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2004 DIGILAW 1541 (RAJ)

Sohan Mertiya v. Dist. Judge

2004-10-20

SUNIL KUMAR GARG

body2004
Honble GARG, J.–The petitioner has filed the present writ petition under Article 226 of the Constitution of India on 26.4.2004 against the respondents with a prayer that by an appropriate writ, order or direction the respondents be directed to release the post retirement benefits along with interest @ 24% per annum. (2). It arises in the following circumstances: i) That at the time of retirement, the petitioner was holding the post of Senior Munshrim in the office of respondent No.1 (the Dist. And Sessions Judge, Jodhpur) and the retired on 30.11.2003 after attaining the age of superannuation through order dated 8.9.2003 (Annex.1) passed by the respondent No.1 (Dist. And Sessions Judge, Jodhpur). ii) That further case of the petitioner is that when he retired through order dated 8.9.2003 (Annex.1), at that time, no departmental enquiry was pending against him, but as per the provisions of Rajasthan Civil Services (Pension) Rules, 1996, he was not given all post retirement benefits by the respondent without any fault on the part of the petitioner. iii) Further case of the petitioner is that the post retirement benefits have not been given by the respondents on the pretext that while he was posted as Reader in the Essential Commodities Court, Jodhpur (respondent No. 2), some articles were not handed over by him so far. iv) Further case of the petitioner is the through order dated 15.12.89, he was sent on deputation to the officer of respondent No. 2 (Essential Commodities Court, Jodhpur) and thereafter by order dated 6.10.2001, he was again sent to the office of respondent No. 1 (Dist. And Sessions Judge, Jodhpur). v) Further case of the petitioner is that at the time when he was relieved from the office of respondent No. 2 (Essential Commodities Court, Jodhpur), he had prepared a list of items which were handed over to him and he handed over all the articles which were entrusted to him and therefore, no item was lying with him. vi) Further case of the petitioner is that through communication dated 17.11.2003 (Annex.2) written by the respondent No. 1 (Dist. And Sessions Judge, Jodhpur) to the petitioner, he was asked to hand over all the articles which were taken by him at the time of taking over of charge in the office of respondent No. 2 (Essential Commodities Court, Jodhpur). Along with the letter dt. 17.11.2003, a letter dt. And Sessions Judge, Jodhpur) to the petitioner, he was asked to hand over all the articles which were taken by him at the time of taking over of charge in the office of respondent No. 2 (Essential Commodities Court, Jodhpur). Along with the letter dt. 17.11.2003, a letter dt. 13.11.2003 written by the respondent No. (Special Judge, Essential Commodities Cases, Jodhpur) was also sent to the petitioner. vii) That the reply was submitted by the petitioner on 22.11.2003 in which he has stated that the items mentioned in the letter dated 13.11.2003 were never entrusted to him no they were in his power and possession and therefore, the was no question of handing over the same. viii) Further case of the petitioner is that because of that fact, no objection certificate (NOC) was not issued by the respondent No. 2 (Essential Commodities Court) which resulted into denial of entire post retirement benefits and apart from this, it has further been submitted by the petitioner that even provisional pension as per Rule 86 of the Rules of 1996 has not been paid to him. ix) Further case of the petitioner is that when he was relieved from the office of reader of respondent No. 2 (Essential Commodities Court, Jodhpur), Last Pay Certificate dated 23.10.2001 (Annex.3) was issued in which it was mentioned that there were no dues against the petitioner. x) Further case of the petitioner is that so far as charge of office of Sr. Munshrim is concerned, at the time of retirement, he handed over the charge through proceedings dtd. 27.11.2003 (Annex.4) and thus, when he had handed over the charge of last post, he was entitled to all post retirement benefits. xi) Further case of the petitioner is that through certificate dated 30.11.2003 (Annex.5) which was issued by the respondent No.1 (Dist. And Sessions Judge, Jodhpur) it has been clarified that the petitioner had retired on 30.11.2003 and at that time, no departmental enquiry as contemplated under the Rules of 1958 was pending against him. xii) Further case of the petitioner is that since he was not given all retrial benefits, therefore, he served a notice for demand of justice (Annex.6) on 31.3.2004, but since his grievance was not redressed by the respondents, hence this writ petition with the abovementioned prayer. (3). Reply to the writ petition was filed by respondent No. 1 (Dist. xii) Further case of the petitioner is that since he was not given all retrial benefits, therefore, he served a notice for demand of justice (Annex.6) on 31.3.2004, but since his grievance was not redressed by the respondents, hence this writ petition with the abovementioned prayer. (3). Reply to the writ petition was filed by respondent No. 1 (Dist. And Sessions Judge, Jodhpur) admitting that the petitioner retired after attaining the age of superannuation w.e.f. 30.11.2003 through order dtd. 8.9.2003 (Annex.1). It has further been averred in the reply that after retirement, the petitioner had been given the retirement benefits in respect of earned leave, GPF Amount and amount of State Insurance and therefore, to say that he was not paid any amount was wrong. On the point of pension, it has been submitted by the respondent No. 1 that the pension could only be given to a Government employee after he has submitted a no objection certificate/on due certificate and since the petitioner has failed to submit the no objection certificate/no due certificate, therefore, his pension was not finalised and for that the petitioner was himself responsible and not the Department. It has further been averred in the reply that since the petitioner has not handed over the charge of all the articles in the office of respondent No. 2 (Essential Commodities Court, Jodhpur), therefore, no objection certificate was not issued in favour of the petitioner and that is why the respondent No. 2 (Special Judge, Essential Commodities Act, Jodhpur) wrote a letter to the respondent No. 1 on 17.6.2002 (Annex.R/2) asking the petitioner to hand over remaining articles. It has further been submitted by the respondent No. 1 that even though the petitioner has not handed over the complete charge of the remaining articles, but even than the respondent No.1 had prepared a note for granting provisional pension to the petitioner and the same was forwarded to the Joint Director, Pension and Pensioners Welfare Department, Jodhpur for issuing provisional pension to the petitioner vide letter dtd. 15.5.2004 (Annex.R/4) and hence no case is made out and the writ petition be dismissed. (4). 15.5.2004 (Annex.R/4) and hence no case is made out and the writ petition be dismissed. (4). A reply was also filed by the respondent No. 2 of the similar nature and the reply of the respondent No. 2 is that the petitioner has not handed over the complete charge at the time when he was again transferred to office of respondent No. 1 (Dist. And Sessions Judge, Jodhpur) from the office of Special Judge, Essential Commodities Act, Jodhpur) and because of the fact, no objection certificate was not issued and hence no case is made out in favour of the petitioner and the writ petition be dismissed. (5). A rejoinder was also filed by the petitioner to the reply filed by the respondents. (6). Heard. (7). There is no dispute on the point that the petitioner retired from the services on 30.11.2003 and at the time of retirement no department enquiry was pending against him as is evident from the certificate dtd. 30.11.2003 (Annex.5). (8). There is also no dispute on the point that from a perusal of LPC dtd. 23.10.2001 (Annex.3) issued by the respondent No. 2 (Special Judge, Essential Commodities Cases, Jodhpur), it is clear that when he was relieved from the officer of reader of respondent No. 2 (Special Judge, Essential Commodities Cases, Jodhpur) there was no due against the petitioner. (9). There is also dispute on the point that that at the time of retirement, he handed over the charge of post of Sr. Munshrim through proceedings dtd. 27.11.2003 (Annex.4). (10). There is also no dispute on the point retirement benefits have not been given by the respondents on the pretext that while he was posted as Reader in the Essential Commodities Court, Jodhpur (respondent No. 2), some articles were not handed over by him so far. (11). There is also no dispute on the point that recommendations for grant of provisional pension to the petitioner have been made, but the same had no been released so far. (12). The question which arises for consideration is whether is the facts and circumstances of the present case, the petitioner is entitled to the pension or not? (13). The striking feature of the present case is that the petitioner retired from the post of Sr. Munshrim of the respondent No. 1 (Dist. (12). The question which arises for consideration is whether is the facts and circumstances of the present case, the petitioner is entitled to the pension or not? (13). The striking feature of the present case is that the petitioner retired from the post of Sr. Munshrim of the respondent No. 1 (Dist. And sessions Judge, Jodhpur) w.e.f. 30.11.2003 and when he retired from that post, there were no dues against the petitioner and not only this, no enquiry whatsoever was pending against him and apart from this from the reply of the respondents it is further apparent that they never contemplated to issue any charge-sheet to the petitioner and the only plea taken by the respondents is that the petitioner did not hand over the charge of remaining articles of the office of respondent No. 2 (Special Judge, Essential Commodities Cases, Jodhpur). (14). Before proceeding further something should be said about pension. (15). Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of past services rendered by him. It is property and enjoys the same constitutional protection afforded to any other property. (16). It may further be stated that the Honble Supreme Court in the case of Deokinandan Prasad vs. State of Bihar (1), has held that the pension is not a bounty payable at the sweet will and pleasure of the Government. The right to pension is a valuable right vested in a Government servant and is property and cannot be withheld by a mere executive order. The Courts have also held that the claim to pension is property under Article 19(1)(f) of the Constitution of India and is no saved by Sub-Art.(5) of Article 10 of the Constitution of India. LEGAL POSITION IN RESPECT OF WITHHOLDING OF PENSION (17). Although pension is not a bounty, but is climbable as a matter or right, yet the right is not absolute or unconditional. It is usually made conditional upon future good conduct or could be withdrawn or withheld if the pensioner is convicted of a serious crime or is found guilty of grave misconduct or even when the concerned authority considers that the pensioner is prima facie guilty of grave misconduct subject to giving him an opportunity of representation. (18). It is usually made conditional upon future good conduct or could be withdrawn or withheld if the pensioner is convicted of a serious crime or is found guilty of grave misconduct or even when the concerned authority considers that the pensioner is prima facie guilty of grave misconduct subject to giving him an opportunity of representation. (18). Apart from this, for valid withholding the pension, the petitioner must be found guilty of misconduct of grave character i.e. not when he was found to have committed a minor offence or mistake. (19). Since in the present case, no charge-sheet was ever served on the petitioner and even at the time of retirement, there was no due against the petitioner and not only this, when he was relieved by the respondent No. 2 (Special Judge, Essential Commodities Act, Jodhpur) on 9.10.2001, LPC was issued to the petitioner in which it was clearly mentioned that there were no dues against the petitioner, however, the case of the respondents is that he had not handed over the complete articles, but whatsoever may be the position, the said reason is not sufficient for withholding the pension of the petitioner as it cannot be said that the petitioner was guilty of such misconduct which deprived him of post retirement benefits. (20). Not only this, when the petitioner retired from the post of Sr. Munshrim, there were no dues against him and when on the last post, the petitioner was not having any dues, therefore, withholding of pension merely on the ground that he had no handed over the complete articles which were taken by him at the time of taking over of charge of Reader in the office of respondent No.2 (Essential Commodities Court, Jodhpur) after so many years would be nothing but a flimsy ground for refusing the pension. (21). For the reasons mentioned above, it is held that withholding of pension of the petitioner on the pretext that he had no handed over charge cannot be said to be justified and hence by not giving all post retirement benefits to the petitioner, a legal right which has accrued in favour of the petitioner has been infringed and thus, the present writ petition deserves to be allowed. For the reasons mentioned above, the present writ petition is allowed and the respondents are directed to pay all retired benefits to the petitioner within a period of three months from today which have become legally due to him.