Ramadhar Singh vs State of Chhattisgarh

Sunil Kumar Sinha, J.

The appellant/petitioner was working as a Patwari. In a bribe case, he was convicted for commission of the offences punishable under Sections 7, 13(1)(d)(i) read with Section 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to undergo RI for 6 months and RI for 1 year respectively with fine sentences under each count with a further direction to run the sentences concurrently. The judgment and order was passed on 14-9-1998 by the Special Judge, Durg in Special Case No. 2/93. There against, a criminal appeal was preferred by him bearing Cr. A. No. 2210/1998, which is pending for consideration before the High Court. This judgment of conviction was passed after his superannuation on 30-11-1992. After the superannuation, the appellant was getting regular pension. However, on 7-9-2000, the State Government of Madhya Pradesh, exercising its power under Rule 9(1) of the M.P./C.G. Civil Services (Pension) Rules, 1976 (hereinafter referred to as "the Rules, 1976") issued an order (Annexure P-5 in the writ petition) withholding the entire pension of the appellant. The said order was challenged by the appellant by filing W.P. No. 2480/2005. It was contended before the Writ Court that no opportunity of hearing or to show cause was issued to the appellant before passing the said order, therefore, the order was in gross violation of principles of natural justice. The Writ Court held that the said order was passed on conviction of the appellant by the Court of law under sub-rule (2) of Rule 8 of the Rules, 1976, wherein there is no contemplation of any notice specifying action proposed to be taken or further consideration of the representation and the Government exercising power under sub-rule (2) of Rule 8 read with Rule 9(1) of the Rules, 1976 has not erred in passing the said order. The Writ Court, therefore, dismissed the writ petition. Hence, this appeal. Mr. Manoj Paranjpe, learned Counsel appearing on behalf of the appellant/petitioner, has mainly contended that the pension was not a bounty; the appellant had vested right to get his pension; withholding the entire pension, even without giving a show-cause or an opportunity of being heard was improper and unjustified; the Public Service Commission (PSC) was not consulted before passing the order; therefore, the Writ Court ought to have quashed the impugned order dated 7-9-2000 (Annexure P-5) passed by the State Government in the above manner. He cited the decisions of State of Punjab Vs. K.R. Erry and Sobhag Rai Mehta, and State of Punjab and Another Vs. Iqbal Singh, .

On the other hand, Mr. A.S. Kachhawaha, learned Dy. Advocate General appearing on behalf of the State, has mainly contended that the said order was passed in exercise of the powers conferred under Rule 9(1) of the Rules, 1976, which does not provide for giving opportunity of hearing to the concerned employee before withholding his entire pension or any part thereof. Thus, the Writ Court has rightly held that it will make no difference if an opportunity of hearing was not granted to the appellant/petitioner.

We have heard Counsel for the parties.

To decide the controversy raised before us, it would be appropriate to quote the relevant provisions of the Rules 8 and 9(1) of the Rules, 1976:--

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 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 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 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) *** *** ***

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 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 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.

The learned Single Judge has held that the impugned order was passed in exercise of the powers conferred under sub-rule (2) of Rule 8 of the Rules, 1976. Sub-rule (2) provides that 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. This shows that in case of such conviction, the concerned authority would resort to the provisions of clause (b) of sub-rule (1), which provides that the Pension Sanctioning Authority may, by order in writing, withhold or withdraw 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. Rule 9 talks about the right of Governor to withhold or withdraw pension or part thereof whether permanently or for a specified period.

The words like "in the light of the judgment of the Court relating to such conviction" used in sub-rule (2) of Rule 8 makes it clear that while taking any decision under clause (b) of sub-rule (1), the Sanctioning Authority shall firstly follow the directions or observations, if any, contained in the judgment and if there is nothing like that and the judgment simplicitor records the conviction of the pensioner and imposes punishment for the offences held proved against him, then the authority would independently take a decision in the matter keeping in mind the provisions of sub-rule (1)(b) of Rule 8. Clause (b) of sub-rule (1) would further make it clear that if the judgment of the Criminal Court is silent and there are no directions or observations relating to the further consequences of the judgment, it would be the discretion of the Sanctioning Authority to withhold or not to withhold the pension, because clause (b) uses the word "may" which is held in all soundness of construction to confer, a power and not that to make that power, or exercise of that power compulsorily (Vide: Principles of Statutory Interpretation by Justice G.P. Singh, Sixth Edition 1996, p. 261).

It was argued by the State Counsel that there is no express provision for issuance of show-cause to the pensioner or to consider his representation in Rule 8 and the show-cause and opportunity of hearing etc. is to be provided in the cases of withholding or reduction, which are not falling under sub-rule (2). In fact, he based his argument on the provisions of sub-rule (3) of Rule 8, which provides for hearing in a case not falling under sub-rule (2).

It is true that no express provisions are there either in Rule 8 or Rule 9 to issue a show-cause or to give an opportunity of hearing after the conviction of the pensioner whose case is to be dealt with under sub-rule (2) of Rule 8 or Rule 9, but for coming to a conclusion in this regard various provisions of these Rules are to be looked into.

We have already stated that in case of no directions from the Criminal Court, it would be the discretion of the authority to proceed or not to proceed as per clause (b) of sub-rule (1). We may further note that under clause (b), the authority concerned has a discretion to withhold or withdraw the whole pension or part thereof whether permanently or for a specified period. Almost similar provision is there under Rule 9 when the Governor withholds or withdraws a pension or a part thereof which may be permanently or for specified period. Thus, the Rules particularly sub-rule (2) of Rule 8 never ensures a mandatory result after conviction in a criminal case and discretion is with the concerned authority under Rule 8 and Rule 9 to take a decision, which may befitting in the prevailing facts and circumstances of a particular case. How an authority can take into consideration the entire facts and circumstances of the case unless they are brought to his knowledge by the concerned person, who is ultimately going to be affected by his order. Who will bring to the knowledge of the authority the prevailing circumstances on which the withholding or withdrawing of full pension would be justified or some part thereof? It would be permanently or temporarily or for specified period etc. etc.?

In K.R. Erry (supra), it was observed in Para. 20 as under:--

The question for our consideration now is whether the orders imposing a cut in the pension should be set aside for the reason that the officers were not given reasonable opportunity to show cause. The law on the point is not in doubt. Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See: Province of Bombay Vs. Kusaldas S. Advani and Others, and Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, . With the proliferation of administrative decisions in the welfare State it is now further recognised by Courts both in England and in this country (especially after the decision of House of Lords in 1964 AC 40), that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects individual rights or interests and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See: State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, and In re H.K. (An Infant), (1967) 2 QBD 617. In the former case, it was observed at Page 628 as follows:--

An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority, which is sought to be relied upon to his prejudice. For that purpose, the persons against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to Judicial Tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of Arbitrary Authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

These observations were made with reference to an authority which could be described as characteristically administrative. At page 630, it was observed:--

It is true that the order is administrative in character, but even an administrative order, which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence.

Further in Iqbal Singh (supra), referring to the decision of K.R. Erry (supra), it was held that though an order imposing cut in pension and gratuity, under Rule 6.4 is not one of reduction in rank falling within the purview of Art. 311(2) of the Constitution, yet there can be no doubt that it adversely affected the civil servant and such an order could not have been passed without giving him a reasonable opportunity of making his defence.

In Dagdulal Sharma Vs. Union of India (UOI) and Others, , the matter was relating to Central Civil Services (Pension) Rules, 1972. Here also the petitioner was convicted u/s 376, I.P.C. on which his pension was withheld by the concerned authority without affording any opportunity of hearing to him. The High Court, referring to the decisions of K.R. Erry and Iqbal Singh (supra), held that the State Government cannot withhold the pension by an executive order and such an order cannot be passed without giving a reasonable opportunity of hearing and the order issued to the petitioner withholding his pension was not in consonance of Rule 8(1)(b) and (2) (which Rules are in pari materia with Rules, 1976) and was also violative of the principles of natural justice.

In the instant case, as we have already stated, the entire pension of the appellant has been withheld, which has affected right and interest of the appellant. Even if it was an administrative order, as has been contended by the State Counsel, as held in K.R. Erry (supra), it was not fair for the authority not to have allowed a reasonable opportunity of being heard to the appellant.

That apart, the authority had a discretion under the Rules to permanently withhold or withdraw the pension or part thereof or to make an order for specified period and the decision was not mandatory. Thus, a variation in the order was possible and in such situation, application of mind was required before reaching to a final decision as to which kind of order would be befitting, which cannot be arrived at without hearing the grievances of the pensioner who may take an appropriate defence for not passing such an order or praying for passing an order, which may be less harmful to him. We are of the view that in the above facts and circumstances of the case, particularly in the light of the provisions of Rule 8(1) and (2) and Rule 9(1), the concerned authority was required to give an opportunity of hearing to the appellant/petitioner before, passing the impugned order dated 7-9-2000 (Annexure P-5). Thus, the impugned order was passed in violation of principles of natural justice, which cannot be sustained.

So far as the argument relating to non-consultation of the Public Service Commission (PSC) is concerned, the same is totally misconceived. In this regard, Mr. Paranjpe has referred to sub-rule (4) of Rule 8 and proviso to Rule 9(1). These provisions provide that where the authority competent to pass an order under sub-rule (1) of Rule 8 of the Rules, 1976 is the Governor or the Governor is passing the order under Rule 9(1), the State Public Service Commission (PSC) shall be consulted before the order is passed.

Article 320 of the Constitution describes functions of Public Service Commissions. Article 320(3) provides for consultation from the Union Public Service Commission (UPSC) or the State Public Service Commission (PSC), as the case may be, on certain matters specified in sub-clauses (a) to (e) of Article 320(3). These sub-clauses also cover all matters relating to methods of recruitment to the civil services and for civil posts and all disciplinary matters affecting a person serving under the Central Government or the State Government in a civil capacity. Proviso to clause (3) of Article 320 gives power to the President as respects. All India Services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of the State, to make regulations specifying the matters in which either generally or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.

In exercise of the powers conferred by the proviso to clause (3) of Article 320 of the Constitution of India the Governor of Madhya Pradesh has made the Madhya Pradesh Public Service Commission (Limitation of Functions) Regulations, 1957. This has been adapted by the State of Chhattisgarh. Regulation 3 prescribes that it shall not be necessary for the Commission to be consulted in regard to the appointment by direct recruitment or by promotion or by transfer, to any of the posts or classes of posts or to any of the services to the extent specified in the Appendix to these Regulations. All Class III (Executive) posts, except the classes of posts specified below are included in Item No. 16 of the Appendix:

(i) Posts recruitment to which is required to be made by the Public Service Commission on the result of a competitive examination held by them as per rules or orders governing recruitment thereto.

(ii) Tehsildars.

(iii) Superintendent, Land Records.

According to M.P./C.G. Land Records Manual, Part I, appointment to the posts of Patwari is done by the Sub-Divisional Officer (SDO) and the said post in its classification is a Class III (Executive) post.

Therefore, it is clear that the post of Patwari is outside the purview of the Public Service Commission (PSC), and thus, the State Public Service Commission (PSC) was not required to be consulted in their matters relating to appointment etc. in terms of Article 320(3) of the Constitution.

We are of the view that as the post of Patwari was not within the purview of the State Public Service Commission (PSC), it was not necessary for the concerned authority to consult the PSC before passing the said order against the appellant/petitioner.

As we have held that the impugned order was passed in violation of principles of natural justice, the same has to be set aside on the said ground. We, therefore, allow the appeal and set aside the order passed by the Writ Court and we also set aside the impugned order dated 7-9-2000 (Annexure P-5 filed in the writ petition) passed by the concerned authority. As, a long time has elapsed after withholding the entire pension of the appellant and as stated at bar, the appellant is old and bed-ridden, we direct that the withheld pension be immediately released to him. However, we leave it to the authorities to take appropriate decision afresh, if so desired, in the prevailing facts and circumstances of the case in accordance with law. No order as to cost.