IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7303 of 2002 For Approval and Signature:
HONOURABLE MR.JUSTICE PARESH UPADHYAY ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= HASMUKHBHAI NARANBHAI PATEL - Petitioner Versus STATE OF GUJARAT & 3 - Respondents ========================================================= Appearance :
MR KEDAR B BINIWALE for Petitioner MR K.L. PANDYA AGP for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 03/11/2012 CAV JUDGMENT
1. By way of this petition, challenge is made to the action of the respondent authorities, whereby monthly pension of the petitioner was stopped from April, 2001.
2. Heard Mr. Kedar Biniwale learned advocate for the petitioner and Mr. K.L.Pandya learned Assistant Government Pleader for the authorities of the Government.
3. The petitioner had retired on attaining the age of superannuation on 31.10.2000, from the post of Administrative Officer of the Government Medical College at Baroda. On his retirement, the pension case of the petitioner was finalized and he was paid his retirement dues and every month he was getting regular pension, against which he did not have any grievance.
4. The authorities of the Government stopped paying monthly pension to the petitioner from April, 2001. Before doing so, no procedure was followed by the authorities, nor anything was even intimated to the petitioner. Under these circumstances, the petitioner approached this Court. In response to the order of this court dated 9.8.2004 of issuance of notice, it was contended by the State authorities that because of some financial irregularities in the office of Divisional Officer, Medical Stores, Baroda (where the petitioner was not working), the responsibility of the petitioner could also be fixed, and therefore his pension was stopped. This Court (Coram: R.M.Doshit, J.), while admitting the petition on 19.7.2004, found and recorded that, the respondent authorities did not have any power or authority to withhold the pension of the retired government servant except in accordance with Rules. It was further observed in para-5 of the said order that admittedly, no order as envisaged under Rule 188 or 189-A of the Bombay Civil Services Rules was made against the petitioner. In absence of any such order, the action of the authorities of withholding the pension was found to be unsustainable by this Court, and therefore, by way of interim order, it was directed that the payment of monthly pension to the petitioner be resumed immediately i.e. with effect from 1.8.2004.
5. From record it transpires that, after filing of this petition, two orders came to be passed by the authorities. The first order is dated 14.2.2003 whereby it was ordered that because of some financial irregularity in the office of Divisional Officer, Medical Stores, Baroda, the responsibility of the petitioner could also be fixed and therefore, until that chapter is over, the payment of pension to the petitioner is ordered to be stopped and the inquiry against the petitioner shall continue even after his retirement. Thereafter, the said order dated 14.2.2003 came to be amended on 17.5.2003, whereby, the words to the effect that “pension is ordered to be stopped” were ordered to be deleted. It is also on record that on 8.4.2001 an FIR was filed with regard to the said alleged financial irregularity in DCB Police Station, Baroda City, being CR No. I-19/2001, wherein three persons, [not the petitioner], were named as accused for committing offence under Sec. 120-B, 467, 468, 471 and 420 of IPC. It is pointed out that the said offence was investigated and pursuant thereto, charge sheet in the competent court is also filed. In the charge sheet also petitioner is not named as an accused.
6. Learned AGP was specifically asked by this court to place on record of this petition, copy of the charge sheet, if any, issued to the petitioner, for departmental enquiry in this regard. He was also asked to furnish details of the criminal proceedings, if any, initiated against the petitioner in this regard. Learned AGP Mr.Pandya, after taking instructions from the office of the Commissioner of Health, Gujarat State as well as Director of Accounts and Treasuries, Gujarat State, has indicated that no such proceedings are initiated against the petitioner. To elaborate it, it is recorded that neither any departmental proceedings nor any criminal proceedings are initiated against the petitioner in this regard, till date. Learned AGP has also not been able to point out the powers of the government, to order withholding of pension, under these circumstances.
7. So far as FIR is concerned, the name of the petitioner was not reflected as an accused in the FIR. After investigation, charge-sheet is filed in the competent court and the said charge-sheet is placed on record of this petition by affidavit-in-rejoinder dated 23.9.2003, and from that also, it is clear that, in the investigation also, no role of the petitioner is found and therefore he is not arraigned as an accused even at the time of filing of the charge sheet in the competent court. Thus, it is clear that no criminal proceeding was ever initiated against the petitioner in this regard.
8. So far as departmental enquiry aspect is concerned, it is a matter of record that no departmental enquiry is ever initiated against the petitioner in this regard.
9. So far as order passed by the Government dated 14.2.2003 and corrigendum thereto dated 17.5.2003 is concerned, it needs to be recorded that the departmental enquiry if initiated, can be ordered to be continued after retirement, however in the present case, when order dated 14.2.2003 was passed, there was no enquiry which was initiated against the petitioner and therefore there was no question of continuance of enquiry which was not initiated by the authorities. Further, in the said order dated 14.2.2003 the decision to withhold pension, until this issue is concluded, was without following any procedure under the rules and was thus without any authority of law. However, that question is not required to be gone into in detail at this stage since that mistake was already corrected by the authorities by order dated 17.5.2003.
10. From above facts, more particularly para 6 to 8, it is clear that the impugned action of withholding of pension was without any authority of law, when was taken, and has further turned out to be without any cause, because of subsequent inaction of the authorities for more than a decade. Under these circumstances, this petition deserves to be allowed with costs.
11. For the reasons recorded above, I arrive at the judgement and pass order as under.
(A) It is held that the action of the respondent authorities of withholding of pension was without any authority of law and without any cause, and therefore the same is set aside.
(B) Consequently, it is directed to the respondent authorities that, arrears of unpaid pension shall be paid to the petitioner, within two months from today.
(C) For the reasons recorded in para-10 above, the respondent authorities are further directed to pay costs of Rs. 10,000/- to the petitioner. The amount of costs shall also be paid within two months from today.
Rule made absolute.
[PARESH UPADHYAY, J.] mandora/