Punjab-Haryana High Court
Ravinder Kumar Sharma vs Uttar Haryana Bijli Vitran Nigam ... on 2 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:044528
CWP- 26082-2021 (O&M) 1 2024:PHHC:044528
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
261 CWP-26082-2021 (O&M)
Date of Decision:02.04.2024
Ravinder Kumar Sharma
......Petitioner
Versus
Uttar Haryana Bijli Vitran Nigam Limited and others
......Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Ashutosh Kaushik, Advocate for the petitioner.
Mr. Vikas Barala, Advocate for the respondents.
*****
JASGURPREET SINGH PURI J.(Oral)
1. The present petition has been filed under Articles 226/227 of
the Constitution of India seeking issuance of a writ in the nature of
Mandamus directing the respondents to grant the petitioner interest @18%
per annum on delayed payments from the date of his retirement
i.e.31.12.2016 till the date of actual disbursement with a further prayer to
quash order dated 12.06.2019 (Annexure P-7).
2. The short facts involved in the present case are that the
petitioner was working as a Storemate in the office of respondents-Uttar
Haryana Bijli Vitran Nigam Limited (hereinafter to be referred to as
'Nigam') and he retired on 31.12.2016 on attaining the age of
superannuation. However, about two months prior to his retirement, he
was issued a show cause notice dated 10.10.2016 vide Annexure P-1 on
the allegations that the petitioner had issued 25 KVS 33 nos. transformers
out of 42 nos. to the OP Circle Karnal in one day which was out of his
jurisdiction and ignoring the demand of OP Division UHBVN Shahabad.
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When the petitioner retired an order dated 23.12.2016 vide Annexure P-3
was issued in which it was mentioned that the petitioner retires from the
Nigam subject to awaited NDCs and pending show cause notice/enquiry.
However, vide order dated 28.09.2018 (Annexure P-2), the aforesaid
show cause notice was dropped considering the reply submitted by the
petitioner and on the basis of the comments offered by the Xen concerned
in this regard.
3. Since no retiral benefits were paid to the petitioner at all, he
earlier filed a writ petition before this Court bearing No.CWP-1654-2019
decided on 21.01.2019 vide Annexure P-6 and Coordinate Bench of this
Court disposed of the aforesaid petition with a direction to the
respondents to pass an appropriate speaking order on the representations
of the petitioner within a period of three months and it was also directed
that in case it is found that the petitioner is entitled to any monetary
benefits after the decision of the representation, the same should also be
paid to him within three months thereafter.
4. However, before passing any speaking order, in pursuance of
the aforesaid directions passed by the Coordinate Bench of this Court, the
respondents rather issued a charge-sheet to the petitioner on 17.05.2019
vide Annexure P-8 and when the enquiry was conducted in the aforesaid
charge-sheet then the charges were not proved against the petitioner and
consequently the charges-sheet was dropped and the matter was closed.
Thereafter, the authorities were requested to clear dues of Rs.2,40,300/-
since the charge-sheet was closed vide Annexure P-9. However, before
closing the charge-sheet, the impugned order dated 12.06.2019 Annexure
P-7 was passed in pursuance of the directions passed by a Coordinate
Bench of this Court wherein it has been so stated in detail that some of the
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payments have been released to the petitioner at different points of time
but reason for withholding the pension and pensionary benefits were
because of the pendency of the aforesaid show cause notice and
chargehseet and also reference has been made to Rule 12 of Haryana
Civil Services (Pension) Rules, 2016 (hereinafter to be referred to as
'Rule') wherein as per the impugned order the power vested in the
authority to withhold the pensionary benefits.
5. After the dropping of the aforesaid chargesheet vide
Annexure P-9 an amount of Rs.2,40,300/- which was withheld from the
gratuity of the petitioner, was paid to him. In totality the petitioner retired
on 31.12.2016 but on different points of time different payments have
been paid to him and as of today as per learned counsel for the petitioner,
all the payments have been made to the petitioner and according to him he
is entitled for interest on the delayed payments as the same have been
with-held without any justifiable basis.
6. Learned counsel for the petitioner submitted that subject
matter of the present petition now is only to the extent of grant interest on
the delayed payments of pension and pensionary benefits of the petitioner
in view of the Full Bench judgement of A.S. Randhawa vs. State of
Punjab 1997 (3) SCT 468. He further submitted that the dates on which
different respective payments were made, have been so depicted in para
15 of the writ petition in a tabulated form which is reproduced as under:-
Sr. Particulars Due date Paid on Amout
No.
1 Salary for July July and 13.08.2017 vide Rs.1,02,517/-
to August 2016 August 2016 cheque
No.758405
2. DCRG 01.01.2017 07.06.2019 Rs.5,29,290/-
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2A DCRG balance 01.01.2017 30.08.2019 Rs.76959/-
3. Balance DCRG 01.01.2017 08.07.2021 Rs.2,40,300/-
4. Commutation of 01.01.2017 07.06.2019 Rs.9,89,179/-
Pension
5. Arrears of pay 31.12.2016 09.01.2019 Rs.98,287/-
fixation re-leave
encashment
6. Arrears of pay 31.12.2016 06.12.2018 Rs.87,396/-
fixation
w.e.f.01.01.2016
-31.12.2016 in
new pay scale
and washing
allowance
7. GPF Final 01.01.2017 08.11.2017 Rs.4,45,039/-
payment
8. Provisional 01.01.2017 After 15 months Rs. 3,94,599/-
Pension 100% 24 days from
@ Rs.25150/- retirement/due
per month date
Total Rs.28,86,607/-
7. Learned counsel for the petitioner further submitted that
when petitioner retired on 31.12.2016, there were no disciplinary or
judicial proceedings against the petitioner and on the date when he retired,
he was entitled for the entire pension and pensionary benefits since there
was nothing pending against the petitioner except for one show cause
notice vide Annexure P-1. He further submitted that mere pendency of a
show cause notice cannot deprive the petitioner for being granted the
pension and pensionary benefits since the same cannot be termed as
initiation of disciplinary proceedings against the petitioner. Even
otherwise also the aforesaid show cause notice was dropped on its own
merits on the basis of the reply filed by the petitioner and the comments of
the XEN concerned, which is so clear from the order dated 28.09.2018
(Annexure P-2) by which the show cause notice was dropped. He further
submitted that so far as the condition which was imposed in the order of
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retirement vide Annexure P-3 i.e. the retirement is subject to the outcome
of the show cause notice is concerned, the same is not enforceable in law.
The condition if so imposed can be imposed only under a provision of law
but no superficial condition can be imposed and therefore is liable to be
ignored. He again submitted that the pendency of any show cause notice
against the petitioner is of no significance since there was no initiation of
any disciplinary proceedings under the law.
8. He further submitted that so far as the chargesheet dated
17.05.2019 (Annexure P-8) is concerned, the same was issued to the
petitioner after the issuance of directions by a Coordinate Bench of this
Court to decide the representation of the petitioner and instead of deciding
the representation, a charge-sheet was issued in which the Nigam
conducted an enquiry and it was found that the charges are not proved
against the petitioner and therefore charge-sheet were dropped and
therefore in that matter even the pendency of charge-sheet which was
otherwise issued after about three years of his retirement is again of no
significance and the petitioner was entitled for the grant of pension and
pensionary benefits immediately after the retirement. He further
submitted that the pension and pensionary benefits/retirement benefits
were paid to the petitioner in different intervals which have already been
reproduced as above and since there was no justification at all for
withholding the pensionary benefits, the petitioner is entitled for the grant
of interest.
9. Learned counsel for petitioner has also drawn the attention of
this Court to Rule 12 of the Haryana Civil Services (Pension) Rules 2016
which has been so referred in the impugned order on the basis of which
the pensionary benefits were with-held. He further submitted that even as
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per the aforesaid rule the retiral benefits can be with-held only when there
is a pendency of any disciplinary or judicial proceedings which is so clear
from the language used therein. Rule 12 of the Haryana Civil Services
(Pension) Rules 2016 is reproduced as under:-
12. Right of appointing authority to withhold or
withdraw pension:―
(1) The Appointing Authority reserve 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 to make good of the whole or part of any
pecuniary loss, if any, caused to Government, if the pensioner is
found in departmental or judicial proceedings, to have─
(a) been guilty of grave misconduct or negligence committed
by him but there is no pecuniary loss to Government; or
(b) caused pecuniary loss to Government by misconduct or
negligence; during his service including service rendered on re-
employment after retirement:
Provided that the Haryana Public Service Commission or
Haryana Staff Selection Commission or any other approved
Recruitment Agency, as the case may be, shall be consulted before
final orders are passed:
Provided further that where a part of pension is withheld or
withdrawn, the amount of such pension shall not be reduced below
the amount of minimum pension prescribed from time to time.
10. While referring to the aforesaid rule, learned counsel for the
petitioner submitted that it is crystal clear that a right is vested in the
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authorities to with-hold either part of the pension or retiral benefits only
when there are departmental or judicial proceedings pending against any
employee whereas in the present case at the time of the retirement there
were neither any departmental proceedings nor any judicial proceedings
pending against the petitioner and therefore there was no occasion for the
respondents-Nigam to have with-held the pension and pensionary
benefits. Even as per Rule 12 (c ), gratuity and the commuted value of
pension can be with-held only if there are departmental and judicial
proceedings. Apart from the above, even when the aforesaid with-holding
is to be done during the pendency of the departmental or judicial
proceedings then the same can only be done when there is a pecuniary
loss or a misconduct or negligence is proved whereas in the present case
nothing has been done at all and therefore the entire action of the
respondents-Nigam in withholding the aforesaid entire benefits was
without jurisdiction and without authority of law.
11. On the other hand, learned counsel appearing on behalf of the
respondents submitted that it is not in dispute that while the petitioner was
in service, there were no disciplinary proceedings against the petitioner
nor any charge-sheet was issued against the petitioner. He further
submitted that one chargesheet was issued against the petitioner after his
retirement and later on it was dropped and the petitioner was paid all the
retiral benefits. He also submitted that respondents-Nigam was within its
powers in withholding the retiral benefits.
12. I have heard learned counsel for the parties.
13. After hearing learned counsel for the parties, it is clear that
when the petitioner retired on 31.12.2016 then at that point of time there
were no disciplinary or judicial proceedings pending against him. The
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mere pendency of one show cause notice which was issued to the
petitioner vide Annexure P-1 about two months prior to his retirement
cannot be termed as any disciplinary or judicial proceedings since it is a
settled law that mere issuance of a show cause notice is not an initiation of
any disciplinary proceedings because the disciplinary proceedings
commence with the issuance of a charge-sheet which has not been done in
the present case. Therefore, at the time when the petitioner retired there
was nothing against him and as such he was entitled for the entire pension
and pensionary benefits there and then but the same was not paid to the
petitioner and different benefits were paid at different stages as so
reproduced by the petitioner in para No.15 of the writ petition.
14 So far as the charge-sheet against the petitioner is concerned,
the same was issued after about three years of his retirement and after the
issuance of direction by a Coordinate Bench of this Court to decide the
representation of the petitioner but the aforesaid charge-sheet was dropped
and even the charges are stated to be not proved during the enquiry and
therefore that also would not become any reason for delay in
disbursement of the pension and pensionary benefits to the petitioner. So
far as the applicability of Rule 12 is concerned, a perusal of the same
would show very clearly that withholding of the pension and pensionary
benefits can be done only when there are judicial or disciplinary
proceedings against an employee which was not the case in the present
matter and therefore the entire action of the respondents-Nigam in with-
holding the pension and pensionary benefits of the petitioner is absolutely
illegal and without the authority of law.
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15. The law with regard to the right to receive the pension and
pensionary benefits is no longer res-integra and pension and pensionary
benefits are not a bounty of the State and the State does not do any charity
by giving pension and pensionary benefits. Right of receiving pension
and pensionary benefits is rather a Right to Property which is a
Constitutional Right under Article 300-A of the Constitution of India and
a person can only be deprived of his Right to Property with an authority of
law whereas in the present case the deprivation has been done without the
authority of law. Way back in the year 1971, a Constitution Bench of
Hon'ble Supreme Court in "Deokinandan Prasad Vs. State of Bihar",
1971(2) SCC 330, held that pension is not a bounty of the State and is
rather a Fundamental Right under Article 31(1) of the Constitution of
India. However, later on by virtue of 44th Amendment of the Constitution
of India, Right to Property became a Constitutional Right under Article
300-A of the Constitution of India instead of a Fundamental 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 Punj & Har 278. 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
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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 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
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property, observing "it is obvious that a right to sum of
money is property".
16. Thereafter, in "State of Kerala Vs. M. Padmanabhan
Nair", AIR 1985 Supreme Court 356, the Hon'ble Supreme Court
observed that pension and gratuity are no longer any bounty to be
distributed by the Government to its employees on their retirement but are
valuable rights and property, in their hands. The aforesaid authoritative
law was thereafter reiterated by the Hon'ble Supreme Court in "Dr. Uma
Agrawal Vs. State of U.P. and another", 1999(2) SCT 347 (SC).
17. Thereafter, Hon'ble Supreme Court in another authoritative
judgment passed in "State of Jharkhand and others Vs. Jitendra Kumar
Srivastava and another", 2013(12) SCC 210 again discussed the entire
law pertaining to the valuable rights pertaining to the grant of pensionary
benefits. Para Nos.8 and 16 of the aforesaid judgment is 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 unblemished
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:
"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
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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 gratuitous 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 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
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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."
18. A Full Bench of this Court in "Dr. Ishar Singh Vs. State of
Punjab and another" 1993(3) PLR 499, also discussed the entire issue
with regard to right to withhold the pension and permissibility to withhold
the commutation of pension etc. was also discussed in detail wherein it
was observed that the entire pension has to be paid and it cannot be
withheld without any authority of law. The relevant portion is reproduced
as under:-
"81. As a result of the above discussion, I would
conclude as under:-
(i) The Government has no right to withhold or
postpone pension or the payment on account of commutation
of pension. The State is bound to release 100 per cent
pension at the time of superannuation, may be provisionally.
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(ii) The Government can withhold the gratuity
or other retiral benefits except pension or postpone payment
of the same during pendency of an enquiry.
(iii) Pension cannot be adversely affected before
a finding of guilt is returned.
(iv) The Government can initiate Departmental
enquiry after long lapse before retirement, rather there is no
limitation for initiating the departmental enquiry from the
date of incident before retirement. The delay and the
explanation for the same may reasonably be taken note of
keeping in view its likelihood to cause prejudice to the
delinquent if the enquiry is challenged in appropriate
proceedings.
(v) The enquiry proceedings cannot be quashed
solely on the ground of long pendency.
(vi) There is no effect of superannuation on the
pendency of the enquiry proceedings.
(vii) The recovery of the Government dues can
be made from gratuity or other retiral benefits only."
19. In a recent judgment passed by a Division Bench of this
Court in LPA No.340 of 2017 titled as "Gurcharan Singh Vs. State of
Punjab", decided on 08.02.2023, it was observed that in the absence of
any pecuniary loss, no recovery can be effected from the pensioner. The
relevant portion of the aforesaid judgment is reproduced as under:-
"In the absence of any finding of loss caused to the
Government either by the enquiry officer or by respondent
No.1, no recovery from pension could have been ordered as a
punitive measure by the respondents."
20. In "Tukaram Kana Joshi and others through Power of
Attorney Holder Vs. M.I.D.C. and others", 2013(1) SCC 353, the
Hon'ble Supreme Court observed that right to property is now considered
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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 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
639: 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)."
21. In view of the aforesaid facts and circumstances of the
present case, the present petition is allowed. The impugned order at
Annexure P-7 is hereby set aside. The respondents-Nigam are directed to
calculate the interest @6% per annum (simple) on the disbursement of the
pension and pensionary benefits to the petitioner. Since the benefits have
been disbursed to the petitioner on different heads on different dates, the
respondent No.2 shall pass a detailed order within a period of three
months from today by depicting different heads and different dates on
which respective payments were made to the petitioner and shall pay the
interest to the petitioner as aforesaid to be calculated from two months
immediately after the date of retirement of the petitioner till the date of
actual disbursement on respective heads.
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22. The entire exercise shall be completed within a period of
three months from today including the payment of interest to the
petitioner. In case the aforesaid amount is not paid to the petitioner within
a period of three months from today then the petitioner shall be entitled
for future rate of interest @ 9% per annum.
23. Since the action of the respondents-Nigam is totally illegal
and perverse which has affected the statutory and constitutional rights of
the petitioner, he shall also be entitled for costs which are assessed as
Rs.25,000/- (rupees twenty five thousand only) which shall also be paid to
the petitioner within a period of three months from today.
24. The present petition is allowed in the aforesaid terms.
(JASGURPREET SINGH PURI)
JUDGE
02.04.2024
shweta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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