Radha Krishna Sharma vs State Of M.P

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

''7.i)That, the Order Impugned Annexure P/1 may kindly be quashed.

7.i) That, respondent be directed to give release Time pay scale, gratuity, Surrender leave, Time pay Scale, benefit of 7th Pay Commission and other retiral benefits.

7.ii) That, Re-fix the pension and pay the differential amount of pension and be directed to pay full pension.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted.''

It is submitted by the counsel for the petitioner that the petitioner was tried for an offence punishable under Sections 7, 13(1)(d) r/w Section 13(2) of

Prevention of Corruption Act, 1988 and by judgment and sentence dated 30th March, 2019 passed by the Trial Court in Special Sessions Trial

No.02/2016, the petitioner has been convicted under Sections 7, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. It is submitted

that against his conviction the petitioner has filed a Criminal Appeal No.3254/2019 and by order dated 21/11/2019, the sentence awarded to the

petitioner has been suspended. It is submitted that in spite of suspension of sentence of the petitioner, the respondents

have issued the impugned order dated 19/03/2020 and the entire pension has been stopped. It is submitted that the Full Bench of this Court in the case

of Ram Sewak Mishra vs. State of MP, reported in (2017) 4 MPLJ 428 has held as under:-

''….........Therefore, in case of a pensioner, the rule of natural justice would warrant an opportunity of hearing, at

least of serving a show cause and elucidating the reply of the pensioner and thereafter, pass an order as may be

considered appropriate by the authority so as to enable the appellate authority or the judicial courts to test the

legality of the same while exercising the powers of the judicial review. ''

It is further submitted by the counsel for the petitioner that since the impugned order has been passed without giving any show cause notice to the

petitioner or holding any departmental enquiry, therefore, the same is bad and accordingly, liable to be quashed.

Per contra, the impugned order has been supported by the counsel for the State.

Heard the learned counsel for the parties through video conferencing.

The undisputed fact is that the petitioner was tried for an offence under Sections 7, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988

and he has been convicted by judgment and sentence dated 30th March, 1999. It is also undisputed that the conviction of the petitioner has not been

stayed and merely, his sentence has been suspended. Even otherwise, the Supreme Court in the case of K.C. Sareen Vs. CBI reported in (2001) 6

SCC 584 has held that in the matters arising out of Prevention of Corruption Act, conviction should not be stayed.

In the case of K.C. Sareen (Supra) it has been held as under :

Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the

protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong

legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the

democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and

operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness

demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain

his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If

such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of

suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is

allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk

confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the

convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout

would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold

only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer

could continue to hold such public office even without the help of a court order suspending the conviction.

The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when

conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the

pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under

disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.

Since, the conviction of the petitioner has not been stayed, therefore, under these circumstances, the respondents have issued the impugned order

thereby stopping the pension of the petitioner.

So far as the question of non-grant of opportunity of hearing before passing the impugned order is concerned, it is well-established principle of law that

an order cannot be quashed merely on the ground of violation of principle of natural justice until and unless the petitioner succeeds in establishing that

non grant of opportunity of hearing has caused serious prejudice to him.

The Supreme Court in the case of State Vs. N.S. Gnaneswarab reported in (2013) 3 SCC 594 has held as under :

12. The issue also requires to be examined on the touchstone of doctrine of prejudice. Thus, unless in a given situation, the aggrieved makes out a case of

prejudice or injustice, some infraction of law would not vitiate the order/enquiry/result. In judging a question of prejudice, the court must act with a broad vision and

look to the substance and not to technicalities. (Vide: Jankinath Sarangi v. State of Orissa, State of U.P. v. Shatrughan Lal, State of A.P. v. Thakkidiram Reddy and

Debotosh Pal Choudhury v. Punjab National Bank.)

The Supreme Court in the case of Natwar Singh Vs. Director of Enforcement reported in (2010) 13 SC 255 has held as under :

26**. Even in the application of the doctrine of fair play there must be real flexibility. There must also have been caused some real prejudice to the complainant; there

is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the circumstances of the case, the nature of

the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth. Can the courts supplement the statutory procedures with

requirements over and above those specified? In order to ensure a fair hearing, courts can insist and require additional steps as long as such steps would not

frustrate the apparent purpose of the legislation.

Therefore, it is clear that the principle of Natural Justice cannot be reduced to any particular hard and fast rule and the underlying principle is fair

hearing.

The counsel for the petitioner could not point out any illegality in the impugned order by which the pension of the petitioner has been stopped in the

light of his conviction under Sections 7, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988.

Since no prejudice has been caused to the petitioner merely because the impugned order has been passed without issuing any show cause notice to the

petitioner, therefore, this Court is of the considered opinion that no fault can be found in the impugned order. Accordingly, this petition fails and is

hereby dismissed.