Saroj Bawne vs State Of Madhya Pradesh & Ors

By this petition, the petitioner is seeking a direction against the respondents/authorities to grant and pay her family pension from the date of death of

her husband M.G.Bawne with an interest of 12% p.a.on account of delayed payment.

According to the petitioner, her late husband M.G.Bawne was working as an Executive Engineer (STM), Chhatarpur under the

respondents/authorities and retired on 30.04.1994 on attaining the age of superannuation. After the retirement, pension and other retiral benefits were

sanctioned vide order dated 26.02.1994 with effect from 01.05.1994 under the provisions of M.P.Civil Services  (Pension) Rules, 1976 (hereinafter

referred to as “the Rules of 1976â€​).

The petitioner's husband expired on 17.08.2015. After the death of her husband, the petitioner had approached the respondents/authorities requesting

for grant of family pension and also sent representations by registered post, but these representations did not generate any response.

Learned counsel appearing on behalf of the petitioner submits that the entire action of the respondents/authorities in withholding/non-grant of family

pension to the petitioner is illegal and arbitrary, thereby depriving the petitioner of her legitimate right.

Learned counsel appearing for the respondents have urged that the petition has been filed suppressing the true and correct facts and deserves to be

dismissed on this count alone. It is argued that petitioner's late husband M.G.Bawne was convicted in Special Case No.1/96 by Special Judge,

Ambikapur, Distt-Sarguja on 11.05.2001 for offence punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and

sentenced to R.I. For two years with further penalty of Rs.5,000/-. After his conviction, the Addl.Secretary of M.P.State Electricity Board as it was

then, vide order dated 12.12.2002 stopped the pension of petitioner's husband. Late M.G.Bawne preferred a writ petition no.36/2003 against the said

order dated 12.12.2002 which was disposed of vide order dated 18.09.2007 holding that in case Criminal Appeal No. 471/2001 preferred by

M.G.Bawne against the judgment of conviction is allowed and his conviction is set aside, he would be at liberty to seek for revival of his pension with

arrears. It is urged that pension of M.G.Bawne was never restarted and as no pension was payable to the retiree at the time of his death, the

petitioner as his widow is not entitled for family pension under Rule 47 of the Rules of 1976.

Heard learned counsel for the parties at length and perused the record.

Any claim to the pension/family pension is govered and regulated by the provisions of the rules in force at the time when a Government servant

retires. Rule 8 of the Rules of 1976 regulates the grant and continuation of pension subject to the future good conduct of the retiree. Rule 8 of the

Rules of 1976 reads thus :-

“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

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) 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.]â€​

A careful reading of the above provisions makes it clear that the future conduct of a pensioner decides the continuation or withholding/withdrawal of

his pension. Clause 8(1)(b) and 8(2) of the Rules of 1976 makes it clear that where a pensioner is convicted in a serious offence by a Court of law,

the pension sanctioning authority shall take action in the light of the judgment of the Court relating to such conviction and may withhold or withdraw a

pension or part thereof, whether permanently or for a specified period.

It is apparent from the judgment dated 11.05.2001 passed in Special Case No.1/96 (Annexure R/1) that M.G.Bawne was convicted under Sections

13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and sentenced to two years' R.I. And fine of Rs.5,000/-. It is also evident from

Annexure R/2 that thereafter vide Order dated 12.12.2002 his pension was stopped. It is evident from the record that the order withholding his full

pension was challenged by M.G.Bawne by way of filing writ petition no.36/2003 which was disposed of on 18.09.2007 and following order was

passed :-

“ The present petition has been filed by the petitioner challenging the order dated 12.12.2002 (Annexure P-9). By this order the respondents have

directed to withhold the full pension of the petitioner.

Petitioner was prosecuted for an offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988.

The order of conviction has been passed by the Special Judge, Ambikapur (Annexure P-5). After conviction the respondents have passed the

impugned order dated 12.12.2002 (Annexure P-9) whereby the full pension of the petitioner has been stopped.

Learned counsel for the petitioner submitted that the petitioner has already preferred an appeal against the order of his conviction and the said appeal

is registered as Criminal Appeal No.471/2001. The said appeal has also been admitted by the High Court of Chhattisgarh at Bilaspur on 31.5.2001 and

the sentence has been suspended.

The question in the present case is that even though the sentence has been suspended the effect of conviction continues to exist. The circular which

has been issued on 4.9.2001 by the respondents (Annexure R-1) also stipulates that after conviction of an incumbent the pension of an incumbent can

be permanently stopped.

Learned counsel for the petitioner submitted that in case the petitioner's appeal is allowed and petitioner is acquitted then the effect of the order

Annexure P-9 dated 12.12.2002 still continues to be there and petitioner still would not be able to get full pension even though petitioner is acquitted in

the appeal and conviction is set aside.

The apprehension so raised by the learned counsel for the petitioner is not correct. It is seen in the present case that the order Annexure P-9 dated

12.12.2002 is based upon the conviction of the petitioner and in case the conviction is set aside and petitioner is acquitted on merit, the effect of the

order dated 12.12.2002 (Annexure P-9) shall automatically lose its sanctity and petitioner after his acquittal in appeal shall be entitled to the pension in

accordance with law and the pension of the petitioner shall stand restored from the date it is stopped i.e. from 12.12.2002 and petitioner shall be

entitled to arrears there of.

On the basis of the aforesaid clarification, the present petition stands disposed of.â€​

It is, thus, clear that the writ Court has virtually confirmed the order passed by the respondent/authority.

Rule 47(2)(b) of the Rules of 1976 provides for grant of family pension to the family of deceased pensioner and reads as follows :-

“47. Contributory family pension:

(1) ….................................................................

(2) Without prejudice to the provisions contained in sub-rule(3), where a Government servant dies-

(a) …....................................................................

(b) after retirement from service and was on the date of death in receipt of a pension or compassionate allowance, referred to in Chapter V, on the

date of death.

The family of the deceased shall be entitled to a contributory family pension (hereinafter in this rule referred to as Family Pension) the amount of

which shall be determined as follows :-

Pay of Government servant Amount of monthly family pension

(i) Below Rs. 400.30 per cent of pay subject to a minimum of Rs. 60 and a maximum of Rs.100.

(ii) Rs.400 and above but not 15 per cent of pay subject to a minimum exceeding Rs.1200 of Rs.100 and a maximum of Rs.160

(iii) Above Rs.1200 12 per cent of pay subject to a minimum of Rs.160Â and a maximum of Rs.250

A perusal of aforesaid makes it clear that family of a pensioner shall be entitled to family pension only when the pensioner on the date of his death

was in receipt of a pension.

In the present case, it is undisputed that M.G.Bawne died on 17.08.2015 during pendency of the appeal and as such the appeal filed by him stood

abated. It is also not disputed that the petitioner as a legal representative of the deceased-pensioner did not take any action for continuation of the

appeal. The pension of pensioner/petitioner's husband was stopped on 12.12.2002 which was challenged in WP No.36/2003. After disposal of the

aforesaid writ petition, the pensioner/petitioner's husband has not challenged the said order any further and the same has become final. It is, thus, clear

that petitioner's husband was not receiving any pension on the date of his death, hence,in view of aforesaid provision petitioner is not entitled to a

family pension.

The contention of learned counsel for the petitioner that the power to stop pension under Rule 9 of the Rules of 1976 lies only with the Governor and

as such the authority had no power to stop the pension of her deceased-husband.

Learned counsel appearing for the petitioner has relied on a decision of this Court in WP No.8887/2012 (N.P.Shrivastava vs. M.P. State Electricity

Board and another) decided on 15.05.2018 to support his submissions. The same is not applicable to the facts of the case as the effect of Rule 47 of

the Rules of 1976 has not been considered therein. Further more it will not have any effect on the cases which are already decided.

Moreover vide order dated 18.09.2007 passed in WP No.36/2003 the writ Court had virtually confirmed the order of stoppage of the pension affording

the liberty to the petitioner mentioned therein. The deceased did not challenge the said order for so many years. Now, the widow, after a lapse of

more than ten years, has no right to challenge the same by filing this petition.

In view of aforestated, I find no merits in the petition.

The petition is accordingly dismissed. No order as to costs.