Vaidhyanath Shukla vs State of M.P. and Others

Krishn Kumar Lahoti, J.—This appeal shall decide W.A. No. 1245/2012 & W.A. No. 1246/2012, in which similar question of law is involved on similar facts. The facts are taken from W.A. No. 1245/2012 for the convenience.

This appeal is directed against an order dated 9.10.2012 in W.P. No. 21844/2011, by which the writ petition preferred by the appellant challenging the action of the respondents by which provisional pension was stopped, has been dismissed.

Learned counsel for petitioner submits that until and unless a specific order is passed by the Governor for stopping the provisional pension the authorities could not have stopped the pension. The petitioner has placed reliance to Rule 64(1)(b) of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as Tension Rules'' for short) in support of his contention.

We have perused the record.

The facts of the case are that appellant was working as Head Master at Govt. Middle School Umari Sankul Kendra Govt. High School Belwa Sursari Singh Block Sirmour, District Rewa. A criminal case was registered against him, when he was in service and challan was filed before the Special Judge, Rewa for an offence under sections 467, 468, 471, 201 and 120-B of the IPC read with section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The appellant was also placed under suspension on 6.2.2007 because of filing of challan against the appellant. During the pendency of criminal proceedings appellant had attained the age of superannuation''s however after attaining superannuation appellant was allowed provisional pension, as is permissible under Rule 64(1)(b) of the Pension Rules. Ultimately the appellant was convicted on 30.9.2011 and after conviction of the appellant the aforesaid provisional pension was stopped by the concerned Head Principal. This caused appellant to file writ petition.

The learned Single Judge considered the facts and found that after conviction of the appellant, the appellant was not entitled for provisional pension and the aforesaid provisional pension was allowed during the pendency of criminal proceedings against the appellant and after conviction of the appellant, the appellant was not entitled for provisional pension. The learned Single Judge also considered that merely an appeal was filed and his sentence was suspended will not be a ground to treat that the appellant was not convicted, as the effect of suspension of sentence would be that the appellant would not suffer jail sentence, however his sentence shall be subject to decision in the appeal. Reliance was placed by the learned Single Judge to the Judgment of Apex Court in Rama Narang Vs. Ramesh Narang and Others, State of Tamil Nadu Vs. A. Jaganathan, and Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera,

To appreciate the contention of the appellant it would be appropriate that if the provisions as contained in relevant rule 64(1)(b) of the Pension Rules are referred, which reads thus:

Provisional Pension where departmental or judicial proceeding may be pending - (1) (a)...

(b) The provisional pension shall be drawn on establishment pay bill and paid to retired Government servant by the Head of Office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

The aforesaid provision specifically provides that an employee after attaining the age of superannuation shall be entitled for provisional pension to be drawn by the Head of the office during the period commencing from the date of retirement to the date on which upon conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

In this case the judgment was passed by the Special Judge, Rewa, by which the appellant was convicted. So far as the phraseology used that "final order passed by the competent authority" it does not relate to the final authority in respect of payment of pension, but it relates in respect of the departmental or judicial proceedings, which are referred in clause (b) of sub-rule (1) of Rule 64. The criminal proceedings remained pending after the retirement till the passing of the sentence and after conviction and sentence, the appellant was not entitled for provisional pension and even in this regard it was not necessary to pass another order by the competent Departmental authority. The aforesaid provisional pension was to meet out the contingency, so that the employee may get provisional pension till the finality of the proceedings, but as soon as the proceedings are concluded by the Criminal Court, convicting a retired employee, he would not be entitled for further pension until and unless his conviction is stayed or is set aside by the higher authority.

In view of the aforesaid, we do not find any error in the order passed by the learned Single Judge in dismissing the writ petition.

At this stage, learned counsel for appellant submitted that the appellant Vaidhyanath Shukla was not allowed provisional pension for two months before the date of conviction, for which he was entitled as per clause (b) of sub-rule (1) of Rule 64 of the Pension Rules, but this aspect has not been considered by the Single Judge.

On raising such contention, Shri Samdarshi Tiwari, learned G.A., submitted that the appellant was entitled for provisional pension till the date of his conviction and if any such amount has not been paid, on filing a representation in this regard, the Head of the office shall release aforesaid remaining amount of provisional pension to the appellant, if already not paid. With the aforesaid clarification, this appeals is dismissed, with no order as to costs.