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1991 DIGILAW 190 (CAL)

Suryadeb Ghosh v. State of West Bengal

1991-04-08

MAHITOSH MAJUMDAR

body1991
JUDGMENT The writ application is directed against the withholding of pension and gratuity despite order being No. 9252-COT/Estt dated September 2, 1987 issued by the Assistant __________ Con-40/86 Secretary to the Government of West Bengal, Cottage & Small Scale Industries Department, non-payment of T.A. bills submitted on the basis of Tour Diary duly approved by the joint Director, Industries (S.S.I.) Cottage Small Scale Industries, non-payment of provident Fund despite orders passed by the Accountant General, West Bengal under memo No. Fund-IV/4520/FP/R/1186 dated November 4, 1987, illegal withholding of un-utilised Leave Salary for 182 days sanctioned by the Director, Cottage & Small Scale Industries Department, illegal withholding of claim under State Employees Group Insurance-cum-Savings Scheme, 1983 duly sanctioned vide order No. 41 dated December 1, 1987 by the Director of Cottage & Small Scale Industries, non-consideration of application dated November 5, 1986 for commutation of 1/3rd Pension etc. 2. The facts of the case in brief are as follows : The petitioner at all material times was the General Manager, District Industries Centre, Darjeeling before the dace of his retirement on the forenoon of July 31, 1986. Till the date of his retirement from service, the petitioner was neither charge-sheeted nor he was served with any show cause notice. The petitioner, before his retirement, submitted Travelling Allowance bills to the extent of Rs. 7656.32P. towards travelling expenses for the period between September 1984 and May 1986. The petitioner made application for commutation of Pension on November 5, 1986. The petitioner made several reminders for payment of retirement benefits and the pending T.A. Bills. By Memo No. 9252-COT(Estt) dated September 2, 1987 the Assistant Secretary, Cottage & Small Scale _________ Con-40/86 Industries Department informed the Director of Cottage & Small Industries, respondent No. 2 herein that the superannuation pension and gratuity be granted to the petitioner and arrangement for sanction of pecuniary benefits to the petitioner may be made. The said memo dated September 2, 1987 reads thus : "Sub: Allegation against Shri S.D. Ghosh, Ex-General Manager, District Industries Centre, Darjeeling grant of pensionary benefits to him-instruction regarding. I am directed to address you on the above subject and to say that this Department is of opinion that superannuation pension and gratuity maybe granted to Shri S.D. Ghosh, Ex-General Manager, District Industries Centre, Darjeeling. 2. Arrangement may, therefore, be made for sanction of pecuniary benefits to Shri Ghosh at an early date. I am directed to address you on the above subject and to say that this Department is of opinion that superannuation pension and gratuity maybe granted to Shri S.D. Ghosh, Ex-General Manager, District Industries Centre, Darjeeling. 2. Arrangement may, therefore, be made for sanction of pecuniary benefits to Shri Ghosh at an early date. 3. Regarding drawal of proceedings against him on the basis of allegations received, further instructions of this Department will follow." 3. Despite the said memo issued by the Assistant Secretary, the respondent No. 2 did not take any steps whatsoever for payment of the retirement benefits. The petitioner, by letter dated January 9, 1988 sent a reminder to the respondent No. 2 but was not reply to. The petitioner was informed by memo No. Fund-IV/IND/FP/D/662 dated November 9, 1987, the Accountant General, West Bengal informed the concerned authorities that the final payment of Provident fund amounting to Rs. 21,674/- has been issued in favour of the petitioner. The respondent No. 2 issued a memo being No. 578/Pension dated November 17, 1987 inter alia, directing that the petitioner is entitled to 182 days leave and the General Manager, District Industries Centre, Darjeeling was asked to dispose of the same. The Respondent No. 2 issued another memo No. 41 dated December 1, 1987 to the following effect : "Subject : Claims under the West Bengal State Government Employees Group Insurance-cum-Savings Scheme 1983 claim due to cessation of employment on retirement or for reasons other than death of S.D. Ghose at the time of cessation, General Manager, DIC, Darjeeling Office Directorate of Cottage & Small Scale Industries, W. Bengal. In terms of the power vested under para 11.1 of the West Bengal State Government Employees Group Insurance-cum-Savings Scheme, 1983 issued with Finance Department memo No. 2811(350) F dated 10.3.83 sanction is hereby accorded to a total sum of Rs. 800/- comprising of the amounts detailed below in final and full settlement of the instalments under the aforesaid scheme arising out of the retirement/cessation of employment for (reasons to be stated) of Shri S.D. Ghosh who was holding the post of General Manager, DIC, Darjeeling in the office of Directorate of Cottage & Small Scale Industries, W. Bengal. Prior to his retirement on 31.7.86 Details of entitlements Amount in Rs. Prior to his retirement on 31.7.86 Details of entitlements Amount in Rs. i) Contributions deposited to the Savings Fund 495.00 ii) Interest @ 6% on the accumulation on Savings Fund 140.74 iii) Difference between contribution @ 8% p.m. and total of (i) and (ii) above 164.26 Total 800.00 Sd. Director, 23.11.87 Cottage & Small Scale Industries West Bengal". 4. Respondent No. 2 further issued another memo being No. 629/Estt dated December 16, 1987 informing the petitioner that as per Rules 137 of the West Bengal Services (D.C.R.B.) Rules 1971 read with Finance Department (Audit Branch) memo No. 3267-F dated 22nd April, 1976, sanction is hereby accorded for payment of pension and provisional gratuity to the petitioner. The said order is quoted below :- "As per Rules 137 of the West Bengal Service (DCRB) rules 1971 read wish Finance Department (Audit Branch) No. 3267-F dated April 22, 1986 sanction is hereby accorded to the payment or Provisional Pension and Provisional Gratuity to Shri Surya Deb Ghosh, Ex-General Manager, District Industries Centre, Darjeeling of this Directorate who retired on 31.7.87(AN) as follows:- Pension calculated @ Rs. 1254.60P p.m.......Month pension 1254.60 X 31½ Rs. 1198/- New Provisional Pension act 100% (for 12 months w.e.f. 1.8.86 to 31.7.87) @ Rs. 1198 x 12 ... Rs. 14,376/- lump. Gratuity calculated as a whole Rs. 44,478/- Provisional Gratuity as 90% of Rs. 44,478/- Rs. 40,030/- (Calculation sheet is enclosed) (in lump). The charges is debitable to the Government of West Bengal under the head “2071 pensions and other retirement benefits etc. vested after 14.8.1947." 5. The petitioner did not receive final payment of G.P.F. and the said fact was recorded in the letter dated January 9, 1988 addressed to the General Manager by the petitioner. By letter dated January 9, 1988 the petitioner informed the General Manager, D.I.C. Darjeeling that the petitioner should be informed about the actions taken by the concerned authorities in order to enable the petitioner to draw the amounts as per order of the Director, respondent No. 2 herein :- (1) Order No. 578 dated 17.11.87 Re : sanction of 182 days’ unutilised leave salary, (2) Order No. 41 dated 1.12.87 Re : Sanction of Group Insurance deposit, (3) Order No. 629 dated 16.12.87 Re : Sanction of Provisional Pension, Gratuity. By letter dated March 10, 1988 the petitioner also informed the Secretary to the Govt. By letter dated March 10, 1988 the petitioner also informed the Secretary to the Govt. of West Bengal, respondent No. 6 herein that the petitioner did not receive the amount on account of Travelling Allowance bills pending with the Authorities and the retirement benefits. 6. Before embarking upon the grievances of the petitioner, it is fit and proper to refer to the significance aspect that the writ petition had been moved on May 10, 1988 when no one was present on behalf of the respondents. The Court passed direction for filing of affidavits and also directed she respondents to produce Affidavit-in-opposition and production of records. Thereafter, the matter was placed in the list on September 19, 1988 when the Court again directed the respondents to file A/O within three weeks from date and the Reply thereto within one week after long vacation. Thereafter, the matter was taken up for bearing again on March 2, 1989 when the direction for filing affidavits were made. It would appear from the order passed that the Respondents never secured compliance of the directions given by the Court nor anyone appeared on behalf of the respondent. In those circumstances, Mr. Maharaj Sinha, the learned counsel appearing for the petitioner claimed and contended that the pension and gratuity can only be with held in a proceeding Death-cum-Retirement & Rules after the retirement of Government servant or on pendency of proceedings under the West Bengal Service (C.C.L.A.) Rules before the date of retirement of the concerned Government employee and such withholding of payment of pension and gratuity can also be made in the case where the proceeding is initiated in terms of section (10)(1)(b) of Death-cum-Retirement Rules 1971. Mr. Mr. Sinha referred to Rule 10(1)(b) of the Death-cum-Retirement Benefit Rules 1971 which reads thus :- "10 Right of the Governor to withhold the pension in certain cases- (1) The Governor reserves to himself the right of withholding or withdrawing the pension or any part of it whether permanently or for a specified period, and the right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if the pension is found in departmental or judicial proceeding to have been guilt of great misconduct of negligence, during the period of his service including service rendered on re-employment after retirement; Provided that- (b) Such departmental proceeding, if not instituted while an officer was in service whether before his retirement or during his re-employment- i) shall not be instituted save with the sanction of the Governor, ii) shall not be in respect of any event which took place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings on which an order of dismissal could be made in relation to the officer during the service." 7. It is further claimed and contended that withdrawal holding of pension and gratuity amounts to deprivation of property in terms of Article 300A of the Constitution of India. Such withholding payment of pension and gratuity contravenes the provisions as contained under Articles 14, 21 and 300A of the Constitution of India. It is also claimed and contended by Mr. Sinha that the respondents acted illegally and improperly by not implementing their own orders as contained in Annexures "H", "I", "J", "L", "M", "N" to the writ petition. 8. Right to pension and gratuity and other financial benefits as are indicated above, according to Mr. Sinha, constitute to right to life. Mr. Sinha laid a special stress on the provisions of Article 300A of the Constitution of India which laid down that it is not the fundamental right, it is the constitutional right that deprivation of right to property without the authority of law infringes the provisions of Article 300A of the Constitution of India. According to Mr. Sinha, the respondents cannot be permitted to act in violation of that Article 300A Constitution of India. Further contention of Mr. Sinha is that the action of the respondents in withholding the said pensions and gratuity etc. constitute arbitrariness and that being so. According to Mr. Sinha, the respondents cannot be permitted to act in violation of that Article 300A Constitution of India. Further contention of Mr. Sinha is that the action of the respondents in withholding the said pensions and gratuity etc. constitute arbitrariness and that being so. Article 14 should come into play. In support of the contention that pensions, gratuity and other financial benefits coming within the sweep of Articles 300A and 21 of the Constitution of India amounts to deprivation of property and the right to livelihood without the authority of law. It was further urged by Mr. Sinha that deprivation of the right to pension, gratuity and other financial benefits, after superannuation, constitutes violence on the provisions of Articles 14 and 21 of the Constitution of India. In support of his claims and contentions, Mr. Sinha referred to the following decisions of the Supreme Court of India : (1) Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409 (2) State of Punjab v. K.R. Erry, AIR 1973 SC 834 (3) State of Punjab v. Iqbal Singh, AIR 1976 SC 667 (4) Sahabuddin Md. Yunus v. State of Andhra Pradesh, 1984 (3) SLR 119 (5) Som Prakash Rekhi v. Union of India, 1981(1) SLR 154 (6) Maneka Gandhi v. Union of India, AIR 1978 SC 597 (7) Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180 (8) Shrilekha Vidyarthi v. Stale of U.P., AIR 1991 SC 537 (9) Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Lab IC 91 9. Mr. Sinha strongly placed reliance on the orders issued by the concerned Respondents in favour of the petitioner. After referring to and relying on the said orders issued by the Respondents from time to time, Mr. Sinha urged that the Respondents cannot withhold the pension, gratuity and other financial benefits payable to the petitioner. The action of the Respondents, in not granting the pensionary benefits or other financial benefits or in other words, withholding the pension and other financial benefits without the authority of law is ultra vires the provisions of Articles 14, 21 and 300A of the Constitution of India. It is unfortunate that despite directions passed by the Court, the respondents never cased to contest the writ application nor any affidavit-in-Opposition has been filed despite the directions passed by the Court and thereby allow the writ application to be decided exparte. It is unfortunate that despite directions passed by the Court, the respondents never cased to contest the writ application nor any affidavit-in-Opposition has been filed despite the directions passed by the Court and thereby allow the writ application to be decided exparte. It has also to be recorded that in the absence of A/O to the writ application, the allegations contained in the writ application, the allegations contained in the writ application cannot but be admitted. The Court is required to consider the basic aspect of the case namely :- (a) whether the Respondents could withhold the pension and other financial benefits after his superannuation without initiating disciplinary proceeding against the petitioner during his service career under the West Bengal Services (Classification, Control and Appeal) Rules 1971 or under the West Bengal Services (Death-Cum-Retirement Benefits) Rules 1971 in terms of Rule 10 of the said Rules. (b) whether, withholding of pension or other financial benefits in a case of the present nature involves clearest breach of Articles 14, 21 and 300A of the Constitution. (c) whether, the Respondents are otherwise competent to act contrary to the orders as contained in Annexures "H", "I", "J", "M" and "N" to the writ application. 10. In regard to the question covered by (a) above, the respondents. I am of the opinion can withhold the partial pension or gratuity or other financial benefits subject to the statutory conditions on the ground of pendency of disciplinary proceeding initiated before his retirement only. The pendency of disciplinary proceeding if initiated before the retirement of any employee under the West Bengal Services (Classification, Control and Appeal) Rules, 1971 may be continued even after his retirement under the West Bengal Services (Death-Cum-Retirement Benefits) Rules, 1971 can be the ground for withholding portion of the retired benefits. Withholding of pension or denial of pension, gratuity or other financial benefits is otherwise permissible provided an appropriate proceeding which is pending under the West Bengal Services (Classification Control and Appeal) Rules, 1971 continued under the West Bengal Services (Death-Cum-Retirement Benefits) Rules 1971 or a proceeding for withholding of pension or gratuity or other financial benefits is initialed in terms of Rule 10(i)(b) of the said Rules. In the instant case, no such disciplinary proceeding was at all initialed against the petitioner during his service career or continued under the Provisions of West Bengal Services (Classification, Control and Appeal) Rules 1971 read with Death-Com-Retirement Benefits Rules 1971 or after his retirement, as would appear from my judgment in the other writ petition filed by the petitioner nor any proceeding has been initiated under the West Bengal Services (Death-Cum-Retirement Benefits) Rules 1971 within a period of 4 years from the first date of the alleged occurrence, That being so, the Respondents are otherwise incompetent either to deny or to withhold provisional pension, gratuity or other financial benefits to the petitioner. Such total withholding of pension gratuity and other financial benefits amounts to deprivation of life in terms of Article 21 of the Constitution. Right to live comes within the sweep of Article 21 of the Constitution of India. There cannot be and should not be any deprivation of property without the authority of law as is engrafted under Article 300A of the Constitution. Besides, the action of the respondents concerned must satisfy the test under Article 14 of the Constitution. In the instant case, the Respondents failed to act fairly, justly and properly. Judicial review of the action of the Respondents confined or limited to the question of irrationality, illegality and proceeding impropriety is permissible. In the case of arbitrariness, the infirmity of irrationality is obvious. In this respect, reference is made by Mr. Sinha to the observations of Lord Dilplock, L.J. in (10) Council of Civil Services Union v. Minister for Civil Services, 1984(3) of All England Reporter at P, 935. My answer on examination of contextual and legal perspective is thus answered in the negative. The second question covered by (b) above is now to be looked into. 11. Withholding of pension in the absence of the conditions as engrafted in Rule 10 of the West Bengal Services (Death-Cum Retirement Benefits) Rule 1971 amounts to exercise of arbitrary powers which may be described as Honry VIII Clause under the Service Jurisprudence. The retirement benefits flowing from the completed tenure of employment under the Government is to be considered in its contextual, conceptual and legal perspective. The retirement benefits flowing from the completed tenure of employment under the Government is to be considered in its contextual, conceptual and legal perspective. It is some-what strange that during the service tenure or before the retirement of the petitioners, Respondents never cared to initiate any disciplinary proceeding nor did they initiate any proceeding against the petitioner after the retirement. Denial or withholding of pension, gratuity or such other financial benefits as found by the Supreme Court in the cases mentioned above, amount to deprivation of property and also deprivation of right to live. Right to live includes right to livelihood. Respondents have no authority to take away such right to live after the Government servant attained the age of superannuation and such right to property cannot be otherwise taken away without the authority of law nor the right to livelihood cannot hand on the fancies caprice and whims of individual in authority. It does not depend upon ipsi dixi upon the authorities. The employment is not a bounty from the Respondents nor can its survival be at their mercy. Income is a foundation of many fundamental rights as found by Sewant, J. in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, reported in Lab IC 1991 at P. 91. Article 14 is potentially allergic to arbitrariness and it forbide arbitrariness in the action of the Executives. Mr. Sinha referred to the decision of the Supreme Court in the cases of Olga Loga Tellies v. Bombay Municipal Corporation (Supra), and Shrilekha Vidhyarthi v. State of U.P. (Supra), in my view, the Court cannot ignore the upsurge of judicial activism nor the Court can allow legal escapism to transcend judicial activism. 12. Let me examine the decisions cited at the relevant portions of the Reports bar, are noted hereinbelow :- 1. Deokinandan Prasad v. State of Bihar (Supra). The learned Judges of the Supreme Court held that "The grant of pension does not depend upon an order being passed by the authorities to that effect. 12. Let me examine the decisions cited at the relevant portions of the Reports bar, are noted hereinbelow :- 1. Deokinandan Prasad v. State of Bihar (Supra). The learned Judges of the Supreme Court held that "The grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amounts 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 flows to the Officer employee not because of the said order but by virtue of the Rules" .................." Right to receive pension is property under Article 31(1) and by a mere executive order, the State has no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(f) and it is not saved by sub-Article (5) of Article 19." 2. The learned Judges of the Supreme Court in the case of State of Punjab v. K.R. Erry (Supra), observed that "The State Government must give reasonable opportunity to the Officer Concerned to show cause against the proposed reduction in the amount of pension and gratuity legally payable on his superannuation” .............. “The Rule which declares that even administrative authority has to act fairly after giving an opportunity to the person whose rights and interests are affected by its decision is no more than an extension of the well-known rule which Courts in England had recognised in the 19th century. In (11) Cooper v. Wandosworth Board of Works, 1983(14) CBNS 180 the Board, which had, under the Act of 1955, the authority to demolish any building constructed if the owner thereof had failed to give proper notice, was held bound to give the owner an opportunity of being heard before demolishing. It was contended in that case by the Board that the discretion to order demolition was not a judicial discretion. It was contended in that case by the Board that the discretion to order demolition was not a judicial discretion. But the Court decided unanimously in favour of the owner, Erie, C.J. held that the power was subject to a qualification repeatedly recognised that no person is to be deprived of his property without his having an opportunity of being heard and that this had been applied to many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the District Board in ordering a house to be pulled down. Whiles, J. observed "That the rule was of universal application, and founded upon the plainest principles if hystuce”. In the case before us, the Officers are being deprived of part of their pension. Therefore, it was quite essential in all fairness and elementary justice that they should have been given reasonable opportunity to show cause against the proposed action.” 3. The Learned Judges of the Supreme Court in the case of State of Punjab v. Iqbal Singh (supra) held-"Pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it's property under Article 31(1) and the State cannot with hold the same by a mere executive order. The claim of pension is also 'property' under Art. 19(1) and an executive order denying it was not saved by clause(v) thereof. ........ “Although an order imposing out in pension and gratuity under R. 614 is not one of reduction in rank falling within the purview of Art. 311(2) of the Constitution, yet there can be no doubt that it adversely affected the civil servant and such an order could not have been passed without giving him a reasonable opportunity of making his defence." 4. In the cage of Sahabuddin Md. Yunus v. State of Andhra Pradesh (supra), the learned Judges observed that "Arts. In the cage of Sahabuddin Md. Yunus v. State of Andhra Pradesh (supra), the learned Judges observed that "Arts. 191(f),(5) and 31(1) - Pension is a right to property-Employees has a right to receive pension according to the rules in force on the date of retirement-Retrospective amendment in the rules after fifteen yean curtailing pension tent amounts to taking away his right to receive pension and amounts to abridging that right-Amendment in the Rules to that extent void ......Pension being thus a fundamental right, it could only be taken away or curtailed in the manner provided in the Constitution. So far as Art. 31(1) is concerned, it may be said that the appellant was deprived of his property by authority of law but this could not be said to have been done for a public purpose nor was any compensation being given to the appellant for deprivation of his property, namely......So far as Art. 19(1)(f) is concerned, the fundamental right under that sub-clause could be restricted only as provided by clause 5 of Art. 19. This clause has no application to a right to receive pension which is property under sub-clause (f) of Art. 19 of the Constitution". 5. In the case of Som Prakash Rekhi v. Union of India (supra), the learned Judges held-"Payment of gratuity or provident fund-Not to affect pension. Deduction from pension cannot be made payment of gratuity or provident fund cannot operate as "set-off". We, accordingly hold that it is not open to the second respondent to deduct from the full Pension any sum based upon reg.16 read with reg. 13. If reg. 16 which now has acquired statutory flay-out having been adopted and continued by statutory rules, operates contrary to the provisions of P.F. Act and the Gratuity Ace. It must fall as invalid; we uphold the contention of the petitioner." 6. The learned Judge of the Supreme Court in the case of Maneka Gandhi v. Union of India (Supra), observed-"If a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of Art. 21 has to stand the test of one or more of the fundamental rights conferred under Art. 19 which may be applicable in a given situation, ex-hypothesis it must also be liable to be tested with reference to Article 14..................... The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14. Like a brooding omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of Art. 21 would not be satisfied......................................................... ........................It would not be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and bearing were to be given to the person concerned before impounding his passport ...................... The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.” 7. In the case of Olga Tellis v. Bombay Municipal Corporation (Supra), the learned Judges held- “The right to life includes the right to livelihood. The sweep of the right of the conferred by Art. 21 is wide, and far reaching. It does not mean merely that life cannot be extinguished or taken away as for example, by the imposition and execution of the death by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life, in equally important facet of that right is the right to livelihood, because, no person can live without the means of living, that is, the means of living, that is, the means of livelihood, If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be co deprive him of his means or livelihood to the point of abrogation ................................. The procedure prescribed by law for the deprivation or the right conferred by Art. 21 must be fair, just and reasonable. Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore, essential that the procedure prescribed law for depriving a person of his fundamental right must conform to the norms or justice and fair play. Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore, essential that the procedure prescribed law for depriving a person of his fundamental right must conform to the norms or justice and fair play. The procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has therefore, to be tested by the application of two standards, the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within she scope of the authority conferred by law, is found to be unreasonable it must mean that the procedure established by law under which that action is taken is itself unreasonable.…………………………… ………………………………………………………………If a law is found to direct the doing of an act which is forbidden by the constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down.” 8. The learned Supreme Court in the case of Shrilekha Vidyarthy v. State of U.P. (supra) observed that Administrative State actions in contractual matter can be reviewed under Art. 14 of Constitution ......................................................................................... "The constitution does not envisage or permit unfairness or unreasonableness, in State actions in any sphere of its activity contrary to the professed ideals in the preamble. Exclusion of Art. 14 in contractual matters is not permissible in constitutional scheme. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Art. 14 and permit judicial review, it can be said that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. Therefore it would be difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made from the purview of judicial review to test its validity on the anvil of Art 14. Thus the wide sweep of Art. 14 undoubtedly tokes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the districts and the other rights, contractual or statutory, which the appointees may have". 9. In the case of Delhi Transport Corpn., v. D.T.C. Mozdoor Congress (Supra), Sawant, J. held - "There is need to minimise the scope of the arbitrary use of power in all wals of life. It is inadvisable to depend on the good sense of the individuals, however, high placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is true to say that individuals are not and do not become wise, because they occupy high scats of power, and good sense, circumspection and fairness does not go with the posts, however, high they may be. There is only a complainant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does warrant, In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolite to leave any aspect of its life to be governed by discretion when it can conveniently and easily he covered by the rule of law................................................. ................................................................................................................................................The right to life includes right to livelihood. The right to livelihood therefore, cannot bang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work, becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them." 13. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work, becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them." 13. Actions of the Respondents, therefore, in my view in withholding the pension and other financial benefits infringe the rights of the petitioner under Articles 14, 21 and 300A of the Constitution of India. The petitioner, like every citizen is entitled to live as enjoined under Article 21 of the Constitution. Right to live embraces not only physical existence but the quality of life. Action of the respondents as discussed hereinabove, in my opinion, warrants serious disapproval and I accordingly hold the actions of the Respondents concerned for not making available to the petitioner his pension and other financial benefits is wholly unconstitutional inasmuch as they acted in complete breach of the provisions of Articles 14 and 21 of the Constitution. 14. It must be borne in mind that Article 300A of the Constitution is mere mechanical reproduction of Art. 19 (1) which stands deleted. The judgment of the Supreme Court on this aspect will be the key and safer guidance for the interpretation of Article 300A of the Constitution. The expression of law does not mean enacted piece of legislation but a reasonable law as observed in the Maneka Gandhi (a case where the Supreme Court observed that law must be reasonable and not an enacted piece of law). 15. While discussing this aspect, the court is not oblivious of the fact of deletion of Articles 31 and 19(1)(f) of the Constitution. Article 300A is a constitutional right. The provisions of Article 300A have to be satisfied with the requirements laid down in the relevant Articles of the Constitution. Part XIII of the Constitution deals with finance, properties, contracts and the suits. The concept of personal liberty has been enlarged by the Supreme Court in Maneka Gandhi case. Right to property as indicated above is essential part of personal liberty. Therefore, deletion of Articles 31 and 19(1)(f) of the Constitution does not do away the right to property which in view of expansion of the concept of personal liberty continues to be the fundamental right. 16. Right to property as indicated above is essential part of personal liberty. Therefore, deletion of Articles 31 and 19(1)(f) of the Constitution does not do away the right to property which in view of expansion of the concept of personal liberty continues to be the fundamental right. 16. In the facts and circumstances indicated above, the Court cannot but hold that the Respondents without issuing a show cause notice to the petitioner, acted in flagrant violations of Articles 14 and 21 of the Constitution by effecting the total withholding of the pensional benefits to the petitioner. Article 4 forbids arbitrariness in the minds of the respondents. The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority, by three quick readings of a bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate. ‘Procedure established by law’ with its lethal potentiality will reduce life and liberty to a precarious playing if we do not ex-necessitates import into these weighty words an adjectival rule of law, civilised in its should, fair in its heart and fixing those imperatives of procedural protection, absent which, the processual tail will wag the substantive head. To frustrate Article 21 by relying on any formal adjectival statute, however, flimsy or fantastic its provision, is to rob what the constitution treasures. The procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish carefully designed to effectuate, not to subvert the substantial right itself. Thus understood, procedure must rule out anything arbitrary, freakish or bizarre. Law is reasonable law not any enacted piece. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life more fundamental than any other; forming part of personal liberty and paramount to happiness, dignity and worth of the individual, will not be entitled to any procedural safeguards save such as a legislature's mood chooses. Otherwise, the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life more fundamental than any other; forming part of personal liberty and paramount to happiness, dignity and worth of the individual, will not be entitled to any procedural safeguards save such as a legislature's mood chooses. Article 21 of the Constitution gives guarantee to personal liberty to a citizen which includes the right to livelihood and the said right to livelihood cannot be taken away without the authority of law. The un-communicated decision to continue withholding of the provisional pension and such other pension-able benefits to the petitioner from the date of his retirement or from the date of occurrence is itself a clear proof of violation of fundamental right of the petitioner to personal liberty which infringes the right to livelihood, Respondents have no authority to withhold the provisional pension of the petitioner without having recourse to the provisions of the said D.C.R.B. Rules 1971. 17. Conduct of the Respondents in the factual perspective of the instant case is to be examined in depth from the angle of reasonableness and arbitrariness which pervades the entire constitutional scheme. Respondents even had never cared to come forward before this court and to offer its explanation as to why provisional pensionary benefits from the date of retirement of the petitioner had been withhold nor did they appear before this court to contest the matter. Article 21 of the constitution which guarantees the right to life and personal liberty has come to occupy the position of ‘brooding omnipresence’ in the scheme of fundamental rights. This provision has become a ‘santuary for human values’ and therefore has been rightly termed as the ‘fundamental of fundamental rights’. Like the right to personal liberty which has been given a new content, the right to life has been infused with dynamic concept of human dignity which is the foundational of all other human rights. The right to live and the right 50 work are integrated and interdependent and, therefore, if a person is deprived of his pensionary be fits as a result of unconstructual action of respondents, his very right to life is put in jeopardy...... The easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. The easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. The right to life enshrined in Art. 21 cannot be restricted to mere animal existence. It means something more than just physical survival…….... The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.....this would include the faculties of thinking and feeling...... But the question which arises is whether the right to life is limited only to protection of limp or faculty or does it go further and embraces something more. We think that the right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head facilities for reading, writing and expressing one self in diverse forms, freely moving about and mixing and commingly with fellow human beings. Thus, the right to life has been held to be wide enough to encompass the right to live with human dignity which in turn would include the basic necessities of life. 18. Further, the right to life has been held to include the right to livelihood. According to Art. 21, the right to life as expounded above, cannot be taken away by the State except according to procedure established by law. 19. I am, therefore, constrained to hold that without issuing a show cause notice during the period of 4 years from the date of occurrence or from the date of retirement, Respondents committed violence on Articles 14 and 21 of the Constitution by adversely affecting the right to livelihood of the petitioner and the very conduct of the Respondents shows that they are pre-determined to take adverse decision against the petitioner by totally withholding of provisional pensions and provisional gratuity etc. or such other financial pensionary benefits. Therefore, the Respondents, in my view, acted in clear breach of the provisions of Articles 14 and 21 of the Constitution affecting the petitioner's right to livelihood. In view of the foregoing paragraphs, I allow the writ application by directing the respondents to make available all the pensionary benefits and such other financial benefits as mentioned in the writ petition within a period of one month from the date of communication of this order. In view of the foregoing paragraphs, I allow the writ application by directing the respondents to make available all the pensionary benefits and such other financial benefits as mentioned in the writ petition within a period of one month from the date of communication of this order. In this case, the court should deprecated such indolent attitude of the Respondents in not contesting the matter by not filing the Affidavit-in-opposition or engaging any counsel on their behalf to appear before this court. In those circumstances, the court cannot but to accept the assertions made in the writ application and, therefore, it is fit and proper for the Court to Award costs to the extent of 50 G.M.S. to be paid to the petitioner and further the benefits which would have been accrued to the petitioner should be paid. The entire pensionable benefits, gratuity and such other financial benefits as are payable to the petitioner should be paid in the manner indicated above together with 12% interest on the total accrual amount from the date of accrual of the cause of action.