Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1718 (HP)

Neeraja Marwaha v. State of H. P.

2014-11-21

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, Judge Petitioner was promoted to the post of Junior Assistant vide office order dated 7.6.2000. The promotion orders were withdrawn by the respondents on 17.3.2003. Petitioner challenged order dated 17.3.2003 by way of original application. It was transferred to this Court and assigned CWP (T) No.9658 of 2008. It was decided on 22.3.2010. Respondents preferred an appeal against the judgment dated 22.3.2010. The same was disposed of by a Division Bench of this Court on 24.4.2012. Fact of the matter is that the judgment rendered in Ram Lal Sharma and others vs. State of H.P. and another stood implemented, as per statement of the learned Additional Advocate General recorded in LPA No. 484 of 2012 decided on 26.11.2013. Case of the petitioner was required to be looked into on the analogy of Ram Lal Sharma's case. 2. Petitioner has sought voluntary retirement on 31.5.2013. The gratuity of the petitioner was sanctioned. However, the Chief Medical Officer sent a communication to the Director of Health Services bringing to his notice that decision of the Tribunal was still awaited. The Chief Medical Officer thereafter vide office order dated 6.6.2014 withheld a sum of Rs. 1,06,238/- only on the ground that original application was pending decision. The contents of letter dated 6.6.2014 were factually incorrect. The original application filed by the petitioner, which was transferred to this Court and converted as CWP (T) No.9658 of 2008 stood decided on 22.3.2010. The LPA No.712 of 2011 preferred against order dated 22.3.2010 was decided by a Division Bench of this Court and on the basis of the statement of learned Additional Advocate General recorded in LPA No. 484 of 2012, the petitioner would be entitled to similar treatment, which was accorded to Ram Lal Sharma. 3. Respondent being a welfare State could not be oblivious to the developments which have taken place from 22.3.2010 till LPAs No. 712/2011 and 484 of 2012 decided on 24.4.2012 and 26.11.2013. The gratuity is a property and not a bounty. 4. Their Lordships of the Hon'ble Supreme Court in State of Jharkhand and others vs. Jitendra Kumar Srivastava and another, (2013) 12 SCC 210 have held that it is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. 4. Their Lordships of the Hon'ble Supreme Court in State of Jharkhand and others vs. Jitendra Kumar Srivastava and another, (2013) 12 SCC 210 have held that it is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus a hard earned benefit which accrues to an employee and is in the nature of ?property?. Their Lordships have held as under: ?8. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words: ?18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? 19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. 20. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors.[1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377SC?. It is thus hard earned benefit which accrues to an employee and is in the nature of ?property?. This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India. 9. Having explained the legal position, let us first discuss the rules relating to release of Pension. 14. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330 , as is apparent from the following discussion: ?27. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19 (1) (f) and 31 (1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 28. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19 (1) (f) and 31 (1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter- affidavit that no question of any fundamental right arises for consideration. Mr. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter- affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19 (1) (f) and 31 (1) of the Constitution. 29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein. 30. The question whether the pension granted to a public servant is property attracting Article 31 (1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31 (1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31 (1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority. 31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. 32. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 : [1968] 3 SCR 489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19 (1) (f) and 31 (1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property". 33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by Sub-article (5) of Article 19. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law?. 15. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651 , this Court recognized that even when, after the repeal of Article 19 (1) (f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10 (1) of the West Bengal Services (Death-cum-- Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. 16. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in ?property?. Article 300 A of the Constitution of India reads as under: ?300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.? Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.? 5. Accordingly, in view of the analysis and discussion made hereinabove, the writ petition is allowed. Annexure P-8 to the effect whereby a sum of Rs.1,06,238/-has been withheld, is quashed and set aside. The respondents are directed to release a sum of Rs.1,06,238/- to the petitioner within a period of six weeks from today with interest @ 8% per annum. Pending application (s), if any, also stands disposed of. No cost.