Lal Sharan vs State Of U.P. And Others
2011 Latest Caselaw 3499 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court no.29
 
Civil Misc. Writ Petition No. 6937 of  2011
 
Lal Sharan
 
Vs.
 
State of U.P. and others
 

 
Hon'ble Vineet Saran,J.

Hon'ble Ran Vijai Singh,J.

Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents and have perused the record. Pleadings have been exchanged and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage.

The case of the petitioner is that he has retired from service as Executive Engineer, Irrigation Department of the State Government on 31.7.2010. It is contended that after retirement, though the petitioner has been paid certain amount like leave encashment etc., but pension and other retiral dues have not been paid merely on the ground of a communication dated 2.8.2010 made by the Commissioner, Allahabad Division, Allahabad to the State Government which was with regard to non-utilization of certain funds (not mis-utilization of funds) by the petitioner under some government scheme. On such ground, it was stated in the said letter that retiral dues be not paid to the petitioner. Challenging the said action of the respondents in not paying the pension and other retiral dues, this writ petition has been filed. A further prayer has also been made to quash the communication dated 2.8.2010 of the Commissioner, Allahabad Division, Allahabad whereby direction has been given that till any final orders are passed on such communication by the State Government the retiral dues of the petitioner be not paid.

It is contended by the learned counsel for the petitioner that payment of pension and other post retiral dues cannot be withheld merely because the respondents are intending to initiate the disciplinary proceedings. It is also submitted that although the Governor of the State under Regulation 351-A of Civil Services Regulations reserves his right of withholding or withdrawing the pension or any part of it but that is subject to the further conditions provided under the aforesaid regulation. In the submission of the learned counsel for the petitioner since those ingredients are not satisfied, therefore, the respondents are illegally withholding the pension of the petitioner which is not sustainable in the eye of law.

Refuting the submissions of the learned counsel for the petitioner, learned Standing Counsel has submitted that the previous conduct of the petitioner falls under the premise of misconduct and, therefore, the Government has every right to initiate the disciplinary proceeding even after his retirement and on this ground withholding of the pension is justified.

We have considered the rival submissions of the learned counsel for the parties and find that for deciding this controversy it would be necessary to see whether the petitioner has any vested right to get pension and other post retiral dues and as to whether the respondents are justified in withholding the pension without there being any proceeding pending prior to retirement or initiated after retirement. Here in the present case, it is not the case of respondents that the petitioner is not entitled to get the pension. In that situation it has to be analysed that if an employee has right to get pension and other retiral dues under the relevant rules governing the conditions of service, then whether it can be withheld.

In the case of Deoki Nandan Shan Vs. State of U.P. AIR 1971 S.C. 1409, the Apex Court ruled that the pension is a right and payment of it does not depend upon the discretion of the Government but is governed by the Rules and the Government servant coming within those rules is entitled to claim pension and grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount, having regard to service and other allied matters, that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was further affirmed by the Apex Court in the case of State of Punjab Vs. Iqbal Singh, AIR 1976 S.C. 667.

In the case of D.S. Nakara Vs. Union of India (1983) 1 SCC 305 the Apex Court has observed as under:

"From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. ........"

The ratio laid down in these cases had been subsequently followed by the Apex Court in series of its decisions including the case of Secretary, O.N.G.C. Limited vs. V.U.Warrier 2005(5) SCC 245.

The State Government has also issued a Government Order No.3-1713/Dus/983/89 on 28th July, 1989 in which, with a view to avoid the delay in payment of pension, it is provided that the service book is to be completed two years prior to the date of retirement.

Regulation 912 (E) of the Civil Service Regulations also provide that the retirement of a Government employee shall be published in the Gazette within a week from the date of his retirement. There is a complete mechanism for grant of post retiral dues at the earliest and in case there is any technical problem in payment of final pension, then there is a provision for provisional pension till the payment of final pension.

Although the Governor of the State has power of withholding or withdrawing the pension or any part of it but that is subject to the provisions contained in Regulation 351-A of the Civil Services Regulations which is reproduced below:-

"351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement:

Provided that -

(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment -

(i) shall not be instituted save with the sanction of the Governor.

(ii) Shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

(b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) or clause (a); and

(C) the Public Service Commission, U.P. shall be consulted before final orders are passed.

[Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission].

Explanation- For the purposes of this article -

(a) Departmental proceeding shall be deemed to have been instituted when the charges framed against the pension are issued to him or, if the officer has been placed under suspension from and earlier date, on such date; and

(b) judicial proceedings shall be deemed to have been instituted:

(i) in the case of criminal proceedings, on the date on which complaint is made, or a charge sheet is submitted, to a criminal court; and

(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court."

Regulation 351-A (a)(i) and (ii) provides that departmental proceedings cannot be instituted without sanction of the Governor. Further it cannot be instituted after four years of the event for which the disciplinary proceeding is proposed to be initiated.

It is not disputed that as on the date of retirement, or even till date, there is no enquiry whatsoever pending against the petitioner. After retirement, if any enquiry is to be held against an incumbent, it is only after the sanction is accorded by the Governor under Regulations 351-A of the Civil Services Regulations. The respondent-authorities cannot withhold pension and other retiral dues of a retired employee merely on the ground that there could be an enquiry initiated against a retired employee. This provision of seeking sanction from the Governor in the case of a retired employee has been made to safeguard the interest of the retired employees who could be harassed by the officials after their retirement.

Present case is a glaring example where the respondent-authorities seem to have deliberately harassed the petitioner by withholding payment of his pension and other retiral dues merely on some expected enquiry which could be conducted against the petitioner, even without seeking sanction from the Governor. It is noteworthy that even charges have not been framed against the petitioner till now and the request for giving the charge sheet was made on 4.3.2011 , i.e. during the pendency of this writ petition.

Here in the present case, as would appear from the discussions made hereinabove, right from the date of petitioner's retirement in the year 2010 the respondents are withholding the post retiral dues of the petitioner merely for the reason that they may want to obtain sanction of the Governor for initiating disciplinary proceedings against the petitioner. We are of the view that mere intention to obtain sanction for initiating disciplinary enquiry cannot be made basis for withholding post retiral dues unless sanction is granted and the disciplinary proceeding starts. Here it is not the case where the petitioner has retired during disciplinary proceedings.

In view of the foregoing discussions, we are of the view that the order/communication dated 2.8.2010 of the Commissioner, Allahabad Division, Allahabad in so far as it relates to withholding of pension and other retiral dues is totally illegal and arbitrary and cannot be sustained in the eye of law.

In the result, the writ petition succeeds and is allowed. The impugned order/communication dated 2.8.2010 of the Commissioner, Allahabad Division, Allahabad is hereby quashed. The respondent-authorities are directed to pay the entire retiral dues of the petitioner including up-to-date pension within six weeks from the date a certified copy of this order is produced before the competent authority, and pay further pension of the petitioner to him in accordance with law, regularly month by month. However, it is made clear that this order will not come in the way of the respondent-authorities to proceed to take any further steps in accordance with law.

 

 
dt. 4.8.2011
 
dps                                    
 
			       (Ran Vijai Singh, )                      (Vineet Saran, J)