Punjab-Haryana High Court
Surjit Kaur vs State Of Punjab And Ors on 29 April, 2023
Neutral Citation No:=2023:PHHC:061682
CWP-12383 of 2019 (O&M) -1- 2023:PHHC:061682
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
203 CWP-12383 of 2019 (O&M)
Date of Decision:29.04.2023
Surjit Kaur
....Petitioner
Versus
State of Punjab and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
****
Present: Mr. Ranjivan Singh, Advocate,
for the petitioner.
Ms. Ishma Randhawa, Addl. AG, Punjab
Mr. Sarthak Gupta, Advocate,
for respondents No.4 and 5.
****
JASGURPREET SINGH PURI, J. (Oral)
CM-7697-CWP-2022 and
CM-7698-CWP-2022
Vide this application, the applicant-petitioner is seeking permission to
place on record the accompanying application (CM-7698-CWP-2022) which is
filed for seeking direction to respondents No.4 and 5 to issue No Dues Certificate
alongwith Annexures A-1 to A-9.
For the reasons mentioned in the application, the same is allowed and
the accompanying application alongwith Annexures A-1 to A-9 are taken on
record, subject to all just exceptions.
Both the applications stand disposed of.
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CWP-12383 of 2019
1. The present petition has been filed under Articles 226/227 of the
Constitution of India seeking a writ in the nature of mandamus directing the
respondents to release/grant the benefit of family pension and other retiral benefits
including DCRG etc. under the provisions of the Punjab Civil Services Rules.
Factual Matrix
2. The brief facts of the present case are that the petitioner is a widow of
one Shri Gulzar Singh who was appointed in the State of Punjab in the Department
of Irrigation in the year 1984. Thereafter, on 19.08.2009 vide Annexure P-1 his
services were regularized by the State of Punjab. Thereafter, he was posted with
respondents No.4 and 5 i.e. the Bhakra Beas Management Board (BBMB) on
01.06.2010. While he was working in the aforesaid organization, the husband of
the petitioner unfortunately died on 21.08.2011. As per learned counsel for the
petitioner, the son of the petitioner was called by the BBMB to hand over the
charge and possession of the quarter in which the husband of the petitioner was
residing and the possession of the quarter was immediately handed over to the
BBMB on 13.10.2012 vide Annexure A-2. After the death of the husband of the
petitioner, the petitioner being widow was therefore entitled for grant of family
pension by the Punjab Government but the same was not paid to her. The husband
of the petitioner was regularized after 01.01.2004 and a Division Bench judgment
of this Court had already decided the issue with regard to the grant of old pension
scheme to those employees who were recruited prior to 01.01.2004 but
regularrised thereafter vide judgment Harbans Lal versus The State of Punjab
and others (CWP-2371 of 2010, date of decision 31.08.2010) Annexure P-8. The
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husband of the petitioner was also asked to deposit CPF so that the benefit of old
pension scheme can be conferred upon him and consequently vide Annexure P-7,
the petitioner deposited the CPF on 14.03.2014 so that the benefit of the old
pension scheme can be given in accordance with the judgment of Division Bench
of this Court in Harbans Lal's case (supra). However, still the family pension and
all the retiral benefits were not paid to the petitioner.
3. When the petitioner visited a number of times to the offices of the
State of Punjab and to the BBMB for release of family pension and pensionary
benefits, the BBMB vide Annexure A-3 dated 26.08.2019 after eight years wrote a
letter to the petitioner that there are certain objections from the office of the
Accountant General, Punjab and apart from the above, it was also stated in the
letter that the possession of the quarter which was allotted to her husband has still
not been handed over to the department and No Dues Certificate has not been
issued by the Estate Sub-Division and therefore it was required that the vacant
possession of the house was handed over so that No Dues Certificate may be
isused and further action can be taken for family pension case. Thereafter, vide
Annexure A-4 on 29.11.2019 another letter was written to the petitioner by the
BBMB by stating that the penalty of the quarter which was allotted to her husband
comes out to Rs.3,22,505/- for the unauthorised period from 22.08.2011 to
05.09.2019 and the petitioner was asked to deposit the aforesaid amount so that No
Dues Certificate be issued. This letter was based upon an earlier letter written by
the Additional Superintending Engineer, Municipal Board, BBMB, Sundernagar to
the Senior Executive Engineer dated 22.11.2019 (Annexure A-5) that an amount of
Rs.3,22,505/- be deducted from the arrears of the husband of the petitioner.
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Thereafter, the petitioner wrote a letter to the Senior Executive Engineer, BBMB,
Sundernagar vide Annexure A-7 dated 11.12.2019 by specifically stating that soon
after the death of her husband, they had locked the house, cut off the power and
the keys were submitted in the concerned office and therefore the penalty which is
sought to be so imposed should be waived off and pension case be forwarded to
the Irrigation Department, Punjab. However, the State of Punjab still insisted upon
the no objection to be received from the BBMB with regard to the objection raised
by the BBMB pertaining to the arrears and they did not grant any family pension to
the petitioner. Thereafter, the petitioner deposited the aforesaid amount with the
BBMB and thereafter the process of family pension started and learned counsel for
the petitioner submitted today that the family pension with arrears and retiral
benefits have now been paid to the petitioner on 01.03.2023 during the pendency
of the present petition.
Submission of learned counsel for the petitioner
4. The learned counsel for the petitioner submitted that the actions of
both the State of Punjab and that of BBMB were totally illegal, arbitrary and
violative of not only rules governing the family pension but was also violative of
Article 300-A and Article 21 of the Constitution of India. He submitted that
immediately after the death of the husband of the petitioner who was residing at
Sundarnagar alone whereas the entire family including the petitioner was residing
in Punjab were called at Sundarnagar for vacation of the quarter and on 13.10.2012
the entire quarter was vacated and keys were handed over to the department and
regarding which he has referred to Annexure A-2 in which even a certificate had
been issued under the signatures of the Electrician and Junior Engineers by
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preparing an inventory. He submitted that once the quarter itself was vacated by
the petitioner and her family especially when they were not even residing there,
then there was no occasion for the BBMB to have not sent the No Dues Certificate
to the State of Punjab so that the further family pension case may be processed. He
specifically submitted that neither any notice was issued to the petitioner thereafter
nor any proceedings for eviction were initiated under any provisions of law
including the Public Premises Act nor any other kind of intimation was sent to the
petitioner that the house has not been vacated because in fact the house already
stood vacated vide Annexure A-2. He submitted that when the petitioner was
running from pillar to post then suddenly after a period of eight years, letters were
written to the petitioner vide Annexure A-3 and Annexure A-4 for the first time in
which it was stated that No Dues Certificate could not be isused because of
unauthorised possession and a penalty of Rs.3,22,505/- was imposed without
making any assessment of the same in accordance with law. He submitted that
whenever there is any unauthorised possession of a Government house then
assessment has to be done by following a specific procedure and no officer of any
organization on its own, can straightway fix the amount of penalty. In the present
case no assessment procedure was carried out nor any notice in this was issued to
the petitioner.
5. He further submitted that the family pension and all the retiral benefits
were not paid to the petitioner even after a long period of time and the BBMB had
told the petitioner that it can be done only when she deposites the aforesaid
amount and therefore the petitioner had no option but to deposit the aforesaid
amount of Rs.3,22,505/- with the BBMB so that at least she could get her family
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pension and other retiral benefits to meet her requirements and that also after a
lapse of long time and therefore she was forced to deposit the aforesaid amount
which she deposited under protest. He submitted that after the same was deposited
on 18.07.2022, the matter was sent to the State of Punjab and thereafter, the State
of Punjab granted the family pension and pensionary benefits to the petitioner after
sanctioning the same on 17.10.2022 and the actual payment was made to the
petitioner on 01.03.2023.
6. Learned counsel for the petitioner submitted that the action of both the
State of Punjab and that of the BBMB was arbitrary and illegal. He submitted that
the action of the BBMB was without the authority of law because after a period of
eight years for the first time they wrote a letter to the petitioner for deposit of an
amount regarding which not even an assessment was made in accordance with law
and it was only a cover up operation and so far as the State of Punjab is concerned,
the husband of the petitioner was an employee of the State of Punjab and it was
the bounden duty of the State of Punjab to have released the family pension and
the retiral benefits to the petitioner immediately after the death of the husband of
the petitioner and so far as the objection taken by the State of Punjab that no dues
were not received from the BBMB, the same cannot be to the detriment to the
petitioner because it is only an inter-departmental communication which was
otherwise also without any basis and even otherwise also assumingly for the sake
of arguments, an amount of Rs.3,22,505/- was to be paid, then the entire family
pension and the pensionary benefits could not have been stopped with the result
that the petitioner being a widow had to face acute hardship especially during the
worse period of Covid-19 pandemic which she has seen without any money. He
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submitted that now since the family pension and the other retiral benefits have
been paid to the petitioner, the petitioner is entitled for the grant of interest on the
delayed payments in view of the law laid down by a Full Bench judgment of this
Court in A.S. Randhawa verus State of Punjab and others 1997(3) SCT 468
and also for the refund of the amount of Rs.3,22,505/- alongwith interest from the
BBMB since the BBMB was not authorised to charge the same as there was no
order by any competent authority under the law after making due assessment by
following due procedure for recovering the same and there is nothing in the reply
filed by the BBMB or on the record to suggest that as to how the assessment was
carried on. Even otherwise also, as per Annexure A-2, the petitioner had already
surrendered the house way back in the year 2012.
Submission by learned counsel for BBMB
7. On the other hand, Mr. Sarthak Gupta, learned counsel for
respondents No.4 and 5-BBMB has submitted that so far as the retiral benefits of
the husband of the petitioner pertaining to the grant of leave encashment and
gratuity for the period spent by the husband of the petitioner in the BBMB is
concerned, the same has already been paid to the petitioner in time and therefore
the BBMB was not liable for any delayed payments. He submitted that however so
far as the grant of No Objection to the State of Punjab for further family pension
and other benefits to be given by the State of Punjab is concerned, the husband of
the petitioner was residing in a quarter which was not vacated after the death of the
husband of the petitioner till the year 2019 and that was the reason as to why a
letter was written to the petitioner to deposit an amount of Rs.3,22,505/- for the
unauthorised occupancy of the house. He submitted that he has sought instructions
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from Sunny Bharti, Sr. XEN/Township, BBMB, Sundernagar who is present in the
Court, to state that it is correct that after the death of the husband of the petitioner,
no notice or any communication was sent to the petitioner or any other family
members for seeking vacation of the house and it is also correct that no
proceedings under the Public Premises Act or under any other process under the
law was initiated against the petitioner for making any assessment for unauthorised
possession. He however submitted that a calculation was made by a senior officer
of the BBMB on the basis of the average rent for the period from 22.08.2011 to
05.09.2019 and on the basis of the calculation the letters Annexure A-4 and A-5
were sent to the petitioner in the form of penalty rent. He further submitted that
one communication was sent to the State of Punjab vide Annexure R-4/3 dated
27.05.2019 which rather stated that the pension case is pending in their own office
and there was some clarification with regard to as to whether the pensionary
benefits should be granted to the employees who were regularised after 01.01.2004
or not. Learned counsel submitted that in view of the above, the BBMB cannot be
put at any fault for the delayed release of pensionary benefits by the State of
Punjab.
Submission by learned Additional Advocate General, Punjab
8. On the other hand, Ms. Ishma Randhawa, learned Addl. AG, Punjab
while referring to the reply filed by the State of Punjab submitted that the
petitioner was posted at BBMB where he served and died and after his death a No
Objection Certificate was required to be taken from the BBMB and the BBMB did
not send the No Dues Certificate to the State and that was one of the reasons as to
why there was a delay in the grant of family pension and the other retiral benefits
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to the petitioner by the State. She submitted that another reason for the delayed
amount is that the services of the petitioner were initially not pensionable because
he was earlier not on regular basis but he was regularised in the year 2009 vide
Annexure P-1. Thereafter, there is a judgment of a Division Bench of this Court in
Harbans Lal's case (supra) Annexure P-8 that those employees who were working
on temporary/work charge/ad hoc basis prior to the cut of date of 01.01.2004 but
they have been regularlized thereafter were entitled for the benefit of old pension
scheme on the deposit of the CPF. In compliance of the aforesaid judgment, the
CPF was deposited on 14.03.2014 vide Annexure P-7 and therefore to some extent
there was a delay on the part of the petitioner as well. She further submitted that
unless all the formalities including the No Objection Certificate from the BBMB
were cleared, the State could not have sanctioned the family pension or other
retiral benefits of the petitioner after 14.03.2014 and now when the petitioner had
deposited the aforesaid amount of Rs.3,22,505/- to the BBMB and the BBMB had
thereafter sent No Objection to the State of Punjab, the process was expedited and
the petitioner has been paid entire family pension alongwith arrears and all the
retiral benefits on 01.03.2023 and therefore no delay is attributable to the State of
Punjab.
Analysis of submissions
9. I have heard the learned counsel for the parties.
10. It is a case where the petitioner is a widow and her husband died on
21.08.2011 while he was posted in the BBMB at Sundernagar. The husband of the
petitioner was otherwise an employee of the State of Punjab in the Department of
Irrigation. After the death of the husband of the petitioner, the statutory benefits of
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family pension and the other retiral benefits were to be considered and paid by the
State of Punjab in accordance with law immediately. As per learned counsel for the
respondents, delay has been caused because of two reasons. Firstly, initially the
husband of the petitioner was not entitled for the grant of any pension because he
was not a regular employee but it was only after the passing of the judgment of a
Division Bench of this Court in Harbans Lal's case (supra) that he became entitled
subject to deposit of the CPF, but soon thereafter he died and therefore the CPF
was not deposited. However, the petitioner deposited the aforesaid CPF on
14.03.2014 vide Annexure P-7 and therefore on the face of it from the date of the
death of the husband of the petitioner till at least 14.03.2014 when the CPF was
deposited by the petitioner, she was not entitled for grant of pension.
11. The second reason for delay was that the BBMB did not give any No
Objection Certificate to the State of Punjab on the ground that when the husband
of the petitioner died, the quarter which he was having at Sundernagar was not
vacated by the petitioner and her family. However, a perusal of Annexure A-2
would show that rather a certificate in which there are signatures of the Electrician,
Commerical Sub-Division and Junior Engineer, Commercial Sub-Division,
BBMB, Sundernagar wherein an inventory Annexure A-2 has been prepared and it
is also stated therein that the follwing electrical goods existed in the house vacated
by Shri Gulzar Singh on 13.10.2012. In the reply filed by the BBMB, no mention
has been made with regard to the authenticity of the aforesaid certificate pertaining
to the record of electrical fitting. Although the aforesaid Annexure A-2 has been
appended alongwith the civil miscellaneous application, but no counter affidavit
has been filed by BBMB with regard to the same, although notice was issued with
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regard to the present application, but no reply to the application has been filed by
the BBMB. In addition to the above, it was for the first time after a period of eight
years from the death of the husband of the petitioner that the BBMB wrote letters
to the petitioner vide Annexures A-3 and A-4 dated 26.08.2019 and 29.11.2019,
respectively, by which it was stated that there was an unauthorised possession of
the house which has not been handed over to the department and due to which No
Dues Certificate has not been isused and the petitioner was asked to deposit
Rs.3,22,505/- on account of penalty rent. During the course of arguments, learned
counsel for the respondents No.4 and 5-BBMB has submitted on instructions from
the officer present in the Court that after 2012, no notice nor any kind of
proceedings were initiated against anybody including the petitioner or her family
members pertaining to the aforesaid quarter nor any kind of action was taken. It
was only for the first time after eight years from the death of the husband of the
petitioner that one letter was issued stating that the petitioner was liable to deposit
of the aforesaid amount. Even no assessment was made with regard to the penanl
rent or the ordinary rent, if any permissible under any provision of law but the
calculation appears to be made by an officer of the BBMB regarding which
nothing has been so stated either in the application or any other document or
affidavit filed by the BBMB. Therefore, the aforesaid two factors, firstly, that after
the year 2012 till 2019 there was no action taken by the BBMB. No notice or letter
was ever sent to the petitioner or to anybody else. Secondly, there has been no
assessment made by any lawful authority pertaining to the penalty rent. The action
of the BBMB was not justified to have asked the petitioner to deposit the aforesaid
amount of Rs.3.22,505/- which appears to be a condition for issuance of No Dues
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Certificate to the petitioner. Learned counsel for the petitioner during the course of
arugments submitted that the petitioner was compelled to deposit the aforesaid
amount under protest so that at least the family pension and the other retiral
benefits can be released by the State on the basis of No Dues Certificate to be
isused by the BBMB.
12. This Court is therefore of the view that the action of the BBMB in
withholding the No Dues Certificate of the petitioner for a long period of time was
absolutely arbitrary and illegal and without any authority of law. Furthermore,
action of the BBMB for asking the petitioner to deposit the aforesaid amount
without following any procedure or any assessment under any law and that too
after elapse of eight years was also not justified. The petitioner would therefore be
entitled for the refund of the aforesaid amount alongwith interest.
13. So far as the role of the State of Punjab is concerned, the husband of
the petitioner was an employee of the State of Punjab and was only posted at
BBMB and it is not in dispute that the family pension and the other retiral benefits
were to be paid by the State of Punjab and in fact they have now been paid by the
State of Punjab on 01.03.2023.
14. The first argument which raised by learned Addl. AG, Punjab was that
initially the husband of the petitioner was not entitled for the grant of family
pension because he was not a regular employee and thereafter in view of the
judgment of a Division Bench of this Court in Harbans Lal's case (supra), he was
entitled but subject to the condition that the CPF was to be deposited which was
ultimately deposited by the petitioner on 14.03.2014 becuase her husband died on
21.08.2011. Therefore, so far as this aspect is concerned, delay upto 14.03.2014
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for grant of family pension only is justified. However, so far as the grant of
gratuity, leave encashment and other retiral benefits are concerned, the same were
required to be paid to the petitioner who is a widow of Gulzar Singh immediately
on the death of Gulzar Singh which was also not paid to the petitioner and
therefore so far as the component of gratuity, leave encashment and other retiral
benefits except pension are concerned, there was a delay right from the time when
the death of the husband of the petitioner had occurred till the date of payment.
15. So far as the second argument of learned Addl. AG, Punjab that
because of non-supplying of No Dues Certificate by the BBMB, the family
pension and the other retiral benefits could not have been granted is concerned, the
same is also not sustainable and it is totally unjustified in view of the fact that the
husband of the petitioner was an employee of the State of Punjab and it was the
bounden duty of the State of Punjab to have processed the case of family pension
and the other pensionary benefits promptly in accordance with law for which inter-
departmental communication cannot become a ground for delay in the pension and
the pensionary benefits. Even if assuming for the sake of arguments that some
amount of Rs.3,22,505/- was assumingly to be recovered from the petitioner, still
the entire amount of gratuity, leave encashment and family pension could not have
been withheld. Furthermore, there is nothing on record to show that any order has
been passed by any officer of the State of Punjab for withholding of the entire
amount. Apart from the above, even the action of the BBMB was totally unjustifed
for not granting the No Dues Certificate. In the result, it was only because of lack
of coordination or synchronization between the State of Punjab and the BBMB
which caused delay. Furthermore, there is nothing on the record or the reply filed
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by the State to show that any letter or communication was sent by the State of
Punjab to the petitioner for the removal of any objection but in fact the State of
Punjab chose to keep silent depending upon the outcome of the No Dues
Certificate of the BBMB.
16. India is a welfare State and its instrumentalities are required to take
effective steps in finalizing the pension matters and especially the family pension
as expeditiously as possible and it cannot be expected from the State or an
instrumentality of a State to keep silent and not even inform the person who is
entitled for the benefit of pension or family pension as to why it has not been paid.
Furthermore, it is a settled law that pension and pensionary benefits are not the
bounty of the State and duty is cast upon the State and its instrumentalities to pay
the same in accordance with law and in case there is any reason for withholding or
forfeiting the same, then a proper procedure has to be followed in accordance with
the domain of the statutory provisions contained under the Rules. Under the
Punjab Civil Services Rules, there is a specific provision for withholding or
forfeiting of pension or a part of pension under Rule 2.2 of Vol.II of the Punjab
Civil Services Rules. In the present case, the aforesaid provision has not been
invoked nor any order has been passed by any authority for withholding or
forfieting any family pension and retiral benefits of the petitioner and therefore the
action of the State of Punjab is ex facie illegal and oppressive in nature.
17. Pension and pensionary benefits are not the bounty of the State and
rather it is a Constitutional Right under Article 300-A of the Constitution of India.
Way back in the year 1971, a Constitution Bench of the Hon'ble Supreme Court in
Deokinandan Prasad versus State of Bihar and others 1971(2) SCC 330 dealt
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with this issue and observed that the State cannot withhold the pension and
pensionary benefits without the authority of law even though at that point of time
the Right to Property was a Fundamental Right under Part-III of the Constitution
of India and thereafter with the amendment of the Constitution of India it became a
Constitutional Right. The relevant portion of the aforesaid judgment is reproduced
as under:-
"31. The matter again came up before a Full Bench of the
Punjab and Haryana High Court in K.R. Erry v. The State of Punjab,
ILR (1967)1 Punj and Har 278 (FB). The High Court had to consider
the nature of the right of an officer to get pension. The majority
quoted with approval the principles laid down in the two earlier
decisions of the same High Court, referred to above, and held that the
pension is not to be treated as a bounty payable on the sweet-will and
pleasure of the Government and the right to superannuation pension
including its amount is a valuable right vesting in a Government
servant. It was further held by the majority that even though an
opportunity had already been afforded to the officer on an earlier
occasion for showing cause against the imposition of penalty for
lapse or misconduct on his part and he has been found guilty,
nevertheless, when a cut is sought to be imposed in the quantum of
pension payable to an officer on the basis of misconduct already
proved against him, a further opportunity to show cause in that
regard must be given to the officer. This view regarding the giving of
further opportunity was expressed by the learned Judges on the basis
of the relevant Punjab Civil Service Rules. But the learned Chief
Justice in his dissenting judgment was not prepared to agree with the
majority that under such circumstances a further opportunity should
be given to an officer when a reduction in the amount of pension
payable is made by the State. It is not necessary for us in the case on
hand, to consider the question whether before taking action by way of
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reducing or denying the pension on the basis of disciplinary action
already taken, a further notice to show cause should be given to an
officer. That question does not arise for consideration before us. Nor
are we concerned with the further question regarding the procedure,
if any, to be adopted by the authorities before reducing or
withholding the pension for the first time after the retirement of an
officer. Hence we express no opinion regarding the views expressed
by the majority and the minority Judges in the above Punjab High
Court decision, on this aspect. But we agree with the view of the
majority when it has approved its earlier decision that pension is not
a bounty payable on the sweet-will and pleasure of the Government
and that, on the other hand, the right to pension is a valuable right
vesting in a government servant.
32. This Court in State of Madhya Pradesh v. Ranojirao Shinde and
another, 1968-3 SCR 489 had to consider the question whether a
"cash grant" is "property" within the meaning of that expression in
Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it
was property, observing "it is obvious that a right to sum of money is
property."
18. The aforesaid Constitutional Bench judgment of the Hon'ble Supreme
Court was thereafter followed by a number of judgments and thereafter in State of
Jharkhand and others versus Jitendra Kumar Srivastava and another
2013(12) SCC 210 again the Hon'ble Supreme Court reiterated that pension and
pensionary benefits are not the bounty of the State and cannot be either withheld or
forfeited without authority of law. Para Nos.8 and 16 of the aforesaid judgment are
reproduced as under:-
"8. 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)
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1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his
inimitable style, in the following words:
"18. 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?
19. 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.
20. 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
Deoki Nandan 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
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Punjab and Another Vs. Iqbal Singh(6)".
It is thus hard earned benefit which accrues to an employee
and is in the nature of "property". This right to property cannot be
taken away without the due process of law as per the provisions of
Article 300-A of the Constitution of India.
16. The fact remains that there is an imprimatur to the legal
principle that the right to receive pension is recognized as a right in
"property". Article 300-A of the Constitution of India reads as
under:
"300-A Persons not to be deprived of property save by authority of
law.- No person shall be deprived of his property save by authority of
law."
Once we proceed on that premise, the answer to the question
posed by us in the beginning of this judgment becomes too obvious. A
person cannot be deprived of this pension without the authority of
law, which is the Constitutional mandate enshrined in Article 300-A
of the Constitution. It follows that attempt of the appellant to take
away a part of pension or gratuity or even leave encashment without
any statutory provision and under the umbrage of administrative
instruction cannot be countenanced."
19. The Hon'ble Supreme Court in Olga Tellis and others versus
Bombay Municipal Corporation 1985(3) SCC 545 rather observed that right to
life includes right to livelihood. The present is case of a widow where she has not
been granted any benefit to sustain her livelihood and therefore there has been an
infringment of Article 21 of the Constitution of India as well.
20. Another recent Constitutional Bench of the Hon'ble Supreme Court in
K. S. Puttaswamy (retired) and another versus Union of India and Another
(2019) 1 SCC 1 while dealing with the law relating to right to privacy again
discussed the domain of Article 21 of the Constitution of India whereby it was so
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observed that the right to life and livelihood under Article 21 of the Constitution of
India does not only operate as a negative command to the State but it also operates
as imposing positive obligation so that the State or its instrumentalities should
ensure that proper steps are taken for the protection of life and livelihood of its
subjects. In the present case, the State has kept silent and did not even inform the
petitioner with regard to the delay which was caused and because of the
departmental communication for want of No Objection Certificate, the delay has
been caused. Even the State of Punjab did not care to ask from the BBMB as to
whether the penalty if any was authorised by some law or not. The net result of the
same was that the petitioner being a widow had to wait for a long period of 12
years to enforce her rights so guranteed under Article 21 and 300-A of the
Constitution of India and under the Punjab Civil Services Rules which are
statutory in nature.
21. In Tukaram Kana Joshi and others through Power of Attorney
Holder versus M.I.D.C. and others 2013(1) SCC 353, the Hon'ble Supreme
Court observed that right to property is now considered to be not only a
Constitutional or a Statutory Right but also a human right. Para 9 of the aforesaid
judgment is reproduced as under:-
"9. The right to property is now considered to be not only a
constitutional or a statutory right but also a human right. Though, it
is not a basic feature of the Constitution or a fundamental right.
Human rights are considered to be in realm of individual rights, such
as the right to health, the right to livelihood, the right to shelter and
employment etc. Now however, human rights are gaining an even
greater multi faceted dimension. The right to property is considered
very much to be a part of such new dimension. (Vide: Lachhman
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Dass v. Jagat Ram, (2007) 10 SCC 448; Amarjit Singh v. State of
Punjab, (2010)10 SCC 43; (2010)4 SCC (Civ) 29, State of Madhya
Pradesh v. Narmada Bachao Andolan, (2011)7 SCC 875: AIR 2011
SC 1989, State of Haryana v. Mukesh Kumar, (2011)10 SCC 404:
(2012)3 SCC (Civ) 769: AIR 2012 SC 559 and Delhi Airtech
Services (P) Ltd. v. State of U.P., (2011)9 SCC 354: (2011)4 SCC
(Civ) 673: AIR 2012 SC 573)."
22. In view of the above, the present petition is partly allowed. The action
of both the State and the BBMB is totally illegal, arbitrary and rather oppressive in
nature. The petitioner shall be entitled for the grant of interest @6% per annum on
the following components:-
i) For the entire retiral benefits which accrued to the husband of
the petitioner except for the pension with effect from the date
of death of the husband of the petitioner till its actual payment
by the State of Punjab.
ii) On the family pension with effect from 14.03.2014 when the
petitioner had deposited the CPF till the date of its payment by
the State of Punjab.
iii) Refund of Rs.3,22,505/- shall be made by the BBMB to the
petitioner alongwith interest @6% per annum from the date of
deposit of the aforesaid amount by the petitioner to the BBMB
till the date of actual payment.
23. The aforesaid amount calculated by both the State of Punjab and the
BBMB be paid to the petitioner within a period of three months from today
alongwith interest @6% (simple). In case the aforesaid amount is not paid to the
petitioner within the aforesaid period of three months from today, then the
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petitioner shall be entitled for future rate of interest @9% per annum instead of 6%
per annum.
24. Considering the aforesaid facts and circumstances wherein a widow
had to run from pillar to post to seek justice and she has been granted family
pension and pensionary benefits after a delay of 12 years and she had to survive
for the aforesaid period of 12 years without her rightful benefits to which she was
entitled under the law, this Court is of the considered view that the petitioner is
also entitled for exemplary costs which are assessed as Rs.1,00,000/- (one lakh)
which shall be paid by the State of Punjab to the petitioner within the aforesaid
period of three months from today.
25. Liberty is granted to the State of Punjab to fix the responsibility of the
offical(s) concerned who caused delay and recover the costs from them strictly in
accordance with law and by following requisite procedure. Additionally, State of
Punjab may also enforce and claim from the BBMB but strictly following the
procedure and in accordance with law.
(JASGURPREET SINGH PURI)
JUDGE
April 29, 2023
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
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