JUDGMENT : B.L. YADAV, J. 1. Whether Petitioner was entitled to interim pension, gratuity and other service benefits on the date of retirement as Joint Director, local Fund Audit Department U.P. Allahabad or the same can be withheld on the basis of FIR lodged much after the retirement in which Petitioner's name figured as one of the accused but in the body of FIR no role is assigned to the Petitioner, is the short but significant question that falls for determination in present writ petition filed by the Petitioner under Article 226 of the Constitution with the prayer to issue a writ of mandamus, directing the Respondents to release the payment of interim pension, gratuity, pensionary benefits, together with other benefits that have accrued to the Petitioner upon his retirement from 30-11-86 as Joint Director, Local Fund Audit Department, U.P. Allahabad and further directing the Respondent No. 2 Director of Local Fund Audit to send necessary papers with regard to the computation and fixation of the pension etc. of Petitioner to the Accountant General Uttar Pradesh. 2. Facts of the case are almost admitted and lie in a narrow compass. The Petitioner has completed successfully his tenure as Joint Director, Local Fund Audit Department U.P. Allahabad and attaining age of superannuation was retired on 30-11-86. The Director, Local Fund Audit Department by his order dated 5-3-1987 (Annexure 2 to the petition) released interim pension for the period 1-12-86 to 31-5-87 at the rate of Rs. 1277/-per month and sanctioned interim gratuity to the tune of Rs. 49000/--and interim relief at the rate of Rs 100/ per month. These amounts were sanctioned in the name of Petitioner and were withdrawn by Sri D.N. Dubey, Assistant Director on 6-3-1987 (Annexure 3 to the petition). Thereafter, the Director by his order dated 18-3-1987 (Annexure 4 to the petition) sanctioned leave encashment of the Petitioner. State Government by its order dated 13-2-1987 (Annexure 5 to the petition) sanctioned transfer Travelling Allowance of the Petitioner. But the Petitioner was paid only three months' interim pension whereas six months interim pension and other service benefits mentioned above were withheld by the Respondents. 3. It appears after retirement of the Petitioner, one Sri Krishna Pandey Assistant Director (Headquarters) Local Fund Audit Department. But the Petitioner was paid only three months' interim pension whereas six months interim pension and other service benefits mentioned above were withheld by the Respondents. 3. It appears after retirement of the Petitioner, one Sri Krishna Pandey Assistant Director (Headquarters) Local Fund Audit Department. lodged a FIR on 31-3-1987 (Annexure 7 to the petition) with regard to shortage of money in the Cash Chest of the department, in the name of 12 persons out of which 5 persons have retired from service but their pension, gratuity and other service benefits have been released and three of them namely R.P. Pandey, N.L. Daga and J.N. Tripathi have received their entire dues from the department whereas Petitioner has been discriminated. Petitioner approached Director by letter dated 28-4-1987 (Annexure 8 to the petition) to send relevant papers to the Accountant General's office, and sent several reminders but no action was taken. 4. Sri Krishna Mohan Sinha, Learned Counsel for the Petitioner urged that pensionary benefits to a Government servant are not bounty rather it is a statutory right of a Government servant to get pension and gratuity etc. Article 41 (forty one) of the Constitution provides right to assistance to a Government servant for old age, sickness or disablement, hence right to pension and gratuity etc. is a constitutional right and same cannot be withheld just on lame excuses. It was further urged that relevant Government order dated 28-1-87 (Annexure 12 to the petition) indicates that even if any disciplinary proceeding or judicial proceeding is pending against the employees who retired, nevertheless interim pension cannot be stopped, and in the present case no proceeding was pending against the Petitioner during his service period and the incident alleged to have taken place, in the FIR was of a period much after the retirement of Petitioner but similarly situate other persons named in the FIR have been paid their pension and other service benefits whereas Petitioner has been discriminated. Reliance was placed on D.S. Nakara and Others Vs. Union of India (UOI), AIR 1983 SC 130 , Deokinandan Prasad v. State of Bihar AIR 1983 SC 1409 and State of Kerala and Others Vs. M. Padmanabhan Nair, AIR 1985 SC 356 . 5. Reliance was placed on D.S. Nakara and Others Vs. Union of India (UOI), AIR 1983 SC 130 , Deokinandan Prasad v. State of Bihar AIR 1983 SC 1409 and State of Kerala and Others Vs. M. Padmanabhan Nair, AIR 1985 SC 356 . 5. Learned Standing Counsel on the other hand urged that the Petitioner's name finds place in the FIR in the embezzlement matter, Petitioner has no statutory right or any right to get pension and other service benefits, even if the misconduct may be for a period after the date of retirement. 6. Having heard Learned Counsel for the parties point that falls for determination in this case is whether Petitioner was entitled to interim pension, gratuity and other service benefits on the date of retirement as Joint Director, Local Fund Audit Department U.P. Allahabad or the same can be withheld on the basis of FIR lodged much after the retirement in which Petitioner's name figured as one of the accused but in the body of FIR no role is assigned specifically to the Petitioner. 7. Admittedly Petitioner after attaining age of superannuation retired on 30-11-86 as Joint Director Local Fund Audit Department U.P. Allahabad and on his application Director, Local Fund Audit Department U.P. released his interim pension, gratuity, interim relief. leave encashment and transfer travelling Allowance etc. be except interim pension for a period of three months, payment of remaining aforesaid service benefits, was withheld on the pretext that Petitioner's name found place in the FIR lodged in connection with an occurrence which took place after retirement of Petitioner. A perusal of FIR indicates that it was with regard to shortage of money in the cash chest. The main responsibility for the shortage of money in the case Chest appears to be of the Cashier or other officers connected with the cash work and the same cannot be fastened on an officer who retired much earlier to the occurrence. However, even if needle of doubt goes to the Petitioner also, his name figures in the FIR and matter is under investigation, payment of interim pension cannot be withheld because there is no such Rule shown to me, disentitling a retired government servant from interim pension or full pension on the basis of alleged occurrence which took place after his retirement. Relevant government order dated 28-10-87 (Annexure 12) indicates that even if any disciplinary proceeding is pending against the employee who retired, the interim pension cannot be stopped. In the present case admittedly no proceeding was pending against the Petitioner during the period of his service. The name of Petitioner found place in the FIR along with 5 retired government servant out of which three persons whose names found place in the FIR, namely R.P. Pandey, N.L. Dega and J.N. Tripathi have been paid their entire retirement benefits including interim pension etc. but discriminatory approach has been adopted in the matter of Petitioner. 8. In Deokinandan Prasad Vs. The State of Bihar and Others, AIR 1971 SC 1409 , constitution bench of Supreme Court held that grant of pension does not depend upon the order being passed by the authorities to that effect. The right to receive pension flows to the officer or employee on account of relevant rules and provisions contained under the Pension Act 1871. The pension was not just a bounty payable on the sweet will or pleasure of the Government rather it was a statutory right vesting in the Government Servant. The right to pension was head to be a Government Servant's right of property attracting Article 19(1)(f) and Article 31(1) of the constitution. 9. In State of Madhya Pradesh v. Ranojirao Shinde AIR 1963 SC 1053, pension was held to be a right to property and right to receive pension was a right under Article 19 and just by executive order State has no power to withhold the same. The said claim to pension was also held to be a property under Article 19(1)(f) of the constitution. Any order of action leading to the denial of pension, affects the fundamental right of government servant enshrined under Article 31(1) and 19(1)(f) of the Constitution. 10. In Devaki Nandan Prasad Vs. State of Bihar and Others, AIR 1983 SC 1134 , where State of Bihar failed to carry out directions of Supreme Court issued in earlier petition filed by Devaki Nandan Prasad under Article 32 of the Constitution, Supreme Court criticised action of the State Government in not complying with the Mandamus issued. Ultimately State Government and its officers were directed to compute Petitioner's pension within the stipulated period consistent with the directions of Supreme Court issued in the earlier petition of the same Petitioner. 11. Ultimately State Government and its officers were directed to compute Petitioner's pension within the stipulated period consistent with the directions of Supreme Court issued in the earlier petition of the same Petitioner. 11. In D.S. Nakara and Others Vs. Union of India (UOI), AIR 1983 SC 130 , Constitution Bench of Supreme Court stated that 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 Deoki Nandan Prasad v. State of Bihar 1971 (supra) SCC 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. 12. It Smt. Poonamal etc. v. Union of India (Supra) it was observed that promise of socio-economic justice depicted in rosy language in Articles 38, 39 and 41 is being translated into a real action oriented programme by the stand taken by the Union of India. It was a case where family pension scheme was introduced. 13. In Smt. Bhagwanti Vs. Union of India (UOI), AIR 1989 SC 2088 , in respect of Family pension scheme it was high lighted that pension is payable on the consideration of past service rendered by the Government Servant. The objects of pension rules and relevant Government orders were emphasised by Hon'ble Rangnath Misra, J. (present Hon'ble the Chief Justice of India, as his lordship then was). Discussing entire relevant case law on the subject it was highlighted in para 13 that pension is provided for social purpose and it was connected with the socio economic rule envisaged by the framers of our constitution. 14. In State of Kerala and Others Vs. Discussing entire relevant case law on the subject it was highlighted in para 13 that pension is provided for social purpose and it was connected with the socio economic rule envisaged by the framers of our constitution. 14. In State of Kerala and Others Vs. M. Padmanabhan Nair, AIR 1985 SC 356 , it was reiterated that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. 15. In the present case Petitioner retired on 30-11-86 and after payment of 3 months interim pension rest has been stopped. 16. Recently in D.V. Kapoor Vs. Union of India and others, AIR 1990 SC 1923 , scope of Rule 9 of Civil Services Pension Rules 1972 and Civil Services conduct Rules 1964 and other relevant statutory provisions were considered. While considering the scope of Rule 9 it was indicated that President observes to himself the right to withhold or withdraw, the whole or part thereof, whether permanently or for specified period. President was also empowered to order recovery of pension for the whole or pecuniary loss caused to Government if in view of the departmental enquiry or judicial proceedings before the pensioner was found to be guilty but those proceedings must be pertaining to grave misconduct. In the instant case admittedly no misconduct or judicial proceedings were pending against the Petitioner till the date of his superannuation. 17. In view of the ratio indicated in different cases decided by their lordships of Supreme Court, I am of the considered opinion that there is no escape from the conclusion that the right to pension is a statutory right rather fundamental right. It was not a compensation for loyal services rendered by a devoted government servant but it was just a step in social welfare measure rendering socio economic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore one is required to fall back on savings. It was not a compensation for loyal services rendered by a devoted government servant but it was just a step in social welfare measure rendering socio economic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore one is required to fall back on savings. Thus the pension payable to a Government employee is earned by rendering long and efficient service hence, a Government servant is entitled for his pension as a fundamental right and same should not be deferred by any order particularly against the rules. 18. There would be no justification for withholding interim or full pension payable to the Petitioner just on the basis that Petitioners' name finds place in the FIR whereas the occurrence was much subsequent to the date of retirement. For the sake of precaution I have also perused the FIR there appears nothing against Petitioner. In any way along with Petitioner some other persons were also named in the FIR but three of them namely R.P. Pandey, N.L. Dega and J.N. Tripathi have been paid their pension and gratuity etc. but there does not appear any reason or justification for discriminatory approach adopted by the Respondents. in the case of Petitioner who was also similarly situate. 19. It may also be stated that for the reasons stated above right to get gratuity is also a statutory right of a government servant who is not charged of any misconduct. In the preset case Petitioner was neither charged of any misconduct nor any proceeding judicial or departmental was pending against him during the service period nor counsel for the Respondent has shown any provision of law or Government order to the effect that gratuity may be withheld without there being any proceeding departmental or judicial pending against the Petitioner. 20. In view of the premises aforesaid applying Aristotelian and Baconian reasonings I am of the considered opinion that Petitioner is entitled to his full pension, gratuity and other service benefits admissible to him under law. As considerable delay has been caused in making payment of aforesaid service benefits to the Petitioner and he had suffered a lot for the same and ran from pillar to post for no fault on his part, he is also entitled for the interest and cost of the petition. 21. As considerable delay has been caused in making payment of aforesaid service benefits to the Petitioner and he had suffered a lot for the same and ran from pillar to post for no fault on his part, he is also entitled for the interest and cost of the petition. 21. In the result petition succeeds and is allowed. The Respondents are directed to pay arrears of interim pension. gratuity leave encashment and other benefits that have accrued to tire Petitioner upon his retirement from 30-11-86, under law, by 20th October, 1991 together with interest admissible on the aforesaid amount. They are further directed to send necessary papers with regard to computation and fixation of the pension of Petitioner to the Accountant General Uttar Pradesh within a period of two months from the date a certified copy of this order is produced before them by the Petitioner. The Respondents shall also pay an amount of Rs. 3000/- as cost of the petition.