Heard Mr. Darji, learned advocate for the petitioner, Ms. Chitaliya, learned AGP, for the respondent No.1 – State and Mr. Munshaw, learned advocate for the respondent No.2. 2. The petitioner has taken out present petition seeking below mentioned relief:-
“9(B) Allow this Special Civil application and be pleased to issue writ of Mandamus or any order or direction in the nature of Mandamus or any other writ order or direction and be pleased to quash and set aside the order no.MKM/E/113/2011 dated 18/11/2011 (Annexure-A) and be pleased to quash and set aside the order no.JE.P./MKM/VASHI/311/2008 dated 19/11/2008 (Annexure- B) passed by the District Development Officer, District Panchayat, Mehsana and further be pleased to direct respondent authority to grant leave encashment, gratuity amount direct respondent authority to pay all retireal dues i.e. gratuity and leave encashment and all other benefit of service of petitioner and further be pleased to direct respondent authority to grant benefit of sixth pay commission and to revise pay of petitioner accordingly and also to revise pension as per sixth pay commission and to pay arrears of the same immediately to petitioner.
(C) Pending admission, hearing and till final disposal of this petition be pleased to stay further operation, implementation and execution of ORDER NO.MKM/E/1134/2011 dated 18/11/2011 (Annexure-A).
(D) Pending admission, hearing and till final disposal of this petition be pleased to direct respondent authority to pay all retireal dues i.e. gratuity and leave encashment and all other benefit of service of petitioner and further be pleased to direct respondent authority to grant benefit of sixth pay commission and to revise pay and pension as per sixth pay commission and to pay arrears of the same immediately to petitioner.”
3. The reliefs prayed for by the petitioner are required to be considered in light of the fact that against the petitioner criminal proceedings under the provisions of Prevention of Corruption Act were instituted and after regular trial, the petitioner has been convicted.
Of course, it is true that the petitioner has preferred appeal against the conviction and the said appeal is pending for final hearing.
4. In light of the aforesaid facts, it is required to be considered that the authority has passed order imposing 100% cut on permanent basis on payment of pension.
5. The petitioner, by way of present petition, seeks to challenge the said order and request the Court that the said order imposing 100% cut on pension may be set aside.
6. Since the petitioner is already convicted and appeal is yet not decided in favour of the petitioner, this Court does not consider it appropriate to entertain the said relief at this stage. So far as the said fact and the event exists, at this stage, there does not appear any justification in granting the reliefs prayed for by the petitioner.
6.1 It is, however, clarified that if the petitioner succeeds in the appeal, then, it would be open to the petitioner to make appropriate application to the competent authority to pass fresh and appropriate order with regard to pension and retiral dues. As and when such application is preferred, the competent authority may decide the same in accordance with law and applicable rules.
7. The other grievance made by the petitioner in present petition is with regard to the amount payable to the petitioner towards leave encashment. It is the case of the petitioner that at one point of time, order granting leave encashment was passed in favour of the petitioner, however, subsequently, in view of the criminal proceedings against him, the order came to be stayed.
8. Mr. Darji, learned advocate for the petitioner, has relied on Rule 65 of the applicable Rules and submitted that the competent authority could not have cancelled the said earlier order sanctioning payment towards leave encashment without following prescribed procedure and without affording opportunity of hearing.
9. Per contra, Mr. Munshaw, learned advocate for the respondent authority, has submitted that the petitioner has failed to place before the Court relevant facts viz. while in employment, the petitioner herein had availed Housing Loan and Vehicle Loan facilities. In that view of the matter, order for adjusting, in installments, the amounts payable towards the said loans from the pension amount was passed, however, in view of the subsequent order putting 100% cut on permanent basis on payment of pension, in view of the petitioner's conviction, the recovery of the amounts towards Housing Loan and Vehicle Loan became impossible and that therefore, the competent authority has been constrained to pass order of cancelling the order sanctioning payment of leave encashment amount so as to adjust the loan amounts therefrom.
10. Having regard to the aforesaid fact and circumstances, particularly in view of the fact that the respondent authority is entitled to recover the loan amounts, it does not appear appropriate and justified to set aside the action of the respondent authority at this stage.
11. In view of the said submission made by Mr. Munshaw, learned advocate for the respondent authority, Mr. Darji, learned advocate for the petitioner, has fairly submitted that the petitioner has no objection if the respondent authority adjusts the loan amount towards the leave eacashment amount and if any surplus amount remains, the same may be paid to the petitioner.
12. Mr. Munshaw, learned advocate for the respondent authority, has submitted that if a request/application with regard thereto is made by the petitioner, the competent authority shall consider the same in accordance with the applicable rules and policy.
13. In that view of the matter, at this stage, any other or further order is not required to be made in present petition except what is stated hereinabove.
13.1 It would be open to the petitioner to make appropriate application/request to the competent authority to adjust the loan amount and if any surplus amount remains from the amount payable towards leave encashment, then, such payment may be requested for.
With aforesaid clarification, observations and direction, present petition stands disposed of. Notice is discharged.
(K.M.Thaker, J.) kdc