SBCWP NO.797/01. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.797/2001. Tahil Manghani Vs. State of Rajasthan & Ors. Date of order:- January 22, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Saxena for the petitioner. Shri Hemant Gupta, Deputy Government Counsel. **** Reportable BY THE COURT:- Shri Sandeep Saxena, learned counsel for the petitioner has raised a pointed argument that both, according to Rule 19 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, “Rules of 1958”) and Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996 (for short, “Rules of 1996”) it was mandatory for the respondents to consult the R.P.S.C. before passing the impugned order of withholding his pension. 2) Shri Sandeep Saxena, learned counsel for the petitioner has further argued that the respondents vide order dated 28/4/2001 have SBCWP NO.797/01. 2 completely stopped making payment of pension. Not only the respondents did not consult the R.P.S.C. but also not provided any opportunity of hearing to the petitioner prior to passing of the order withholding pension. It was argued that the offence for which petitioner was convicted is not very grave and that the charge against him was that he raised the bills of first class whereas he actually traveled by his personal car. It was argued that Secretary Technical Education is not competent to pass the aforesaid order and petitioner being a member of State Service, only Secretary, Department of Personnel, should pass such order. Petitioner was not paid any retiral benefits and all his retiral benefits have been withheld without any valid justification. It is argued that earlier, respondents stopped making payment of provisional pension vide order dated 12/12/2000 passed by the Special Secretary of the Technical Education Department which was subsequently affirmed by the Department of Personnel vide order 28/4/2001 stopping cent-percent pension of the petitioner. It is argued that the said order has not been issued in the name of the Governor. 3) Shri Sandeep Saxena, learned counsel for the petitioner has further argued that pension of the petitioner cannot be withheld because the order of conviction is subject-matter of challenge in the SBCWP NO.797/01. 3 criminal appeal in which, order awarding sentence by the trial court, has been suspended. 4) Shri Hemant Gupta, learned Deputy Government Counsel has argued that earlier order dated 12/12/2000 was passed only stopping provisional pension of the petitioner. In that order also, reference to the order passed by the Department of Personnel dated 2/12/2000 has been made. It was argued that the Department of Personnel vide its letter dated 7/9/2000 forwarded case of the petitioner for consultation of the RPSC for stoppage of pension and the RPSC vide its letter dated 14/2/2001 has agreed for stopping cent-percent pension of the petitioner. The appropriate order in this respect has been made under the authority of the Governor on 28/4/2001 by the Department of Personnel. Learned Government Counsel submitted that petitioner cannot be now granted commutation of pension. 5) Shri Hemant Gupta, learned Deputy Government Counsel has referred to the order passed by the Department of Personnel dated 28/4/2001 in support of his argument as referred to above and the additional affidavit to substantiate the same, which is on record. 6) I have given my anxious consideration to the aforesaid rival submissions of the parties and perused the material on record. SBCWP NO.797/01. 4 7) Three fold prayers of the petitioner in this writ petition are : (i) to quash and set-aside the order dated 12/12/2000 withholding provisional pension of the petitioner, (ii) to quash and set- aside the order dated 28/4/2001 withholding cent- percent pension of the petitioner and (iii) to direct the respondents to grant him full pension along with commutation thereof. 8) Rule 7 of the Rules of 1996 clearly provides that 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 a pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, 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 Rajasthan Public Service Commission shall be consulted before any final orders are passed. 9) Rule 19 of the Rules of 1958 also provides that (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to him conviction on a criminal charge; or (ii) where the disciplinary Authority is satisfied for reasons to be rerecorded in writing that it is not SBCWP NO.797/01. 5 reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as it may deems fit, provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary. 10) From the language of the aforesaid rules, it transpires that prior to passing the penalty order, consultation with the RPSC shall be necessary. The contention of the learned Additional Government Counsel is that they had in the first instance stopped making payment of provisional pension and simultaneously initiated process of consultation. But further argument is that subsequent order dated 28/4/2001 has been passed after consultation with the concerned R.P.S.C. and with the sanction of the Governor and sanction of the Governor should validate the earlier order dated 12/12/2000. This argument too, does not however found support from the language of Rule 7 of the Rules of 1996 which provides that 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 a SBCWP NO.797/01. 6 pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, 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 Rajasthan Public Service Commission shall be consulted before any final orders are passed. 11) Therefore, the fact is that petitioner was being paid provisional pension on account of pending criminal trial against him. When upon conclusion of the trial his conviction order passed, respondents could ofcourse withheld his pension or part thereof, under the authority of the Governor but that could be done only after the RPSC has been consulted. Such power thus was not available to be exercised in two stages, one for stoppage of provisional pension and other for permanent withholding of pension. 12) When the petitioner has been convicted, this Court is not entitled to go into the merits of the case to find out as to what was the gravity of the offence for which he was convicted. It is the order of conviction which formed foundation of the stoppage of the pension and the charge against the petitioner would be inconsequential for decision of the respondents to withhold payment of pension. For the same reason therefore, merely because order of sentence has been suspended, it would not result in SBCWP NO.797/01. 7 acquittal. If eventually, petitioner is acquitted, he may be entitled to claim pension which has been withheld by the respondents at least from the date appellate order is passed acquitting him. In the result, the writ petition is allowed in part. The order dated 12/12/2000 is quashed and set-aside. However, the order dated 28/4/2001 is held to be valid. (MOHAMMAD RAFIQ), J. anil SBCWP NO.797/01. 8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL MISC.IInd STAY APPLICATION NO.3209/2001. IN S.B. CIVIL WRIT PETITION NO.797/2001. Tahil Manghani Vs. State of Rajasthan & Ors. Date of order:- January 22, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Saxena for the applicant-petitioner. Shri Hemant Gupta, Deputy Government Counsel. **** BY THE COURT:- Consequent upon disposal of the writ petition, this stay application does not survive any further. Same is accordingly rejected. (MOHAMMAD RAFIQ), J. anil