988") and was sentenced to undergo rigorous [Fnprisonmentfor 6 months and 1 year, respectively. The facts, in nutshell, are that the petitioner while working as Patwari, was caught red handed while receiving some bribe. Thereafter, a criminal case was registered and the petitioner was convicfed by judgment and order dated 14.09.1998 passed bytheSpecialJudge, Durg, in special case No.2/93 for Gommission of offence and sentenced to undergo rigorous imprisonment for one and half year with fine. Thereagainst, a criminal appeal was preferred | by the petitioner being Cr.A.No.2210 of 1998, which is still pendihg -, consideration before this Court. *• 4. 5. According to Shri Paranjpe, leamed counsel appearing for the petitioner, the sentence imposed on the petitioner has been suspended by the High Courton 30.09.1998. Shri Paranjpe, further submits that the authorities, before withholding full pension, have not taken recourse to statutory procedure as prescribed under Rule 8 of the Rules, 1976. The petitioneroughttohavebeengiven opportunity of hearing to put forward hiscase. Secondly, after conviction, the petitionercontinuously received the pension fora period oftwo years and thereafter by the impugned order all of a sudden the same has been withheld. On the other hand, Shri Bhatia, leaned counsel appearing for the State, submits that under Rule 9 of the Rules, 1976 the State Government is fully empowered to withhold the full pension of the petitioner having regard to the fact that the petitionerwas caughf red ' . ' handed while receiving bribe and thereafterhe was c&nvicted bythe Court of law. Therefore, the question of issuance of notice before passing the impugned order does not arise at all. Thus, the impugned order passed in exercise of powers cbnferred under Rule 9 oftheRules, 1976, isjust, proper and warrants no interference. In support of his contention, Shri Paranjpe placed his relies upon the decision of the Supreme Court rendered in State ofU.P. andotflers v. Jawahar Lal Bhatia wherein in any departmental proceeding, the employee was found guilty of charges and looking at the serious nature of charges leveled against the employee, it was held that withholding of pension of the employee to the extent of 75 % is excessive. 1 2005 AIRSC3W 892 7. t*!' * 3 The facts of the case on hand are entirely different. In this case, petitioner was found guilty of receiving bribe while performing his duty and as such it was serious nature of crime for a Government employee. Rule 8and Rule 9 (1) ofthe Rules, 1976 reads as under: "8. Pension subjectto future good Gonduct. - (1) (a) Future good conduGt shall be an implied condition for 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 petitioner 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 fo theauthority competent at the time of retirement of the pensioner, to make an appointment to the postheld 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 thelight ofthejudgment ofthe Court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to ihsub-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 notjce specifying the action proposed to betaken 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 of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposaj; and (b) takeinto consideratiQn the representation, if any, submitted by the pensioner under clause (a). (4) xxx xxx xxx (5) xxx xxx xxx 1 Ui.-.il 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 .^^^fc'^iSt^ /e^ (i •ikssea lis. '& ~»J ^^ ^-^" i'n ;*• ^ 8. 9. thereof, whether permanently or foraspecified period, and of ordering recovery from pension of the whole or part of any pecuniary losscausedto the Government if, in any departmerital or judicial proceeding, the pensioner is found guilty of grave misGonduct 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 beforeany final orders are passed: Provided furtherthatwhereapartofpension is withheld or withdrawn, the amount of such 'pension shall not be redUGed below the minimum pension as determined bythe Governmentfromtimetotime. XXX XXX XXX XXX XXX xxx' Rule 8 of the Rules, 1976 provides for grant of pension and its continuancesubjectto future good conduct. Rule 8(1)(b) provides for passing an order in writing for withholding or withdrawing pension or a part thereof permanently or for a specified period if the petitioner is convicted of a serious crime or is found guilty ofgrave miseonduct, not by a courtoflaw. Sub-rule (2) of Rule 8 ofthe Rules, 1976 does not provide for passing an order in writing wherein an employee has been convicted of a serious crime by a courtoflaw underclause (b) of sub-rule (1) of Rule 8 of the Rules,1976. Clause (a) and (b) of sub-rule (3) of Rule 8 of the Rules, 1976 provides for issue of a notice and consideration of the representation, if any filed by the employee. It is a case not under the provisions'of sub-rule (1) of RuleS of the Rules, 1976 but underthe provisions of sub-rule (2) of Rule 8 ofthe Rules, 1976 wherein there is no contemplation of any notice specifying action proposed to be taken or further consideration ofthe representation, if any submitted by the pensioner before passing an order of withholding of the pension and as sufeh, in (he case oh hand, no notice was required as the petitioner has been found guilty of accepting bribe and convicted thereon forthe offences punishable ^•,. :2»: /f.'ys~'v9t "^ l^i. "f; -V under section 7, 13 (1) (d) (i) and 13 (2) of the Act , 1988 and sentenced to undergo imprisonment for six months and oneyear, respectively, with fine, by a court of law. 10. Rule 9 of the Rules 1976 confers power and right to the Governor for withholding or withdrawing pension permanently or fbr a specified period. The question asto whether the Governor means Govemor himself or Government in exercise of its power in (he name of and by order of Governor under Article 166(3) of the Constitution of India, the issue has already been settled by theSupreme Court in State of M.P.and Others v. Dr. Yashwant Trimbak^, wherein it has been held that the power to sanction under the provisions of Pension Rules is nothing but an executive action of the Government provided under the rules. The Governor is not required under fhe constitution to act in his discretion in this view ofthe matter when the Governor has framed Rules of Business underArticle 166(3) ofthe Constitution allocating his functions to the concerned ministers. 11. The Supreme Court, in S(afe of M.P. and Others v. Dr. Yashwant Trimbak (supra),observed as under: 14. The Rule in question no doubt provides that departmental proceedings if not instituted while the governmentservant was in service whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the Governor. The question that arises for consideration is whether it requires the sanction of the Governor himself or the Councilof Ministers in whose -» favour the GoveTnor under the Rules of Business has allocated the matter, can also sanction. It is undisputed that underArticle 166(3) of the Constitution the Governor has made rule for convenient transaction of the business of the Government and the question of sanction to proseciite in the case inhand was dealt with bythe Council ofMinisters in accordancewith the Rules of (1996)2 SCC 305 ,>?..''-"-'% ^ // :;'" ^ '\.\ \ "'r^^.... 1 ^ ', . '~^^^^. ' ^ •A ^ ,'..- "^i, 'f .6 • Business. Under Article 154 of the Constitution, the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The expression "executive power" is wide enough to connote the residue of the governmental function that remains after the legislative and judicial functions are taken away. 17. The order of sancfion for prosecutiori of a retired government servant is undoubtedly an executive action of the Government.A Governor in exercise of his powers underArtiele 166(3) . of the Constitution may allocate allhis functions to different Ministers by framing rules of business except those in which the Governor is required by the Constitution to exercise his own discrgtion. The expression "business of the Government of the State" in Article 166(3) of the Constitution, comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers including those which he is empowered to exereise on his subjective satisfaction and including statutory functidns of the State Government. The Court has held in Godavari Shamrao Parulekar v. State of Maharashtra that even the fuhctions and duties which are vested in a State Government by astatute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution. In State of Bihar v. Rani Sonabati Kumari, where power of issuing notification under Section 3(1) of the Bihar Land Reforms Act, 1950 have been conferred on the Governor of Bihar, this Courtheld: 'Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Article 166(3) of the Constitution.' s.-' 18. Therefore, excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocatedto Ministers. i 19. Mr Jain's contention is solely based on the ground that in the Rule itself bdth the expressions 'Governor' and 'Government' have been used and therefore the expression "sanction of the Governor" in ^v^s~% \:\ .^ •^. 12. 13. Arun Rule 9 (2) (b) (i) would mean the persorial sanction of the Governor. We are unable to accept this contention. The power to sanction is nothing butan executive aGtion of the GQVernment provided under the Rules. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion. In this view of the matter when the Governor has framed Rules of Business under Article 166(3) of the Cdnstitution allocating his functions and it is the Council of Ministers which has taken the decision to sanction prosecution of the respondent, we see no legal infirmity in the same. The Tribunal erred in law in coming to the conclusion that the sanction required under the rule is a sanction ofthe Governor." After applying the well settled principles of law to the facts of the case, it is apparent that the jmpugned order dated 07.09.2000 (Annexure P/5) was passed on Gonviction ofthe petitioner by the Court of law, in exercise of powerunder sub-rule (2) of Rule 8 read with Rule 9 (1) ofthe Rules, 1976. Thus, there is no error in law or otherwise. For the reasons stated hereinabove, the writpetilioh fails and.is hereby dismissed. No orderastoeosts. ———^^~ Sd/- '• , SatishK.Agnihotri Judge