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.”
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