Supreme Court of India
STATE OF JHARKHAND & ORS.versusJITENDRA KUMAR SRIVASTAVA & ANR.
- Citation
- 2013 INSC 536
- Decided
- 14 August 2013
- Disposal
- Dismissed
- Bench
- K S RADHAKRISHNAN
Holding
The State cannot withhold any part of pension, gratuity or leave encashment unless a statutory provision authorizes it, which is absent for pending proceedings.
Summary
The respondent, a former government employee, retired with a provisional pension but the State of Jharkhand withheld 10% of his pension, gratuity and leave encashment while criminal and departmental proceedings against him were pending. He filed writ petitions and the High Court ordered the release of the withheld amounts. The State appealed, arguing that administrative instructions allowed such withholding in the absence of a specific rule. The Supreme Court held that pension and gratuity are property rights protected by Article 300A of the Constitution and that Rule 43(b) of the Bihar Pension Rules permits withholding only after a finding of grave misconduct in concluded proceedings. No provision exists for withholding during pendency of proceedings, and executive circulars lack statutory force. Consequently, the State could not lawfully withhold any part of the pension or gratuity. The appeals were dismissed with costs.
Issues considered
- Whether the State can withhold a part of pension, gratuity or leave encashment during the pendency of departmental or criminal proceedings in the absence of a specific provision in the pension rules.
Legislation cited
- Bihar Pension Ruless. Rule 43(b)
- Constitution of Indias. Article 300A
Subjects
pensiongratuityproperty rightArticle 300Awithholdingdepartmental inquirycriminal proceedingsadministrative circularBihar Pension Rulesservice law
Judgment
[2013] 8 S.C.R. 177
STATE OF JHARKHAND & ORS. A
v.
JITENDRA KUMAR SRIVASTAVA & ANR.
(Civil Appeal No. 6770 of 2013)
AUGUST 14, 2013
B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Service Law - Pension - State Government withholding
a part of pension and/or gratuity during pendency of
departmental/ criminal proceedings, in apsence of any such C
provision in the Pension Rules - Propriety - Held: Gratuity and
pension are not bounties - It is hard earned benefit which
accrues to an employee and is in the nature of "property" -
This right to property cannot be taken away without due
process of law as per Article 300 A of the Constitution - D
Present case governed by Bihar Pension Rules, as
applicable to the State of Jharkhand - Rule 43(b) of the
Pension Rules made it clear that even after conclusion of
departmental inquiry, it was permissible for the Government
to withhold pension etc. only when a finding was recorded E
either in departmental inquiry or judicial proceedings that the
employee had committed grave misconduct in discharge of
his duty while in his office - No provision in the rules for
withholding of the pension/ gratuity when such departmental
proceedings or judicial proceedings was still pending - Attempt F
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 - Executive instructions are not having
statutory character and, therefore, cannot be termed as "Jaw" G
within the meaning of Article 300A - On basis of such a
circular, which is not having force of Jaw, the appellant cannot
withhold even a part of pension or gratuity - Bihar Pension
Rules, as applicable to the State of Jharkhand - r.43(b) -
Constitution of India, 1950 - Article 300A.
177 H
178 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Service Law - Pension - Held: Right to receive pension
is recognized as a right in ''property".
The question which arose for consideration in the
instant appeal was: whether, in the absence of any
provision in the Pension Rules, the State Government
8
can withhold a part of pension and/or gratuity during the
pendency of departmental/ criminal proceedings. The
High Court had answered this question, vide the
impugned judgment, in the negative and hence directed
the appellant to release the withheld dues to the
C respondent. Hence the present appeal by the State of
Jharkhand.
Dismissing the appeals, the Court
D HELD: 1.1. Gratuity and pension are not bounties. An
employee earns these benefits by dint of his long,
continuous, faithful ant:f un-blemished service. It is thus
hard earned benefit which accrues to an employee and
is in the nature of "property". This right to property
E cannot be taken away without the due process of law as
per the provisions of Article 300 A of the Constitution.
[Paras 7, 8] [184-A; 185-8-C]
1.2. The present case is admittedly governed by
Bihar Pension Rules, as applicable to the State of
F Jharkhand. Rule 43(b) of the said Pension Rules confers
power on the State Government to withhold or withdraw
a pension or part thereof under certain circumstances.
Reading of Rule 43{b) makes it abundantly clear that
even after the conclu'sion of the departmental inquiry, it
G is permissible for the Government to withhold pension
etc. ONLY when a finding is recorded either in
departmental inquH-y or judicial proceedings that the
employee had committed grave misconduct in the
cfischarge of his duty while in his office. There is no
H provision in the rules for withholding of the pension/
STATE OF JHARKHAND & ORS. v. JITENDRA 179
KUMAR SRIVASTAVA
gratuity when such departmental proceedings or judicial A
proceedings are still pending. [Paras 9, 11] [185-0; 187-
F-G]
1.3. Fact remains that there is an imprimatur to the
legal principle that the right to receive pension is
8
recognized as a right in "property". 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 C
and under the umbrage of administrative instruction
cannot be countenanced. The executive instructions are
not having statutory character and, therefore, cannot be
termed as "law" within the meaning of aforesaid Article
300A. On the basis of such a circular, which is not having D
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 E
different. [Paras 13, 14 & 15] [192-0-E, G-H; 193-A-B]
Sant Ram Sharma vs. Union of India 1968 (1) SCR 111
- held inapplicable.
D.S. Nakara and Ors. vs. Union of India (1983) 1 SCC F
305: 1983 (2) SCR 165; Deokinandan Prasad vs. State of
Bihar (1971) 2 SCC 330: 1971 (0) Suppl. SCR 634 and State
of West Bengal vs. Haresh C. Bane!jee and Ors. (2006) 7
sec 651: 2006 (5) Suppl. SCR 620 - relied on.
G
Dr. Dudh Nath Pandey vs. State of Jharkhand and Ors.
2007 (4) JCR 1 - referred to.
Case Law Reference:
2007 (4) JCR 1 referred to Para 4 H
180 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 1968 (1) SCR 111 held inapplicable Para 5
1983 (2) SCR 165 relied on Para 7
1971 (0) Suppl. SCR 634 relied on Para 12
2006 (5) Suppl. SCR 620 relied on Para 13
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6770 of 2013.
From the Judgment and Order dated 31.10.2007 of the
c High Court of Jharkhand at Ranchi in LP.A No. 678 of 2005.
WITH
C.A. No. 6771 of 2013.
0 Amarendra Sharma, Anil K. Jha, Priyanka Tyagi for the
Appellants.
J.S. Attri, Gaurav Sharma, B.K. Sharma, Priyanka
Bharihoke, Sushma Suri, Rajiv Shankar Dvivedi for the
Respondents.
E
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. Leave granted.
2. Crisp and short question which arises for consideration
F in these cases is as to whether, in the absence of any provision
in the Pension Rules, the State Government can withhold a part
of pension and/or gratuity during the pendency of departmental/
criminal proceedings? The High Court has answered this
question, vide the impugned judgment, in the negative and
G hence directed the appellant to release the withheld dues to the
respondent. Not happy with this outcome, the State of
Jharkhand has preferred this appeal.
3. For the sake of convenience we will gather the facts from
H Civil Appeal arising out of SLP(Civil) No. 1427 of 2009. Only
STATE OF JHARKHAND & ORS. v. JITENDRA 181
KUMAR SRIVASTAVA [A.K. SIKRI, J.]
facts which need to be noted, giving rise to the aforesaid A
questions of law, are the following:
The respondent was working in the Department of Animal
Husbandry and Fisheries. He joined the said Department in the
Government of Bihar on 2.11.1966. On 16.4.1996, two cases B
were registered against him under various Sections of the
Indian Penal Code as well as Prevention of Corruption Act,
alleging serious financial irregularities during the years 1990-
1991, 1991-1992 when he was posted as Artificial Insemination
Officer, Ranchi. On promulgation of the Bihar Reorganisation C
Act, 2000, State of Jharkhand (Appellant herein) came into
existence and the Respondent became the employee of the
appellant State. Prosecution, in respect of the aforesaid two
criminal cases against the respondent is pending. On 30th
January, 2002, the appellant also ordered initiation of
disciplinary action against him. While these proceedings were D
still pending, on attaining the age of superannuation, the
respondent retired from the post of Artificial Insemination
Officer, Ranchi on 31.08.2002. The appellant sanctioned the
release and payment of General Provident Fund on 25.5.2003.
Thereafter, on 18.3.2004, the Appellant sanctioned 90 percent E
provisional pension to the respondent. Remaining 10 percent
pension and salary of his suspension period (30.1.2002 to
30.8.2002) was withheld pending outcome of the criminal
cases/ departmental inquiry against him. He was also not paid
leave encashment and gratuity. F
4. Feeling aggrieved with this action of the withholding of
his 10 percent of the pension and non-release of the other
aforesaid dues, the respondent preferred the Writ Petition
before the High Court of Jharkhand. This Writ Petition was G
disposed of by the High Court by remitting the case back to
the Department to decide the claim of the petitioner for
payment of provisional pension, gratuity etc. in terms of
Resolution No. 3014 dated 31.7.1980. The appellant,
thereafter, considered the representation of the respondent but
H
182 SUPREME COURT REPORTS [2013] 8 S.C.R.
A rejected the same vide orders dated 16.3.2006. The
respondent challenged the rejection by filing another Writ
Petition before the High Court. The said petition was dismissed
by the learned Single Judge. The respondent filed Intra Court
Appeal which has been allowed by the Division Bench vide the
B impugned orders dated 31.10.2007. The Division Bench has
held that the question is squarely covered by the full Bench
decision of that Court in the case of Dr. Dudh Nath Pandey
vs. State of Jharkhand and Ors. 2007 (4) JCR 1. In the said
full Bench Judgment dated 28.8.2007, after detailed
c discussions on the various nuances of the subject matter, the
High Court has held:
"To sum up the answer for the two questions are as follows:
(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules,
D there is no power for the Government to withhold
Gratuity and Pension during the pendency of the
departmental proceeding or criminal proceeding. It
does not give any power to withhold Leave
Encashment at any stage either prior to the
E proceeding or after conclusion of the Proceeding.
(ii) The circular, issued by the Finance Department,
referring to the withholding of the leave encashment
would not apply to the present facts of the case as
it has no sanctity of law".
F
5. Mr. Amarendra Sharan, the learned Senior Counsel
appearing for the petitioner accepted the fact that in so far as
the Pension Rules are concerned, there is no provision for
withholding a part of pension or gratuity. He, however, submitted
G that there are administrative instructions which permit
withholding of a part of pension and gratuity. His submission
was that when the rules are silent on a particular aspect, gap
can be filled by the administrative instructions which was well
settled legal position, laid down way back in the year 1968 by
H the Constitution Bench Judgment of this Court in Sant Ram
STATE OF JHARKHAND & ORS. v. JITENDRA 183
KUMAR SRIVAs:i:.AVA [A.K. SIKRI, J.]
Sharma vs. Union of India 1968 (1) SCR 111. He, thus, argued A
that the High Court has committed an error in holding that there
was no power with the Government to withhold the part of
pension or gratuity, pending disciplinary/criminal proceedings.
6. The aforesaid arguments of the learned Senior Counsel
B
based on the judgment in Sant Ram Sharma would not cut any
ice in so far as present case is concerned, because of the
reason this case has no applicability in the given case. Sant
Ram judgment governs the fi~ of administrative law wherein
the Constitution Bench laid ddwn the principle that the rules C
framed by the authority in exer~ise of powers contained in an
enactment, would also have statutory force. Though the
administration can issue administrative instructions for the
smooth administrative function, such administrative instructions
cannot supplant the rules. However, these administrative
instructions can supplement the sfatutory rules by taking care D
of those situations where the statutory rules are silent. This ratio
of that judgment is narrated in the following manner:
"It is true that there is no specific provision in the Rules
laying down the principle of promotion of junior or senior E
grade officers to selection grade posts. But that does not
mean that till statutory rules are framed in this behalf the
Government cannot issue administrative instructions
regarding the principle to be followed in promotions of the
officers concerned to selection grade posts. It is true that F
Government cannot amend or supersede statutory rules by
administrative instructions, but if the rules are silent on any ·
particular point Government can fill up the gaps and
supplement the rules and issue instructions and
inconsistent with the rules already framed".
G
There cannot be any quarrel on this exposition of law which
is well grounded in a series of judgments pronounced post
Sant Ram Sharma case as well. However, the question which
is posed in the present case is altogether different.
H
184 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 7. 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 un-blemished 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,
B who spoke for the Bench, in his inimitable style, in the following
words:
"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,
c 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?
0
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
E date? We need seek answer to these and incidental
questions so as to render just justice between parties to
this petition.
The antiquated notion of pension being a bounty a
gratituous payment depending upon the sweet will or grace
F 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
G1 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
H one's discretion. It is only for the purpose of quantifying the
STATE OF JHARKHAND & ORS. v. JITENDRA 185
KUMAR SRIVASTAVA [A.K. SiKRI, J.]
amount having regard to service and other allied maters A
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 Anr.
V. Iqbal Singh (1976) llLLJ 377SC". B
8. 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 process of law
as per the provisions of Article 300 A of the Constitution of C
India.
9. Having explained the legal position, let us first discuss
the rules relating to release of Pension. The present case is
admittedly governed by Bihar Pension Rules, as applicable to
the State of Jharkhand. Rule 43(b) of the said Pension Rules 0
confers power on the State Government to withhold or withdraw
a pension or part thereof under certain circumstances. This
Rule 43(b) reads as under:
"43(b) The State Government further reserve to themselves
E
the right of withholding or withdrawing a pension or any
part of it, whether permanently or for specified period, and
the right of ordering the recovery from a pension of the
whole or part of any pecuniary loss caused to Government
if the pensioner is found in departmental or judicial
F
proceeding to have been guilty to grave misconduct, or to
have caused pecuniary loss to Government misconduct,
or to have caused pecuniary loss to Government by
misconduct or negligence, during his service including
service rendered on re-employment after retirement".
G
From the reading of the aforesaid Rule 43(b), following
position emerges:-
(i) The State Government has the power to withhold
or withdraw pension or any part of it when the
H
186 SUPREME COURT REPORTS [2013] 8 S.C.R.
A pensioner is found to be guilty of grave misconduct
either in a departmental proceeding or judicial
proceeding.
(ii) This provision does not empower the State to
invoke the said power while the department
B
proceeding or judicial proceeding are pending.
(iii) The power of withholding leave encashment is not
provided under this rule to the State irrespective of
the result of the above proceedings.
c
(iv) This power can be invoked only when the
proceedings are concluded finding guilty and not
before.
D 10. There is also a Proviso to Rule 43(b), which provides
that:-
"A. Such departmental proceedings, if not instituted while
the Government Servant was on duty either before
retirement or during re-employment.
E
i. Shall not be instituted save with the sanction of the
State Government.
ii Shall be in respect of an event which took place not
more than four years before the institution of such
F proceedings.
iii Shall be conducted by such authority and at such
place or places as the State Government may direct
and in accordance with the procedure applicable
G to proceedings on which an order of dismissal from
service may be made:-
8. Judicial proceedings, if not instituted while the
Government Servant was on duty either before retirement
or during re-employment shall have been instated in
H
STATE OF JHARKHAND & ORS. v. JITENDRA 187
KUMAR SRIVASTAVA [A.K. SIKRI, J.)
accordance with sub clause (ii) of clause (a) and A
C. The Bihar Public Service Commission, shall be
consulted before final orders are passed.
It is apparent that the proviso speaks about the institution
of proceedings. For initiating proceedings, Rule 43(b) puts B
some conditions, i.e, Department proceeding as indicated in
Rule 43(b), if not instituted while the Government Servant was
on duty, then it shall not be instituted except:-
(a) With the sanction of the Government, C
(b) It shall be in respect of an event which took place
not more than four years before the institution of the
proceedings.
(c) Such proceedings shall be conducted by the D
enquiry officer in accordance with the proceedings
by which dismissal of the services can be made.
Thus, in so far as the proviso is concerned that deals with
condition for initiation of proceedings and the period of E
limitation within which such proceedings can be initiated.
11. Reading of Rule 43(b) makes it abundantly clear that
even after the conclusion of the departmental inquiry, it is
permissible for the Government to withhold pension etc. ONLY
when a finding is recorded either in departmental inquiry or F
judicial proceedings that the employee had committed grave
misconduct in the discharge of his duty while in his office. There
is no provision in the rules for withholding of the pension/
gratuity when such departmental proceedings or judicial
proceedings are still pending. G
12. Right to receive pension was recognized as right to
property by the Constitution Bench Judgment of this Court in
Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330,
as is apparent from the following discussion: H
188 SUPREME COURT REPORTS [2013] 8 S.C.R.
A "29. The last question to be considered, is, whether the
right to receive pension by a Government servant
is property, so as to attract Articles 19(1)(f) and
31 (1) of the Constitution. This question falls to be
decided in order to consider whether the writ
B petition is maintainable under Article 32. To this
aspect, we have already adverted to earlier and we
now proceed to consider the same.
30. According to the petitioner the right to receive
pension is property and the respondents by an
c executive order dated June 12, 1968 have
wrongfully withheld his pension. That order affects
his fundamental rights under Articles 19(1){f) and
31 (1) of the Constitution. The respondents, as we
have already indicated, do not dispute the right of
D the petitioner to get pension, but for the order
passed on August 5, 1966. There is only a bald
averment in the counter-affidavit that no question of
any fundamental right arises for consideration. Mr.
Jha, learned counsel for the respondents, was not
E prepared to take up the position that the right to
receive pension cannot be considered to be
property under any circumstances. According to
him, in this case, no order has been passed by the
State granting pension. We understood the learned
F counsel to urge that if the State had passed an
order granting pension and later on resiles from that
order, the latter order may be considered to affect
the petitioner's right regarding property so as to
attract Articles 19(1)(f) and 31(1) of the
G Constitution.
31. We are not inclined to accept the contention of the
learned counsel for the respondents. By a reference
to the material provisions in the Pension Rules, we
have already indicated that the grant of pension
H
STATE OF JHARKHAND & ORS. v. JITENDRA 189
KUMAR SRIVASTAVA [A.K. SIKRI, J.]
does not depend upon an order being passed by A
the authorities to that effect. It may be that for the
purposes of quantifying the amount having regard
to the period of service and other allied matters, it
may be necessary for the authorities to pass an
order to that effect, but the right to receive pension B
flows to an officer not because of the said order but
by virtue of the Rules. The Rules, we have already
pointed out, clearly recognise the right of persons
like the petitioner to receive pension under the
circumstances mentioned therein. c
32. The question whether the pension granted to a
public servant is property attracting Article 31 (1)
came up for consideration before the Punjab High
Court in Bhagwant Singh v. Union of India A.l.R.
1962 Pun 503. It was held that such a right D
constitutes "property" and any interference will be
a breach of Article 31 (1) of the Constitution. It was
further held that the State cannot by an executive
order curtail or abolish altogether the right of the
public servant to receive pension. This decision E
was given by a learned Single Judge. This decision
was taken up in Letters Patent Appeal by the Union
of India. The Letters Patent Bench in its decision
in Union of India v. Bhagwant Singh I.LR. 1965 Pun
1 approved the decision of the learned Single F
Judge. The Letters Patent Bench held that the
pension granted to a public servant on his
retirement is "property" within the meaning of Article
31 (1) of the Constitution and he could be deprived
of the same only by an authority of law and that G
pension does not cease to be property on the mere
denial or cancellation of it. It was further held that
the character of pension as "property" cannot
possibly undergo such mutation at the whim of a
particular person or authority. H
190 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 33. 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 l.L.R. 1967 P & H 278. The
High Court had to consider the nature of the right
of an officer to get pension. The majority quoted
B 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 that the right to
c 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 imposition of penalty for lapse or misconduct on
D
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
E 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
F 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
G 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
H the further question regarding the procedure, if any,
STATE OF JHARKHAND & ORS. v. JITENDRA 191
KUMAR SRIVASTAVA [A.K. SIKRI, J.]
to be adopted by the authorities before reducing or A
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 B
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 c
government servant.
34. This Court in State of Madhya Pradesh v.
Ranojirao Shinde and Anr. MANU/SC/0030/1968
: [1968]3SCR489 had to consider the question
whether a "cash grant" is "property" within the D
meaning of that expression in Articles 19( 1)(f) and
31 (1) of the Constitution. This Court held that it was
property, observing "it is obvious that a right to sum
of money is property".
E
35. Having due regard to the above decisions, we are
of the opinion that the right of the petitioner to
receive pension is property under Article 31 (1) and
by a mere executive order the State had no power
to withhold the same. Similarly, the said claim is F
also property under Article 19(1 )(f) and it is not
saved by Sub-article (5) of Article 19. Therefore, it
follows that the order dated June 12, 1968 denying
the petitioner right to receive pension affects the
fundamental right of the petitioner under Articles G
19(1)(f) and 31(1)of the Constitution, and as such
the writ petition under Article 32 is maintainable. It
may be that under the Pension Act (Act 23 of 1871)
there is a bar against a civil court entertaining any
suit relating to the matters mentioned therein. That H
192 SUPREME COURT REPORTS [2013] 8 S.C.R.
A does not stand in the way of a Writ of Mandamus
being issued to the State to properly consider the
claim of the petitioner for payment of pension
according to law".
B 13. In State of West Bengal Vs. Haresh C. Banerjee and
Ors. (2006) 7 sec 651, this Court recognized that even when,
after the repeal of Article 19(1)(f) and Article 31 (1) of the
Constitution vide Constitution (Forty-Fourth Amendment) Act,
1978 w.e.f. 20th June, 1979, the right to property was no longer
remained a fundamental right, it was still a Constitutional right,
C as provided in Article 300A of the Constitution. Right to receive
pension was treated as right to property. Otherwise, challenge
in that case was to the vi res of Rule 10(1) of the West Bengal
Services (Death-cum- Retirement Benefit) Rules, 1971 which
conferred the right upon the Governor to withhold or withdraw
D a pension or any part thereof under certain circumstances and
the said challenge was repelled by this Court. Fact remains that
there is an imprimatur to the legal principle that the right to
receive pension is recognized as a right in "property".
E 14. Article 300 A of the Constitution of India reads as
under:
"300A 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."
F
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
G 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.
H
STATE OF JHARKHAND & ORS. v. JITENDRA 193
KUMAR SRIVASTAVA [A.K. SIKRI, J.]
15. It hardly needs to be emphasized that the executive A
instructions are not having statutory character and, therefore,
cannot be termed as "law" within the meaning of aforesaid
Article 300A. 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. As we noticed above, so far as statutory rules are B
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.
16. We, accordingly, find that there is no merit in the instant C
appeals as the impugned order of the High Court is without
blemish. Accordingly, these appeals are dismissed with costs
quantified at Rs. 10,000/- each.
B.B.B. Appeals dismissed.
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