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2015 DIGILAW 222 (ORI)

Trailokyanath Behera v. State of Orissa

2015-04-03

S.N.PRASAD

body2015
JUDGMENT : S.N. Prasad, J. 1. The petitioner has filed this writ petition for refund of sum of Rs.25,000/- which was deducted by the opposite party no.2. 2. The grievance of the petitioner is that he has already retired from the Corporation service on 31.07.1995 and before that he was working as Assistant Manager in charge of Unit Office, Paradeep and after retirement when the retirement benefit has not been released to the petitioner had approached this Court being OJC No.4904 of 1996, wherein the direction was issued to release the retirement benefits and pension of the petitioner together with interest thereon at the rate of 12% per annum, but when the said amount has not been inclined to release the retirement benefits of the petitioner, the petitioner approached this Hon'ble Court by filing successive petition and during the course of pendency of the contempt petition retirement benefit has been released by submitting the cheque only for retirement benefit but did not inclined to pay the deducting amount of Rs.25,000/-. Accordingly, the said amount could not have been deducted by the management payable to the petitioner but when this Court has been pleased to direct to release the retirement benefit the opposite party had no option but to release the entire amount which the petitioner was legally entitled to be paid. 3. Learned counsel for the petitioner has submits that the opposite party no.2 filed a money suit in the court of Civil Judge (Senior Division) 1st Court, Cuttack against the petitioner bearing Money Suit No. 152 of 1998 to realise Rs. 1,30,257/- from the petitioner which is pending for adjudication by the Civil Court hence any deduction before adjudication of the said civil suit is illegal and as such the writ petition has been filed for the direction to the opposite party to release the said amount of Rs. 25,000/- along with interest. 4. After hearing the parties at length the fact which is not disputed is that the opposite party had filed a money suit before the court of the Civil Judge (Senior Division) 1st Court, Cuttack bearing Money Suit No. 152 of 1998 to realise Rs. 1, 30, 257/-. It is also not disputed that Rs.25,000/- has been deducted from the pensionary benefit of the petitioner which the opposite party has not empowered to without initiation of any proceeding as provided under the statute. 5. 1, 30, 257/-. It is also not disputed that Rs.25,000/- has been deducted from the pensionary benefit of the petitioner which the opposite party has not empowered to without initiation of any proceeding as provided under the statute. 5. This aspect of the matter has been settled by the Hon'ble Supreme Court in the case of State of Jharkhand & others vrs. Jitendra Kumar Srivastava & others reported in (2013) 12 SCC 210 wherein at Paras- 14 and 16 which is being reproduced herein below:- “The right to receive pension was recognized as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad vrs. State of Bihar, as is apparent from the following discussion: (SCC) pp. 342-43, paras 27-33). “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 12-6-1968 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 5-8-1996. 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 can not 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 understand the learned counsel to urge that if the State had passed an order granting pension and later on resiles from the order, the later order may be considered to affect the petitioners right regarding property so as to Attracts 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. 29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provision 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 mat be that for the purposes of qualifying 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 recognize the right of person like the petitioners to receive pension under the circumstances mentioned therein. 30. The question whether the pension granted to a public servant is property attracting Articles 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India. 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. The Letters Patent Bench in its decision in Union of India v/s Bhagwant Singh 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 not 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. State of Punjab. The High Court had to consider the nature of the right of an officer to get pension. 31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab. 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. 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. 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 M.P. v. Ranojirao Shinde 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 clause(5) of Article 19. Therefore, it follows that the order dated 12.6.1968, 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 (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 writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.” 16. The 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:- “300-A. 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 o this judgment becomes too obvious. Article 300-A of the Constitution of India reads as under:- “300-A. 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 o 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 300-A 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.” 6. Thus, it has been settled by the Hon'ble Supreme Court that the amount from the pentionary benefit cannot be recovered without holding any enquiry as provided under the statute. 7. Although certain amount has been released and a sum of Rs. 25,000/- has been deducted from the retirement benefit, which is absolutely unjustified decision of the opposite party without initiating any proceeding or even issuing any notice to the petitioner. 8. Moreover, since the opposite parties have already filed a money suit for recovery a sum of Rs.1, 30, 257/- in that view of the matter also there is no justifiable deduction a sum of Rs.25,000/- from the salary petitioner. 9. Hence, in view of the ratio as decided by the Hon'ble Supreme Court as referred above and in view of the facts and circumstances of this case the opposite parties are hereby directed to release a sum of Rs. 25,000/- along with 5% interest from the date of realization within the period of 8 weeks from the date of receipt of copy of this order if it has not already been released in favour of the petitioner. 10. It is made clear that this order shall not come in any way in the money suit pending before the Court of the Civil Judge (Senior Division) 1st Court, Cuttack bearing Money Suit No. 152 of 1998 to realise Rs. 1,30,257/-. With such observation and direction the writ application is disposed of.