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“Right to receive pension
is treated as right to property” says SC
In the absence of any
provision in the pension rules, a State government cannot withhold a part of
pension and/or gratuity during the pendency of departmental/criminal
proceedings, the Supreme Court has held.
Giving this ruling, a Bench
of Justices K.S. Radhakrishnan and A.S. Sikri said: “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. Right to
receive pension was treated as right to property.”
Writing the judgment,
Justice Sikri said: “According to Article 300 A of the Constitution, no person
shall be deprived of his property save by authority of law. A person cannot be
deprived of his pension without the authority of law. It follows that the
attempt of the appellant [in this case the Jharkhand government] 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.”
Referring to the contention
that executive instructions had been issued by the appellant government, the
Bench said: “It hardly needs to be emphasised that the executive instructions
do not have statutory character and, therefore, cannot be termed as ‘law’ within
the meaning of Article 300A of the Constitution. 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. 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.”
In the instant case,
respondent Jitendra Kumar Srivastava was sanctioned 90 per cent provisional
pension pending an enquiry. The remaining 10 per cent of his pension and salary
was withheld. He was also not paid leave encashment and gratuity. The Jharkhand
High Court directed the State government to release the withheld pension and
salary and other benefits. The present appeals are directed against this
judgment.
The Bench said: “We find
there is no merit in the instant appeals as the impugned order of the High
Court is without blemish. Accordingly, these appeals are dismissed with Rs.
10,000 costs each.”
Source : THE HINDU dated 19/8/2013
