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Rajasthan HC grants 15-day parole to life convict

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I t would be in the fitness of things to mention right at the outset before stating anything else that in a very significant development, the Rajasthan High Court at Jodhpur in a learned, laudable, landmark and latest judgment titled Nand Lal through his wife Rekha v. State of Rajasthan in D.B. Criminal Writ Petition No. 10/2022 and cited in 2022 LiveLaw (Raj) 122 that was pronounced finally on April 5, 2022 has observed that the denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife. In this regard, the Court granted 15 days parole to the life convict. The Bench opined that Hindu philosophy also advocates the importance of pitrarin i.e. parental debt.

It was also added by the Court that our lives are the consequences of the fact that ancestors have been carrying and forwarding the said pitrarin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt. To start with, this brief, brilliant, bold and balanced judgment authored by Justice Farjand Ali for a Bench of Rajasthan High Court comprising of himself and Justice Sandeep Mehta sets the ball rolling by first and foremost putting forth in the opening para that, “The instant writ petition has been preferred by convict prisoner Nand Lal through his wife Smt. Rekha seeking emergent parole under Rule 11 (1) (iii) of the Rajasthan Prisoners Release On Parole Rules, 2021 (hereinafter for short ‘the Rules of 2021’) on the ground of want of progeny.”

T o p u t t h i n g s i n perspective, the Bench then while stating briefly the facts of the case then observed in the next para of this notable judgment that, “Briefly stated the facts of the case are that the convict-prisoner Nand Lal is lodged at the Central Jail, Ajmer and is serving the sentence awarded to him by the learned Additional District & Sessions Judge No.1, Bhilwara vide judgment dated 06.02.2019. Till date, he has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. Smt. Rekha, wife of the petitioner has moved an application addressing to the District Collector-cumChairman, District Parole Committee, Ajmer averring therein that conduct of his husband (convict-prisoner Nand Lal) had been exceedingly well in the jail premises and he was granted first parole by this Court for the period of 20 days vide order dated 18.05.2021, which he availed satisfactorily and surrendered back to the prison on due date. It is averred in the application that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole.

The said application is pending consideration before the District Collector-cumChairman, District Parole Committee, Ajmer, however, no order has been passed therein till date. Thus, the convict-prisoner preferred the instant writ petition before this Court, through his wife Smt. Rekha.” As it turned out, the Bench then observes in the next para that, “Shri Anil Joshi, learned Additional Advocate-cum-Government Advocate has filed reply on behalf of the respondent State of Rajasthan. It is specifically averred in the reply that the case of the convict-prisoner does not fall within the ambit of Rule 11 of the Rules of 2021 and thus, grant of emergent parole has been objected. However, he too is not in a position to rebut the fact that work and conduct of the convict-prisoner has been satisfactory during his confinement in the prison.” In hindsight, the Bench then recalls that, “This Court vide order dated 10.03.2022 had directed learned AAG to instruct the police officials concerned to make an inquiry regarding family status of the convictprisoner and place the report on record. Shri Anil Joshi, learned AAG submitted a report as per which, Smt. Rekha is legally wedded wife of the petitioner and she is residing at her matrimonial home alongwith her in-laws.”                

Needless to say, the Bench then states that, “Heard learned counsel for the parties. Perused the material available on record. After given our thoughtful consideration to the submissions advanced at Bar, our observations are as under:- It is not disputed that the convict-prisoner is married with Smt. Rekha and the couple has no issue out of their wedlock since their marriage till date. Having progeny for the purpose of preservation of lineage, has been recognized through religious philosophies, the Indian culture and various judicial pronouncements.” Practically speaking, the Bench then concedes that, “As mentioned above, the right of progeny can be performed by conjugal association, the same has an effect of normalizing the convict and also helps to alter the behaviour of the convict-prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.”

As an aside, the Bench then also seeks to point out that, “Not only the humanitarian aspect as referred above, the right of progeny also finds mentioning in the religious scriptures and is mentioned in the literature available on various sites.” While dwelling on the religious angle in detail, the Bench then hastens to add that, “If we see the matter with the religious aspect; as per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. Scholars trace Garbhadhana rite to Vedic hymns, such as those in sections 8.35.10 through 8.35.12 of the Rigveda, where repeated prayers for progeny and prosperity are solemnized. Bestow upon us progeny and affluence. In Judaism, Christianity, and some other Abrahamic religions, the cultural mandate is the divine injunction found in Genesis 1:28, in which God, after having created the world and all in it, ascribes to humankind the tasks of filling, subduing, and ruling over the earth. The cultural mandate includes the sentence “Be fruitful and multiply and fill the Earth.” The cultural mandate was given to Adam and Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam. All the articles of CDHRI covered the five basic human rights mentioned in Maqasid I Shariah. The first main objective of Maqasid I Shariah is the completion of human’s necessity; in which protection of progeny (nasl) is the foremost purpose.” While dwelling on the sociological aspect, the Bench then envisages that, “Having referred to prevalent religious philosophies, now we come to the sociological aspect of the right of progeny and preservation of lineage. As regards the right of convict is concerned, connecting the same with Hindu philosophy, there are four Purusharths, object of human pursuit which refer to four proper goals or aims of a human life.

The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization). When a convict is suffering to live in prison, he/she is deprived to perform the above mentioned purusharths, among them, 3 of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/ exercise/pursue the fourth Purushartha, i.e. Kama, the convict is dependent on his/ her spouse in case he/she is married.” On a pragmatic note, the Bench then while dwelling on spouse condition minces no words to unequivocally observe that, “At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her.” While dwelling on pitrarin, the Bench then underscores holding that, “Hindu philosophy also advocates the importance of pitrarin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt.”

Be it noted, the Bench while dwelling on legal aspect on a candid note then holds that, “Now coming to the legal aspect of the matter at hand, Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also. The Supreme Court in the case of D. Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh and Others AIR 1974 SC 2092 declared that convicts cannot be denied the protection of fundamental rights which they otherwise possess, merely because of their conviction.” Quite pertinently, the Bench then while referring to a relevant case law opined that, “In the case of Jasvir Singh and Another v. State of Punjab 2015 Cri LJ 2282, The case involved important questions of law regarding conjugal rights of the prisoners. The core issues in the case were (i) whether the right to procreation survives incarceration, and if so, whether such a right is traceable within our Constitutional framework? (ii) Whether penological interest of the State permits or ought to permit creation of facilities for the exercise of right to procreation during incarceration? (iii) Whether ‘right to life’ and ‘personal liberty’ guaranteed under Article 21 of the Constitution include the right of convicts or jail inmates to have conjugal visits or artificial insemination (in alternate)? And (iv) If question No. (iii) is answered in the affirmative, whether all categories of convicts are entitled to such rights?” I n r e t r o s p e c t , t h e Bench then laid bare that, “The court had ruled that the “right to procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution”. It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to “formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities”.”

Most commendably and also most significantly, the Bench then holds that, “In view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are affected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse. Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also found apposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her right to get progeny.” As a corollary, the Bench then enunciates that, “As an upshot of the observations made herein above, we are of the considered view that though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological a n d h u m a n i t a r i a n aspects, coupled with the fundamental right g u a r a n t e e d b y t h e Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.” Finally, the Bench then concludes by holding that, “Accordingly, the instant writ petition is allowed.

The convict-petitioner Nand Lal S/o Shri Arjun Lal shall be released on emergent parole for a period of fifteen days from the date of his release provided he furnishes a personal bond in the sum of Rs 50,000 along with two surety bonds of Rs 25,000 each to the satisfaction of the Superintendent, Central Jail, Ajmer on usual terms and conditions. The Superintendent, Central Jail, Ajmer shall be at liberty to impose other adequate and reasonable conditions to ensure return of the convict-prisoner to the custody after availing the parole. His term of parole shall be computed from the date of his actual release. The parole writ petition is allowed accordingly.”            

In sum, the Rajasthan High Court has minced no words to hold that denial to prisoner to perform conjugal relation for progeny would adversely affect rights of his wife. Keeping this in view, the Rajasthan High Court granted 15 days parole to life convict. It is a very pragmatic, purpose driven and practical judgment which has taken great care to ensure that the rights of the wife is safeguarded which is quite ostensible also even if we take a cursory look at it. It merits no reiteration that all the courts must always in similar such cases try to emulate such purpose driven judgments which have a great impact on the rights of the wife who has to practically undergo so much of sufferings all by herself! There can be just no denying it!

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Legally Speaking

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

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Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

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