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2013 DIGILAW 1177 (JHR)

Joy Kumar Mahto v. State of Jharkhand

2013-10-25

SHREE CHANDRASHEKHAR

body2013
ORDER By Court: The petitioner has approached this Court seeking a direction upon the respondents for payment of retiral dues, including arrears of pension. 2. The brief facts of the case are that, the petitioner was appointed as Chaukidar (Class IV) in the Food, Supply and Commerce Department, Government of Bihar on 02.05.1967. On 01.10.1973, the petitioner was sent on deputation in the Bihar State Food and Civil Supplies Corporation and he was posted at Dumka. The petitioner superannuated from service w.e.f. 31.07.1991. Although, another similarly situated person namely, Sonelal Poddar, who retired from the post of Godown Operator in the Corporation, was granted the benefit of pension and other retiral benefits however, the petitioner was denied the benefit of pension and therefore, he has approached this Court by filing the present writ petition. 3. A counter affidavit has been filed on behalf of the State of Jharkhand in which it has been stated that, since the said Sonelal Poddar, Ram Chandra Ramani and Samir Rai had completed more than 10 years of service, they were entitled for grant of pension and accordingly, they were granted the benefit of pension. 4. The respondent no. 9 namely, the Bihar State Food and Civil Supplies Corporation, Dumka has filed a counter affidavit stating as under: 10. “That, with regard to para5 it is stated and submitted that after the retirement the petitioner has been paid the following amounts towards the retirement benefits: Head Cheque Amount No. (Rs.) a) Pay for 240 days 702189 12,024.00 unutilised E.L. dt.2.8.1991 b) Gratuity & Group 705669 10,980.00 Insurance dt.30.7.1992 c) Master Policy 0113090 1,257.00 dt. 27.5.1993 d) E.P.F. 287286 11,580.00 dt.14.7.1992 35,841.00 transferred to Sri Mahto's S.B.I. Account no. 22657 at Dumka vide memo no. 6589 dated 18.7.1992. That the above amounts have been received by the petitioner, for which he has granted receipts.” 5. On 06.09.2013, when the matter was listed for hearing, a direction was given to the counsel appearing for the State of Bihar to seek instruction in the matter, as inspite of notice having been issued in the matter, the State of Bihar had not filed its affidavit in the present proceeding. On 06.09.2013, when the matter was listed for hearing, a direction was given to the counsel appearing for the State of Bihar to seek instruction in the matter, as inspite of notice having been issued in the matter, the State of Bihar had not filed its affidavit in the present proceeding. The Department of Food and Consumer Protection, the Government of Bihar thereafter, filed its counter affidavit dated 21.9.2013, taking a plea that since, letters dated 24.05.2013 and 26.08.2013 which were written to the Government of Jharkhand, have not been responded to by the concerned authorities, it was not possible to ascertain the entitlement for the grant of pension to the petitioner. Paragraph nos. 5 to 10 of the counter affidavit filed by the Food and Consumer Protection Department, Government of Bihar are extracted below: 5.“That the claim of the petitioner is that he was initially appointed on the post of Chowikar in Sub-Divisional Office, Deoghar under Supply Department on 02.05.1967 and subsequently he was deputed in the office of District Manager, State Food Corporation, Dumka and he rendered his rest of service in the Corporation till his superannuation on 31.07.1991. However, the petitioner didn't annex any document in support of his averment made in annexure-1. 6. That it is relevant to mention her that the petitioner superannuated from State Food Corporation and got all admissible retiral benefits as a Corporation employee as it has come to be known through letter no. 1473 dated 04.08.2008 with enclosure of SFC (annexed in writ application). It is also mentioned in the letter 1473 dated 04.08.2008 that the counter affidavit has already been filed by SFC vide oath no. 921 dated 28.01.2008. 7. That so far as submission of petitioner in representation dated 03.07.2007 is concerned, it is stated that the representation has been addressed to District Supply Officer, Deoghar, Jharkhand which was to be redressed by the authority concerned. We are not aware of the fact whether the said representation has been disposed or not from appropriate level, since it is related to Jharkhand Government. 8. We are not aware of the fact whether the said representation has been disposed or not from appropriate level, since it is related to Jharkhand Government. 8. That it is stated that as regards computation of qualifying service for the purpose of grant of pension to an employee retired from the Government service is concerned, it is regulated by the specific provision as contained in Rule 58 of the Bihar Pension Rule which is as follows: “The service of a government servant does not qualify for pension unless it conforms to the following three conditions: (i)The service must be under the Government, (ii)The employment must be substantive and permanent, (iii)The service must be paid by the government.” 9. That so far as the stand of Food & Consumer Protection Department, Bihar is regard to payment of pension to the petitioner is concerned, it is stated that to ascertain the entitlement of his pension, the Department has sought a status report from the Jharkhand Government vide letter no. 3242 dated 24.05.2013 and vide letter no. 5415 dated 26.08.2013. But till date, the points raised in the letters have not been clarified by the Food, Public Distribution and Consumer Affairs Department, Government of Jharkhand, Ranchi. 10. That it is most humbly submitted that it is not possible to determine the claim of pension and pensionary benefits unless the requisite and relevant documents are provided by the Jharkhand Government.” 6. Heard learned counsel appearing for the parties and perused the documents on record. 7. Mr. Anjani Kumar Verma, learned counsel appearing for the petitioner has submitted that it has not been disputed by any of the respondents that the petitioner was appointed by the State of Bihar and he served for more than six years in the Department of Food, Supply and Commerce, Government of Bihar. By an order of the Secretary, Bihar State Food, Supply and Commerce Department, the petitioner was sent on deputation to the Bihar State Food and Civil Supplies Corporation and he superannuated from service w.e.f. 31.07.1991, while serving on deputation with the Bihar State Food and Civil Supplies Corporation. By an order of the Secretary, Bihar State Food, Supply and Commerce Department, the petitioner was sent on deputation to the Bihar State Food and Civil Supplies Corporation and he superannuated from service w.e.f. 31.07.1991, while serving on deputation with the Bihar State Food and Civil Supplies Corporation. He has further submitted that it is thus apparent that, the petitioner who was appointed under the Government of Bihar, has remained an employee of the Government of Bihar and therefore, grant of benefit of pension cannot be denied to the petitioner on the plea that, since after 01.10.1973 the petitioner was not working in the Department of Food, Supply and Commerce, he cannot be treated as an employee of the Government of Bihar. 8. Learned counsel appearing for the respondent – State of Jharkhand has not denied that the other similarly situated employees who served for more than 10 years have been granted benefit of pension. 9. Learned counsel appearing for the respondent nos. 4 & 9 has submitted that after the superannuation from service, the petitioner has been paid all the dues which were admissible in law and since he has not made any grievance in this respect, no order is necessary to be passed against the respondent nos. 4 & 9. 10. Learned counsel appearing for the State of Bihar has submitted that in terms of Section 53 read with Schedule VIII of the Bihar Reorganisation Act, 2000, the liability to pay pension of an employee, who retired from a place which now falls under the State of Jharkhand, would be of the State of Jharkhand and not the State of Bihar. He further submits that there is an agreement reached between both the States – the State of Bihar and the State of Jharkhand that if an employee retires from a place falling under the territorial jurisdiction of the State of Jharkhand, the liability to pay pension to such an employee would be with the State of Jharkhand. To fortify his contention, he relies on different orders passed by this Court in W.P.(S) No. 2859 of 2004, W.P.(S) No. 2860 of 2004, L.P.A. No. 123 of 2008, L.P.A. No. 388 of 2004 and an order passed in “Bharti Prasad Thakur Vs. Sidhu Kanhu University, Dumka and others” reported in (2002) 1 JLJR 491 . 11. To fortify his contention, he relies on different orders passed by this Court in W.P.(S) No. 2859 of 2004, W.P.(S) No. 2860 of 2004, L.P.A. No. 123 of 2008, L.P.A. No. 388 of 2004 and an order passed in “Bharti Prasad Thakur Vs. Sidhu Kanhu University, Dumka and others” reported in (2002) 1 JLJR 491 . 11. Before adverting to the facts of the case, it would be appropriate to notice the provisions under Section 53 and Schedule VIII of the Bihar Reorganisation Act, 2000. “53. Pensions – The liability of the existing State of Bihar in respect of pensions and other retirement benefits shall pass to, or be apportioned between, the successor States of Bihar and Jharkhand in accordance with the provisions contained in the Eighth Schedule to this Act. ............................................................................ ........................................................................... THE EIGHTH SCHEDULE APPORTIONMENT OF LIABILITY IN RESPECT OF PENSIONS AND OTHER RETIREMENT BENEFITS 1. Subject to the adjustments mentioned in paragraph 3, each of the successor State shall in respect of pension and other retirement benefits sanctioned before the appointed date, pay from their respective treasuries. 2. Subjects to the said adjustments, the liability in respect of pensions and other retirement benefits of officers serving in connection with the affairs of the existing State of Bihar, who retire or proceed on leave preparatory to retirement before the appointed day, but whose claims for pensions and other retirement benefits are outstanding immediately before that day, shall be the liability of the State of Bihar. 3. Subject to the said adjustments, sanctions of such pension and other retirement benefits by the competent authority may be given in those cases, in which their office falls in the territory of Jharkhand State. 4. There shall be computed, in respect of the period commencing on the appointed day and ending on the 31st day of March of that financial year and in respect of each subsequent financial year, the total payments made in the successor states in respect of pensions and other retirement benefits referred to in paragraphs 1 and 2. 4. There shall be computed, in respect of the period commencing on the appointed day and ending on the 31st day of March of that financial year and in respect of each subsequent financial year, the total payments made in the successor states in respect of pensions and other retirement benefits referred to in paragraphs 1 and 2. the total representing the liability of the existing State of Bihar in respect of pensions and other retirement benefits shall be apportioned between the successor States in the ratio of number of employees of each successor State and any successor State paying more than its due share shall be reimbursed the excess amount by the successor State or State paying less. 5. The liability of the existing State of Bihar in respect of pensions and other retirement benefits granted before the appointed day and drawn in any area outside the territories of the existing state shall be the liability of the State of Bihar paying subject to adjustment, to be made in accordance with paragraph 3 as if such pensions and other retirement benefits had been drawn in any treasury in the State of Bihar under paragraph 1. 6. The liability in respect of the pensions and other retirement benefits of any officer serving immediately before the appointed day in connection with the affairs of the existing State of Bihar and retiring on or after that day, shall be that of the successor State granting him the pension and other retirement benefits, but the portion of the pension and other retirement benefits attributable to the service of any such officer before the appointed day in connection with the affairs of the existing State of Bihar shall be allocated between the successor States in the population ratio and the Government granting, the pension and other retirement benefits shall be entitled to receive from each of the other successor States its share of this liability. 7. Any reference in this Schedule to a pension and other retirement benefits shall be construed as including a reference to the commuted value of the pension and other retirement benefits.” 12. At this stage, it would be useful to notice the orders passed by this Court which have been relied on by the learned counsel appearing for the State of Bihar. At this stage, it would be useful to notice the orders passed by this Court which have been relied on by the learned counsel appearing for the State of Bihar. In “Bharti Prasad Thakur” (supra), this Court has observed that the pension of an employee retiring prior to 15.11.2000 may be given by the State of Jharkhand in case the office from which the officer retired, falls in the territory of the State of Jharkhand. I find that as a proposition of law this Court has not held that, if a person retires prior to the appointed date i.e., 15.11.2000, from a place falling within the territory of Jharkhand, the liability of pension would be fastened to the State of Jharkhand. In the peculiar facts and circumstances of the case, an order was passed by this Court in “Bharti Prasad Thakur” (supra) which would be binding only between the parties in the said case. 13. Similarly, from all other cases which the learned counsel appearing for the State of Bihar has cited, I am unable to gather that this Court has laid down the law that it would be the liability of the State of Jharkhand to pay the pensionary benefit of an employee who has retired prior to the appointed day from a place which now falls under the territory of the State of Jharkhand. 14. From a bare reading of the provisions contained in paragraph nos. 2 and 5 of the Schedule VIII of the Bihar Reorganisation Act, 2000, it is amply clear that it is the liability of the State of Bihar to pay the retiral benefits to an employee who retired prior to the appointed day. However, a provision has been made in Paragraph 3 for adjustment of liability between the two States. I am of the view that, a provision for adjustment to be arrived at between the two States, would not absolve the State of Bihar from its liability to pay pension, as mentioned under Schedule VIII of the Bihar Reorganisation Act. It is the liability of the State of Bihar to pay the retiral benefit to an employee who has retired prior to the appointed day. The reason for incorporating such a provision is apparently clear. It is the liability of the State of Bihar to pay the retiral benefit to an employee who has retired prior to the appointed day. The reason for incorporating such a provision is apparently clear. Since, prior to the appointed day any person who was an employee under the Government, was an employee of the Government of Bihar and therefore, there was no question of apportionment of the liability between the two States. 15. Now, coming to the facts of the case, admittedly the petitioner was appointed under the Government of Bihar and he was sent on deputation on 01.10.1973 to the Bihar Food and Civil Supplies Corporation. The deputation of the petitioner would not terminate his service under the Government of Bihar. The order of deputation was passed by the Secretary of the department. 16. In “State of Tamil Nadu and others Vs. V. S. Balakrishnan & Others” reported in 1994 Supp (3) SCC 204, the Hon'ble Supreme Court has held that, a government servant cannot be deprived of his status as “Civil Servant” without his consent. In “State of Gujarat Vs. Raman Lal Keshav Lal Soni” reported in (1983) 2 SCC 33 , the Hon'ble Supreme Court has held that, 30. “..............Government servants do not cease to be government servants merely because, for the time being, they are allotted to different Panchayat Institutions and are paid out of the funds of those institutions...........” 17. In the present case, it is not the case of the respondents that there was any option given to the employees on deputation with Bihar State Civil Supplies Corporation to get permanent absorption in the corporation and the petitioner opted for exercising such option given to him. It is also not the case of the respondents that the post on which the petitioner was working was transferred to the Corporation. 18. It has been brought to the notice of the Court that the Jharkhand Food and Civil Supplies Corporation came into existence on 01.04.2011 and therefore, it is amply clear that till 31.03.2011, all the employees like the petitioner who were on deputation with the Bihar Food and Civil Supplies Corporation remained the employees of the Government of Bihar. The petitioner has retired from service w.e.f. 31.07.1991 and a new State of Jharkhand was created on 15.11.2000 and thus, the petitioner has remained an employee of the Government of Bihar. The petitioner has retired from service w.e.f. 31.07.1991 and a new State of Jharkhand was created on 15.11.2000 and thus, the petitioner has remained an employee of the Government of Bihar. From the counter-affidavit filed on behalf of the State of Bihar, I do not find any definite objection in so far as, the entitlement of the petitioner for grant of pension is concerned. The only objection taken by the State of Bihar is that, there has been no response to the letters written by the State of Bihar to the State of Jharkhand. I find that such letters have been written to the State of Jharkhand on 24.05.2013 and 26.08.2013 though the petitioner superannuated from service in the year, 1991 itself. These letters have been written only for avoiding the claim of the petitioner. The State as a litigant cannot be permitted to play hide and seek. In the present proceeding only after a direction for seeking instruction was passed, a vague affidavit has been filed by the State of Bihar. 19. In “S.K. Mastan Bee Vs. General Manager, South Central Railways and another, reported in (2003) 1 SCC 184 , the plea raised by the respondents that a claim for the pension was raised after more than 20 years, has been rejected by the Hon'ble Supreme Court and it has been held that it is an obligation of the employer to calculate and pay the retiral dues of the employee. Denial of pension to an employee is violative of Article 21 of the Constitution of India. The Hon'ble Supreme Court has dealt with the issue as under: 6. “We notice that the appellant’s husband was working as a Gangman who died while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband’s employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. On the death of the husband of the appellant, it was obligatory for her husband’s employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant’s lack of resources to approach the legal forum timely is not disputed by the Railways. The question then arises on facts and circumstances of this case, was the Appellate Bench justified in restricting the past arrears of pension to a period much subsequent to the death of the appellant’s husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us hereinabove, the learned Single Judge had rejected the contention of delay put forth by the Railways and taking note of the appellant’s right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, in spite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1.4.1992. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, in spite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1.4.1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1.4.1992.” 20. In a welfare state, pension is treated not only as a reward for past service but it is extended with a view to help the employee to avoid destitution in old age. The concept of retiral benefits has evolved on the consideration that an employee who rendered service during the useful years of his life must not be left to penury in his old age. 21. The term 'pension' has been defined in American Jurisprudence as thus, “However, by modern usage, the ‘pension’ is not restricted to pure gratuities. Thus, it has been held that a pension paid to a governmental employee for long and efficient service is not an emolument the payment of which is barred by a State constitutional provision, but is a deferred portion of the compensation earned for services rendered. … A pension is closely akin to wages in that it consists of payments provided by an employer, is paid in consideration of past services, and serves the purpose of helping the recipient meet the expense of living.” 22. … A pension is closely akin to wages in that it consists of payments provided by an employer, is paid in consideration of past services, and serves the purpose of helping the recipient meet the expense of living.” 22. The concept of 'pension' has been discussed in Halsbury's Laws of England in the following words: “Meaning of ‘pension’: ‘Pension’ means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme or arrangement having its object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement benefits.… ‘Pension’ does not include: (i) a payment to an employee which consists solely of a return of his own contributions, with or without interest; (ii) that part of a payment to an employee which is attributable solely to additional voluntary contributions by that employee made in accordance with the scheme or arrangement; (iii) a periodical payment or lump sum, insofar as that payment or lump sum represents compensation under the statutory compensation schemes and is payable under a statutory provision, whether made or passed before, on or after 3171978.” 23. The concept of 'pension' has also been described in Corpus Juris Secundum as thus, “A pension is a periodical allowance of money granted by the Government in consideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the continued life of the recipient.” 24. In “Deokinandan Prasad Vs. State of Bihar and Others”, reported in (1971) 2 SCC 330 , the Hon'ble Supreme Court finally set at rest the ongoing debate regarding the nature of pension by holding that the right of a person to receive pension is akin to right to property under Article 31 (1) and by a mere executive order the State has no power to withhold the same. The decision by the Constitution Bench of the Hon'ble Supreme Court in “Deokinandan Prasad Vs. The decision by the Constitution Bench of the Hon'ble Supreme Court in “Deokinandan Prasad Vs. State of Bihar and Others” (supra) finally settled the 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, as wrong. 25. In “D.S. Nakara and Others Vs. Union of India”, reported in (1983) 1 SCC 305 , a Constitution Bench of the Hon'ble Supreme Court has held as under, 28. “Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Douge v. Board of Education a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want. 29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socioeconomic justice which inheres 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. One such saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. 31. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. 31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socioeconomic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” 26. In Sudhir Chandra Sarkar Vs. Tata Iron and Steel Co. Ltd. and Others, reported in (1984) 3 SCC 369 , the Hon'ble Supreme Court, has held as under, 16. “Pension and gratuity coupled with contributory provident fund are well recognised retiral benefits. These retiral benefits are now governed by various statutes such as the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, the Payment of Gratuity Act, 1972. These statutes were legislative responses to the developing notions of fair and humane conditions of work, being the promise of Part IV of the Constitution. Article 37 provides that “the provisions contained in Part IV — Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. Article 37 provides that “the provisions contained in Part IV — Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. Article 41 provides that “the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. Article 43 obligates the State “to secure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure. . .”. The State discharged its obligation by enacting these laws. But much before the State enacted relevant legislation, the trade unions either by collective bargaining or by statutory adjudication acquired certain benefits, gratuity being one of them. Pension and gratuity are both retiral benefits ensuring that the workman who has spent his useful span of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment. It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service. 17. Can such social security measure be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earned the same by long continuous service? If Rule 10 is interpreted as has been done by the High Court, such would be the stark albeit unpalatable outcome. It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated. If Rule 10 is interpreted as has been done by the High Court, such would be the stark albeit unpalatable outcome. It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated. In Burhanpur Tapti Mills Ltd. v. Burhanpur Tapti Mills Mazdoor Sangh this Court observed that : “a scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a period payment of a stated sum”. Undoubtedly both have to be earned by long and continuous service. 18. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for loyal service rendered 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. This view held the field and a suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well-settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer. Deokinandan Prasad v. State of Bihar, State of Punjab v. Iqbal Singh and D.S. Nakara v. Union of India. If pension which is the retiral benefit as a measure of social security can be recovered through civil suit, we see no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par.” 27. In “Poonamal Vs. Union of India”, reported in (1985) 3 SCC 345 the Hon'ble Supreme Court, has held as under, 7. “.........Pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. “.........Pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. (Deoki Nandan Prasad v. State of Bihar, State of Punjab v. Iqbal Singh and D.S. Nakara v. Union of India.) Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, oldage, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakara judgment. At the hearing of this group of matters we pointed out that since the family pension scheme has become noncontributory effective from September 22, 1977 any attempt at denying its benefit to widows and dependents of Government servants who had not taken advantage of the 1964 liberalisation scheme by making or agreeing to make necessary contribution would be denial of equality to persons similarly situated and hence violative of Article 14. If widows and dependents of deceased Government servants since after September 22, 1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the Government servants having not agreed to make the contribution, could not be differently treated because that would be introducing an invidious classification among those who would be entitled to similar treatment. When this glaring dissimilar treatment emerged in the course of hearing in the Court, Mr B. Dutta learned counsel appearing for the Union of India requested for a short adjournment to take further instructions.” 28. In “PEPSU RTC Vs. Mangal Singh and Others”, reported in (2011) 11 SCC 702 , the Hon'ble Supreme Court has held as under, 49. When this glaring dissimilar treatment emerged in the course of hearing in the Court, Mr B. Dutta learned counsel appearing for the Union of India requested for a short adjournment to take further instructions.” 28. In “PEPSU RTC Vs. Mangal Singh and Others”, reported in (2011) 11 SCC 702 , the Hon'ble Supreme Court has held as under, 49. “To sum up, we state that the concept of pension has been considered by this Court time and again and in a catena of cases it has been observed that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is in the nature of deferred payment for the past services. It is a social security plan consistent with the socioeconomic requirements of the Constitution when the employer is State within the meaning of Article 12 of the Constitution rendering social justice to a superannuated government servant. It is a right attached to the office and cannot be arbitrarily denied. (See A.P. Srivastava v. Union of India, Vasant Gangaramsa Chandan v. State of Maharashtra, Subrata Sen v. Union of India, Union of India v. P.D. Yadav, Grid Corpn. of Orissa v. Rasananda Das and All India Reserve Bank Retired Officers Assn. v. Union of India.).” 29. In view of the decisions of the Hon'ble Supreme Court, there cannot be any manner of doubt that an employee has a right to receive his/her retiral dues and an employee can be denied demand of the retiral benefits only under a procedure prescribed under the law. 30. In view of the aforesaid, this writ petition is allowed in so far as, the grant of pension to the petitioner by the State of Bihar is concerned. The State of Bihar is directed to calculate and pay pension to the petitioner within a period of eight weeks. Such payment shall be made with 6% simple interest from 01.08.1991. 31. With the aforesaid direction, this writ petition is disposed of. However, there shall be no order as to cost.