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: http://www.thehindu.com/news/national/retirement-benefits-cant-be-withheld-pending-enquiry/article5035711.ece