Rajesh Kumar Pal vs State Of Uttarakhand And Others
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Uttarakhand High Court

Rajesh Kumar Pal vs State Of Uttarakhand And Others on 14 May, 2025

Author: Ravindra Maithani

Bench: Ravindra Maithani

     HIGH COURT OF UTTARAKHAND AT NAINITAL
                     Writ Petition No. 2227 of 2023 (S/S)

Rajesh Kumar Pal                                    ..........Petitioner
                                         Vs.
State of Uttarakhand and others                ............. Respondents
Present :   Dr. Udyog Shukla, Advocate for the petitioner.
            Mr. N.S. Pundir, Deputy Advocate General for the State/respondent
            nos.1 to 3.

                                   JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

By means of the instant petition, the petitioner seeks

directions to the respondent authorities so that the pension and

post retiral dues may be given to him.

2. At the very outset, learned counsel for the petitioner

would submit that the petitioner does not press his prayer no.ii at

this stage. The prayer no.ii is as below:-

"ii. to issue a writ order or direction in the nature of

mandamus commanding Opposite Parties/Respondents to

withdraw or cancel the chargesheets dated 24-08-2018

(Annexure no. 4) and chargesheet dated 15.04.2019

(Annexure no.8) in this writ petition."

3. Since, the prayer no.ii is not pressed, the petition is

dismissed qua prayer no.ii, as not pressed.

4. Heard learned counsel for the parties and perused the

record.

5. It is the case of the petitioner that he was appointed on

17.05.1989 as Mal Moharrir, Junior Clerk in District Haridwar. The

chronology of events that has been given by the petitioner are as

follows:-

i. On 11.07.2018, the petitioner was given a notice to explain the difference of recovery.

ii. On 18.07.2018, the petitioner submitted its reply, but thereafter, no further action was taken by the respondent authorities.

iii. On 23.01.2018, the preliminary inquiry was conducted by the Sub Divisional Magistrate, Bhagwanpur, District Haridwar, wherein it was clearly recorded that, "during this time period he was on accrued leave and medical leave in April- May due to a bike accident."

iv. On 24.08.2018, a charge-sheet was communicated to the petitioner for difference in the demand in various heads.

v. On 09.04.2021, at the time of promotion, the post of Administrative Officer, the petitioner once again explained the doubts raised by the respondent authorities in the show cause notice dated 11.07.2018.

vi. On 27.12.2018, another show cause notice was issued to the petitioner regarding the increase recovery shown by the petitioner of the Collection Amins for their regularization.

vii. On 27.01.2019, the petitioner gave a reply to the show cause notice dated 27.12.2018.

viii. On 15.04.2019, another charge-sheet was served on the petitioner for presentation of recovery details of the Collection Amins as per cropped bar.

ix. On 01.05.2019, the petitioner replied to the charge-sheet dated 15.04.2019.

x. On 31.01.2023, the petitioner retired from the post of Senior Clerk.

xi. It is the case of the petitioner that he has not been paid pension and many other retiral dues.

6. The respondent nos.2 and 3 have filed the counter

affidavits. According to the respondent no.3, disciplinary

proceedings based on two charge-sheets i.e. dated 24.04.2018 and

15.04.2019 are pending against the petitioner.

7. In response to the allegations of the petitioner that

departmental proceedings may not be kept pending for such a long,

the respondent no.3 replies that it is natural that it will take some

time due to detail investigation.

8. The respondent no.2 had, in fact, filed a brief counter

affidavit giving detail, as to how the sealed cover procedure was

adopted at the time of promotion.

9. The petitioner had further filed a rejoinder affidavit and

claimed that Rekha Tripathi, another similarly placed person has

been released pension on 21.08.2022, who was also undergoing

departmental proceedings.

10. Learned counsel for the petitioner would submit that

the petitioner has retired from service on 31.01.2023; it is more

than two years now; he has not been given pension, gratuity and

other benefits for no fault of the petitioner. He would submit that

merely based on the charge-sheets, which were filed long back, one

filed on 24.08.2018 and another on 15.04.2019, such action may

not be justified. He would submit that the pension is, in fact, an

earned asset of a person which cannot be withheld; a person may

not be deprived of his right to pension for delaying the

departmental proceedings.

11. In support of his contention, learned counsel for the

petitioner would submit that "Uttar Pradesh Pension Ke Mamlon Ka

(Prastutikaran, Nistaran or Bilamb Ka Parivarjan) Niyamawali,

1995" ("the 1995 Rules") gives six months time to complete

departmental proceedings.

12. In the instant case, it is argued that one charge-sheet

was served 07 years back and another six years back on the

petitioner, but till date, no action has been concluded on those

charge-sheets.

13. Learned counsel for the petitioner also refer to the

principle of law as laid down by the Division Bench of this Court in

WPSB No.5 of 2020, Lalit Mohan Arya Vs. State of Uttarakhand and

others. In para nos.6 and 7, this Court has observed as follows:-

"6. Hon'ble Apex Court has observed in a catena of cases that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that pension is a social welfare measure rendering socioeconomic justice to those who in the hay-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.

7. Even otherwise, an employee earns pension by the dint of long and continuous service and the same cannot be denied without the authority of law and without following the due process of law. Right to receive pension has been held to be the right to property protected under Article 300A of the Constitution even after the repeal of Article 31(1) by the 42nd constitutional amendment [State of West Bengal vs. Haresh C. Banarjee and others; (2006) 7 SCC 65]."

14. Learned State Counsel would submit that if

departmental proceedings are pending against a person, he may be

paid provisional pension and such order is passed on 13.05.2025.

15. Learned counsel for the petitioner has taken strong

objection to it. He would submit that during pendency of this

matter, yesterday the petitioner was given a telephonic call from the

respondent authorities, asking him to withdraw the writ petition, so

that the pension could be released. This Court leaves this chapter

at it.

16. The Court posed a question to the learned State

Counsel, as to how long the provisional pension shall be given? Can

pension be denied to an employee for more than two years after his

retirement on the ground that some charge-sheets were served on

him six years back. Learned State counsel would submit that there

is a provision for provisional pension.

17. Pension and gratuity are not something which given as

an award. It is earned. In the case of State of Jharkhand and others

Vs. Jitendra Kumar Srivastava and another, (2013)12 SCC, 210,

the Hon'ble Supreme Court has discussed this concept and

observed as follows:-

"8. It is an accepted position that gratuity and pension are not 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 v. Union of India [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] by D.A. Desai, J. who spoke for the Bench, in his inimitable style, in the following words: (SCC pp. 319-20, paras 18-20)

"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 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 Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : 1971 Supp SCR 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 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 reaffirmed in State of Punjab v. Iqbal Singh [(1976) 2 SCC 1 : 1976 SCC (L&S) 172 : (1976) 2 LLJ 377] ."

It is thus a 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."

18. It is true that there is a provision of provisional pension

in case, departmental proceedings are pending against some

person. But, the question is, for how long provisional pension shall

continue? Can it continue for 10 years, 15 years, 20 years or 05

years or more merely, on the ground that some charge-sheet was

served on the retired employee during the period when he was in

active service? Perhaps, it is not so. The 1995 Rules per se provides

that in case, departmental proceedings are pending against an

employee at the time of retirement it should be completed within six

months. Even within that six months the employee should be given

provisional pension.

19. In the instant matter, the act of the respondent

authorities cannot be appreciated at all. The petitioner was served

one charge-sheet on 24.08.2018. It is more than 07 years now and

another charge-sheet was served on him on 15.04.2019. It is more

than 06 years now. The State is not in a position to tell, as to what

happened in that enquiry? Has it ever progressed? The petitioner

retired on 31.01.2023. He has not been paid any pension;

provisional or final. During pendency of the petition, it was told by

learned State Counsel that order of provisional pension has been

passed yesterday. It is on record that one Rekha Tripathi, against

whom also, departmental proceedings were pending for more than

three years, she was released pension. This is clear by Annexure

Nos.2 and 3 to the rejoinder affidavit filed by the petitioner. The

petitioner cannot be denied the pension and retiral dues now based

on the charge-sheet which was served long back. Therefore, the

petition deserves to be allowed.

20. The petition is allowed.

21. The respondents are directed to release the pension,

retiral dues and other consequential benefits to the petitioner

forthwith.

(Ravindra Maithani, J.) 14.05.2025 Sanjay