IN THE HIGH COURT OF MADHYA PRADESH

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BEFORE

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HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT

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ON THE 25

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th

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OF FEBRUARY, 2026

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WRIT PETITION No. 3562 of 2014

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AJAY KUMAR PANDVIA

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Versus

THE STATE OF MADHYA PRADESH

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Appearance:

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Shri Alok Katare - Advocate for the petitioner.

Ms. Smrati Sharma - Government Advocate for the respondent/State.

ORDER

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This petition, under Article 226 of the Constitution of India, has been filed

seeking the following reliefs:-

"(i) That, the Hon'ble Court may kindly be pleased to allow this Writ

Petition;

(ii) That, the order dated 3.4.2014 Annexure P/1 passed by the

respondent no.1 may kindly be directed to be quashed.

(iii) That, any other just, suitable and proper relief, which this Hon'ble

Court deems fit, may also kindly be granted to the petitioner. Costs be

also awarded in favour of the petitioner."

2. Learned counsel for the petitioner submits that the petitioner was

appointed on the post of Sub Engineer on 05.03.1984 and subsequently, vide

order dated 24.04.1999, the petitioner was declared as Gazetted Officer.

Thereafter, on the basis of some false complaint a criminal case was registered

against the petitioner under Sections 420, 467, 468, 471 and 120-B of IPC and

Section 15 of the Prevention of Corruption Act. The petitioner was government

employee, the permission under Section 197 of CrPC was not taken before filing

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of the challan against the petitioner. Therefore, by order dated 06.03.2010, the

Special Court has refused to take cognizance of the case for want of requisite

permission from the government under Section 197 of Cr.P.C. It is further

submitted that challan has been filed before Special Judge. Thereafter, petitioner

requested for his voluntary retirement and his request was accepted and petitioner

was voluntary retired on 05.08.2010. It is submitted that before issuing the

impugned order, no consultation was made with the State Public Service

Commission. However, it is further submitted that the approval or consultation of

the State Public Service Commission is not mandatory for matters relating to

pension.

3. The aforesaid powers were exercised under Rule 9 of the Pension Rules

1976 and though the powers under Rule 9 is conferred upon the Governor and not

to the State Government, the impugned order was passed in the name of Governor

by the State Government. Before passing of the said order, no opportunity of

hearing was ever granted to the petitioner, no notice was issued to him, thus the

said order has been passed in utter violation of principle of natural justice.

Aggrieved by the aforesaid order of withholding of 100% of pension, the present

petition has been filed.

4. Learned counsel for the petitioner had vehemently argued that under Rule

9 of the Pension Rules 1976 the State Government is not having any authority to

pass order of withholding pension of a retired employee and it is prerogative of

Governor who can exercise such powers, thus, the order which is not issued by the

Governor suffers from vice of perversity and, therefore, is liable to be set aside.

5. It was further submitted that the order passed by respondents in exercise

of powers of Rule 9(1) of the Pension Rules 1976 is without following the

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provisions as contained under Rule 8 of the Pension Rules 1976, which provides

for giving an opportunity of hearing to the employee before

withdrawing/withholding the pension and since no opportunity of hearing has

been granted to the petitioner before passing the impugned order, the said order is

per se illegal and since it is against the statutory provisions, deserves to be

quashed.

6. It was further argued that as per the provisions contained under Rule 9 of

the Pension Rules 1976, it is the Governor who reserves the right of withholding

or withdrawing a pension or a part thereof, either permanently or for a specified

period, if in any departmental or judicial proceedings, the pensioner is found

guilty of grave misconduct, but herein the order has been passed by the State

Government in the name of Governor and not by the Governor, therefore, the said

order passed invoking the provisions under Rule 9(1) of the Pension Rules, 1976

is not sustainable.

7. It is further argued that the second proviso appended with the Pension

Rules, 1976 provides 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, but in the present case the

entire pension of the petition has been withdrawn/withheld, which is in total

derogation of the proviso appended to Rule 9 (1) of the Pension Rules, 1976, thus,

it was submitted that the impugned order being perverse in nature deserves to be

quashed.

8. While placing reliance in the matter of Radha Krishna Sharma Vs. State

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of M.P. & ors.

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reported in ILR 2021 MP 1641 (DB)

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; it was contended that even

the Governor in case of pensioner, who is found guilty of grave misconduct in

judicial proceedings has to apply his/her mind to contemplate on the relevant

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factors of the gravity of offence as to whether the trial Court had imposed

maximum or minimum punishment prescribed under the law, expected hardships

and whether there are any extenuating circumstances which may lead to success in

the appeal filed against the conviction and sentence and after considering those

factors, the Governor has to decide whether to withdraw/withhold pension entirely

or partly and further whether this withdrawing/withholding would be temporary or

permanent.

9. On the basis of aforesaid arguments it was submitted that the present

petition deserves to be allowed and the matter deserves to be relegated back to the

authorities for fresh consideration of withholding/withdrawing of the entire

pension of the petitioner. To bolster his submissions, he has further placed

reliance in the matter of State of M.P. and others Vs. Dr. Yashwant Trimbak

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reported in AIR 1996 SC 765

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and in the matter of Sher Singh Bhadoriya Vs.

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State of M.P. passed by this Court on 04.10.2023 in W.P. No.2509/2013.

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10. Per contra, learned Government Advocate appearing for the State

submitted that provisions of Rule 9(1) of the Rules of 1976 do not provide for

giving any opportunity of hearing in express terms, therefore, the contention

raised on behalf of the petitioner that no opportunity of hearing was granted before

passing of the impugned order has no force and the impugned order, therefore,

cannot be said to be vitiated on this count.

11. It was further argued that the order impugned is passed in the name of

the Governor and, therefore, it cannot be said that it has not been passed by the

Governor and had been passed as per the provisions contained in Rule 9(1) of the

Rules of 1976, which could entail the dismissal of the said order.

12. It was further argued that the petitioner was involved in an offence

governed under the provisions of Prevention of Corruption Act which involves

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moral turpitude and has ended in his conviction and since there is not stay on the

conviction, only the sentence has been suspended, therefore, the impugned order

cannot be said to be bad in law and looking to the gravity of office the said order

cannot be said to be unjustified and in accordance with law. On the strength of

above arguments, it was submitted that the present petition is devoid of any

substance and, therefore, it is liable to be dismissed.

13. Heard learned counsel for the parties and perused the record.

14. The question which is posed before this Court and which is required to

be answered is as to whether while passing an order of withholding/withdrawing

of the entire pension; firstly the employee is required to be heard in case where the

said withdrawal/withholding of the pension is with due regard to the criminal trial

faced by the petitioner and had ended in conviction and secondly whether while

passing the order of withdrawal/withholding of pension under Rule 9 (1) of the

Rules of 1976 the authority passing such an order is required to apply his or her

mind on the relevant factors of the gravity of offence and thirdly as to whether the

order passed in the name of Governor by the State Government can be said to be

an order passed by the Governor as per the provisions contained in Rule 9(1) of

the Rules of 1976.

15. Before analysing the contentions of rival parties, it would be apposite to

go through the provisions of Rule 9(1) of the Rules of 1976, which is quoted

herein under:-

"9. Right of Governor to withhold or withdraw pension. -

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(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

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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 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]."

16. The Division Bench of this Court in the matter of Radha Krishna

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Sharma Vs. State of M.P. & ors. (Supra)

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as quoted by the learned senior counsel

has culled down the basic ingredients of Rule 9(1) of the Rules of 1976 as under:-

(a) The Governor alone is vested with power of

withdrawing/withholding pension of a retired government servant;

(b) The withholding/withdrawing can be of the entire pension or part

thereof;

(c) This withdrawing withholding of pension can be permanently or for

a limited period;

(d) The power is further vested with the Governor of ordering recovery

from pension of whole or part of the pecuniary loss caused to the

government;

(e) The aforesaid powers of withdrawing/withholding pension or

recovering loss from pension can be exercised only after conduction of

departmental enquiry or judicial proceedings;

(f) It is further necessary that this departmental enquiry or judicial

proceedings must find the pensioner guilty of grave misconduct or

negligence for any act committed during the period of his service

including service rendered during re-employment.

17. In the aforesaid context, if the facts of present matter is analyzed, it

could be observed that so far as withdrawing/withholding of pension after

conducting departmental inquiry is concerned, the delinquent pensioner is

required to be given reasonable opportunity of hearing, however, if the

withdrawing/withholding of the pension upon the pensioner is based upon he

having been found guilty in some judicial proceedings, then the Rules does not in

any express terms provides for giving further opportunity before

withdrawal/withholding of his pension. Though, looking to the nature of the

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offence in which the Petitioner is convicted, if involves moral turpitude and the

petitioner has been found guilty of grave misconduct in judicial proceedings, it is

apparently clear that pre-requisites for invoking the power of the Governor to

withdraw/withhold the pension under Rule 9(1) of the Rules of 1976 are satisfied.

However, the said powers cannot be said to be unfettered in the case like present

one, as the petitioner has been found guilty of grave misconduct in the judicial

proceedings and the authority is required to apply his or her own mind with regard

to the relevant factors of gravity of the offence, the period of punishment and other

extenuating circumstances and after considering those factors, it is to be decided

whether the withdrawal or withholding of the pension entirely or partly be done or

further whether the withdrawing/withholding would be temporary or permanent

and in that context the delinquent pensioner is required to be granted opportunity

of hearing.

18. The said opportunity to the delinquent pensioner cannot be said to be an

empty or mere formality, as he would be in the best position to bring to the

knowledge to the Governor the various extenuating circumstances which may not

be available to the Governor by the functionaries of the State. This opportunity of

hearing is also required to be given to the delinquent pensioner as

withdrawing/withholding of the pension temporarily or permanently affects the

rights and livelihood of the pensioner.

19. Affording this opportunity at the aforesaid stage is all the more

necessary since the ultimate result of the exercise of withdrawing/withholding

pension partly or fully, temporarily or permanently vitally affects the right of

livelihood of the petitioner, which is directly related to the right to life.

20. Pertinently, pension is not a bounty but right available to the pensioner

in the evening of the life and is a reward for the services rendered to the state. Any

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reduction/withdrawing/withholding of pension, partly or fully, temporarily or

permanently causes serious adverse civil consequences, therefore, such a decision

cannot be taken without hearing the pensioner, who is intended to be adversely

affected.

21. It is trite law that any decision taken which causes civil consequences of

adverse nature out to be preceded by affording reasonable opportunity of being

heard or else such decision renders itself to be abhorrent to the basic fundamentals

of the rule of law and this principle applies even where statute does not in express

terms provide for affording of reasonable opportunity of hearing. This aspect had

been considered by Division Bench of this Court in the matter of Radha Krishna

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Sharma (Supra)

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and while placing reliance in the matter of State of Punjab Vs.

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K.R. Emy and Sobhag Rai Mehta reported in (1973)1 SCC 120

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, it had been held

that great prejudice is caused to a pensioner by non affording of an opportunity

prior to withdrawal of pension.

22. In the conspectus of the above discussion and interpretation of the

provisions of Rule 9(1) of Rules of 1976, this Court is of the considered view that

Petitioner/Pensioner was entitled for grant of opportunity of being heard prior to

issuance of order withdrawing pension. In light of the aforesaid, the third aspect is

not required to be gone into at this stage.

23. Considering the rival submissions and going through the language of

Rule 15 (3) of the Rules of 1966 and Rule 9 of the Rules of 1976 as well as

judgments of the Division Bench in the case of Radha Krishna Sharma (supra) and

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Dhirendra Kumar Dubey (supra)

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, it appears that consultation with the State Public

Service Commission (PSC) is mandatory and therefore, if the consultation with

PSC is not carried out, then it vitiates the proceeding.

24. So far as withholding of entire pension permanently is concerned,

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Apex Court in the case of Jarnail Singh (supra)

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has given the guidelines in

following manner :-

5. Rule 3 of the C.C.S. (Pension) Rules, 1972 contains the definitions.

Clause (o) in sub-rule (1) of Rule 3 is as under:-

"Pension" includes gratuity except when the term pension is

used in contradistinction to gratuity.

From this definition of the word 'pension', it is clear that ordinarily the

word 'pension' wherever used in these Rules includes gratuity except

when the term 'pension' is used in contradistinction to gratuity.

6. Rule 9, to the extent it is relevant for our purpose, is an under:-

9. Right of President to withhold or withdraw pension. - (1)

The President 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 a

pension of the whole or part of any pecuniary loss caused to

the Government, if, in any departmental or judicial

proceedings, 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 Union Public Service Commission shall

be consulted before any final orders are passed :

Bearing in mind the definition of the term 'pension' in Rule 3(1)(o), the

term 'pension' used in Rule 9(1) must be construed to include gratuity

since the term 'pension', in the context, is not used in contradistinction

to gratuity. Learned counsel for the appellant, however, referred to the

amendment made in Rule 9(1) by the Central Civil Services (Pension)

Third Amendment Rules, 1991, whereby the term 'pension' has been

substituted by the expression 'pension or gratuity, or both' and

consequential amendments made in that sub-rule. The question is :

Whether this amendment made in 1991 indicates, as contended by

learned counsel for the appellant, that 'pension' alone could be withheld

under Rule 9(1) and not also the gratuity prior to the amendment of

Rule 9(1) in 1991? In our opinion, the definition of 'pension' in Rule

3(1)(o) quoted above negatives the appellant's contention and clearly

indicates that the 1991 Amendment is merely clarificatory and makes

explicit that which was clearly implicit prior to that amendment by

virtue of the definition of term 'pension' in Rule 3(1)(o). This

clarification appears to have been made only to remove the doubt

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created by the decisions relied on by counsel for the appellant which

are considered hereafter.

9. Reference to some other provisions in the Central Civil Services

(Pension) Rules, 1972 supports the view we have taken. Rule 69(1)(c)

provides that no gratuity shall be paid to the Government servant until

the conclusion of the departmental or judicial proceedings and issue of

final orders thereon. This provision is indicative of the power to

withhold payment of gratuity and its payment being subject to the final

outcome of any pending departmental or judicial proceeding against the

Government servant. Rules 71 and 73 relating to recovery and

adjustment of Government dues and the express provision in Rule

73(3) for adjustment of dues against the amount of death-cum-

retirement gratuity payable to the Government servant also reinforce

this conclusion. Article 366 of the Constitution of India contains the

definitions for the purpose of the Constitution and there in Clause (17)

is defined 'pension' to include gratuity as well. This definition of

'pension' in the Constitution also indicates that conceptually the term

'pension' includes gratuity. In Rule 3(1)(o) of the Central Civil Services

(Pension) Rules, 1972, the term 'pension' is defined to include gratuity

except when the term 'pension' is used in contradistinction to gratuity,

in consonance with the basic concept. The contention of the appellant

was, therefore, rightly rejected by the Tribunal.

Thus, from above guidance and from the very perusal of Rule 9, it can be

safely inferred that full pension can be withheld permanently.

25. However, in view of the above discussion when consultation with State

PSC was not carried out in the instant case and same was required to be done,

thus, proceeding got vitiated.

26. Consequently, the present petition is hereby allowed and disposed of

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in

the following terms:-

(i). The impugned order dated 03.04.2014 (Annexure P/1) is hereby set

aside.

(ii). The matter is relegated to the competent authority to pass fresh order

after following due process of law within a period of four months from the date of

receipt of certified copy of this order after getting approval from the State Public

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Service Commission.

27. However, this Court has not expressed any opinion on the merits of the

case.

(ANAND SINGH BAHRAWAT)

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JUDGE

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Monika

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