Jharkhand High Court

Anugrah Narayan Prasad vs The State Of Jharkhand Through Its ... on 20 January, 2021

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P.(S) No. 3521 of 2015
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Anugrah Narayan Prasad ..... Petitioner Versus

1. The State of Jharkhand through its Chief Secretary, having its Office at Project Building, P.S.-Jagarnathpur, P.O.- Dhurwa, District-Ranchi.

2. The Principal Secretary, Rural Development Department, Government of Jharkhand, Project Building, P.O.-Dhurwa, P.S.-Jagannathpur, District-Ranchi.

3. The Special Secretary, Rural Development Department, Government of Jharkhand, Project Building, P.O.-Dhurwa, P.S.-Jagannathpur, District-Ranchi.

4. The Principal Secretary, Water Resources Department Govt. of Jharkhand, Nepal House, P.O. & P.S.-Doranda Town, District- Ranchi. ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. D.K.Dubey, Advocate For the Respondents : Mr. Abhijeet Kr., A.C. to G.A.-III

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10/Dated: 20th January, 2021 Heard through V.C.

2. The instant writ application has been preferred by

the petitioner praying for a direction upon the respondent-

authorities to release post-retiral benefits i.e. the

MACP/Due Increments/Gratuity/Earned Leave/Pension

etc., pursuant to his retirement on 31.01.2015.

3. Mr. D. K. Dubey, learned counsel for the petitioner

submits that he initially joined as Junior Engineer on

07.07.1979 and was promoted to the post of Assistant

Engineer. In the year 2013 in connection with a

departmental proceeding, the disciplinary authority vide its

order dated 13.11.2013 awarded punishment of censure

with a further direction that the decision with regard to

salary of the petitioner for the period of suspension would

be taken after the decision in the criminal case. The

petitioner has challenged the said order passed by the

disciplinary authority in W.P.(S) No. 686 of 2014.

4. Learned counsel further submits that the Deputy

Secretary Rural Development Department informed the

other authorities that no proceeding is pending against this

petitioner and finally he retired on 31.01.2015.

5. Learned counsel further submits that the entire no

dues certificate issued to the petitioner has been submitted

by him; however, he has not been paid the retiral benefits

etc. It is specific averment in the writ application that no

departmental proceeding is pending against this petitioner.

6. Learned counsel for the respondent-State submits

that as per Memo No. 194 dated 16.06.2008 of Finance

Department, if there is any criminal case pending against

the Government servant post his retirement then instead of

full pension it is to be sanctioned provisionally. Further as

per Memo No. 115 dated 29.03.2010, pension can be

stopped or taken back only after conclusion of the

departmental proceeding against him. Since a criminal case

is still pending against this petitioner before the competent

court, the pension and gratuity has been withheld.

7. In reply to the aforesaid contention of learned

counsel for the petitioner, Mr. Dubey submits that unless

there is any force of law, the pension and/or gratuity

cannot be withheld only due to pendency of a case. He

further submits that these things are earned by long

continueus and unblemished service and as per the Hon'ble

Apex Court as held in the case of State of Jharkhand and

others Vs. Jitendra kumar Srivastava and Another, as

reported in (2013) 3 JLJR SC 537, pension and gratuity is

in the nature of property and right to this property cannot

be taken away without the due process of law. He

contended that when it is an admitted fact that no

departmental proceeding is pending then there is no ground

for withholding the payment. He further submits that so far

as the punishment which was awarded to this petitioner is

concerned, the same is subject matter of W.P.(S) No. 686 of

2014 and that too is only of censure. As such, the

respondent may be directed to release the pensionary

benefits along with statutory interest.

8. Having heard learned counsel for the parties and

after going through the averments made in the respective

affidavits it clearly transpires from the letter dated

06.01.2015 (Annexure-2) that no departmental proceeding

is pending against this petitioner. The Hon'ble Apex Court

in the case of Jitendra Srivastava (supra) has held at

para 7 and 13 as under;

"7. It is an accepted position that gratuity and pension

are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un- blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:

"The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?

What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in DeokiNandan Prasad v. State of Bihar and Ors. [1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and

other allied maters 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 reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) II LLJ 377 SC".

13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property"."

9. In the said judgment it has also been held that

withholding of pension or gratuity during pendency of the

departmental proceeding or judicial proceeding is not

provided under Rule 43 B. In this regard para 11 of the

aforesaid judgment is quoted herein below.

"11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in

the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending."

It has also been laid down in the said judgment

that Executive instructions do not have statutory character

and they are not law within the meaning of Article 300 A of

Constitution of India and cannot supplement statutory

rules. In this regard para 15 of the aforesaid judgment is

quoted herein below;

"15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."

10. By going through the ratio held in the aforesaid

judgment it clearly transpires that in the facts and

circumstances of the case the respondents were not

authorized for withholding the pension or gratuity or other

benefits. The reliance of the Respondents with regard to the

Memo No. 194 dated 16.06.2008 & Memo No. 115 dated

29.03.2010 of Finance Department is non-est in the eye of

law in view of the law laid down in the aforesaid judgment

that Executive instructions do not have statutory character

and they are not law within the meaning of Article 300 A of

Constitution of India and cannot supplement statutory

rules.