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2015 DIGILAW 839 (GAU)

Satya Narayan Prasad Gupta v. State of Assam

2015-07-15

T.VAIPHEI

body2015
JUDGMENT : Having heard Mr. K.D. Chetri, the learned counsel for the petitioner, Mr. U.K. Goswami, the learned standing counsel for Education (Secondary) Department, Assam, Mrs. K. Devi, the learned Government Advocate, Assam and Mr. R.K. Talukdar, the learned standing counsel for AG, I am of the view that this writ petition shall have to be allowed. 2. Before proceeding further, I may briefly refer to the facts leading to the filing of this writ petition. The petitioner is aggrieved by the refusal of the respondents to release a sum of Rs.48,600/- which was deducted from his death-cum-retirement gratuity after his retirement from service on superannuation on 31-8-2012: a paltry sum of Rs.9,510/- per month was, however, paid to him by way of provisional pension. This Court by the order dated 23-6-2014 had directed the respondents to finalize his pension case on or before 31-8-2014, for which the President & Secretary of the School Management Committee, Tarun Ram Phukan Hindi High School and the present Headmaster of the school should furnish the non-liability certificate forthwith. Pursuant to this order, the respondent No. 2 issued the order dated 3-9-2014 directing the payment of provisional pension and provisional DCRG amounting to Rs.5,15,245/- to the petitioner while refusing to release Rs.48,6000/-. The respondent No. 2 in his affidavit-in-opposition has justified the withholding of the aforesaid amount on the ground that there is allegation of financial irregularities on the part of the petitioner and, as such, the Headmaster of the school could not issue the non-liability certificate. The question which now falls for consideration in this writ petition is whether the justification of the respondents for withholding the amount in question, which is withheld for payment, is tenable in law or not? 3. It is now well settled that gratuity and pension are not bounties. An employee earns this benefit by the 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 a “property”. The right to property cannot be taken way except in accordance with the procedure laid down by law. The term “pension” is defined by Rule 9 of Assam Services (Pension) Rules, 1969 (“the Rules” for short) as follows:- “9. Pension.- Except when the term “Pension” is usedin contradistinction to Gratuity, “Pension” includes Gratuity and Death-cum-retirement Gratuity.” 4. The right to property cannot be taken way except in accordance with the procedure laid down by law. The term “pension” is defined by Rule 9 of Assam Services (Pension) Rules, 1969 (“the Rules” for short) as follows:- “9. Pension.- Except when the term “Pension” is usedin contradistinction to Gratuity, “Pension” includes Gratuity and Death-cum-retirement Gratuity.” 4. The provision dealing with the right of the Governor to withhold or withdraw pension is provided for in Rule 21 of the Rules, the relevant portions whereof are reproduced below:- “21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pension the petitioner is found guilty of grave misconduct or negligence during the period of his service, including, service rendered upon re-employment after retirement provided that – (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service: Explanation. - The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. (b) such departmental proceeding, if not instituted while the 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 of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service. (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or event which took place more than 4 years before such institution; and (d) the Assam Service Commission shall be consulted before final orders are passed. * * * 5. In State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 , the Apex Court had an occasion to deal with the provisions of Bihar Pension Rules, 1950, which are made applicable to the State of Jharkhand. That was a case in which disciplinary proceedings were initiated against the respondent who had retired from service after attaining the age of superannuation, but the said enquiry proceedings were still pending against him. The State Government sanctioned 90% of the pension amount of the respondent by withholding 10% of his pension. He was also not paid leave encashment and gratuity. Aggrieved by this, the respondent filed a writ petition before the High Court of Jharkhand for releasing the withheld amounts, but the High Court dismissed the writ petition. The respondent took the matter to appeal before the Division Bench of the High Court which allowed the writ petition and directed the payment holding that the State Government had no powers to withhold pension in the absence of specific rules under the Bihar Pension Rules, 1950. The State Government then filed an appeal before the Apex Court. The respondent took the matter to appeal before the Division Bench of the High Court which allowed the writ petition and directed the payment holding that the State Government had no powers to withhold pension in the absence of specific rules under the Bihar Pension Rules, 1950. The State Government then filed an appeal before the Apex Court. After carefully making comparative reading of the provisions of the Assam Pension Rules, 1969 and the Bihar Pension Rules, 1950, I have no hesitation to conclude that both the provisions dealing with the power of State Government to withhold pension are virtually identical. To appreciate the controversy, paragraphs 9, 10, 11, 12 and 13 of the law report will be beneficial, and the same read thus:- “9. Having explained the legal position, let us first discuss the rules relating to release of pension. 10. The present case is admittedly governed by the Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under:- “43. (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:” 11. From the reading of the aforesaid Rule 43(b), following position emerges: (i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. (ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceedings are pending. (iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings. (iv) This power can be invoked only when the proceedings are concluded finding guilty and not before. 12. (iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings. (iv) This power can be invoked only when the proceedings are concluded finding guilty and not before. 12. There is also a proviso to Rule 43(b), which provides that: “(a) such departmental proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made— (b) judicial proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b) puts some conditions i.e. departmental proceeding as indicated in Rule 43(b), if not instituted while the government servant was on duty, then it shall not be instituted except: (a) With the sanction of the Government, (b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. Thus, insofar as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated. 13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. 13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.” 6. Thus, on a parity of reasoning, the State-respondents under the Assam Services (Pension) Rules, 1969 also have no power to withhold payment of the aforesaid amount as the same forms a part of the pension of the petitioner. When pointedly asked by me at the time of hearing, the learned standing counsel frankly admitted that the petitioner was never guilty of grave misconduct or negligence which resulted in pecuniary loss to the Government during the period of his service. Even if a departmental enquiry or criminal proceedings are pending against him also, as held by the Apex Court in Jitendra Kumar Srivastava (supra), the power of recovery or withholding can be invoked only after completion of the proceedings. The mere fact that there is allegation of financial irregularity is not simply enough to deny him all or any of the pension benefits including gratuity as they form a part of the pension as defined in Rule 9 of the Rules, 1969. Moreover, it is now too late in the day to proceed against the petitioner either by departmental enquiry or judicial proceedings: he had already retired from service after attaining the age of superannuation on 31-8-2012. In this view of the matter, the decision of the respondents to withhold payment of the sum of Rs.48,600/- is arbitrary and illegal, which cannot be sustained in law. 7. The result of the foregoing discussion is that this writ petition succeeds. The respondent authorities are directed to release the sum of Rs.48,600/- withheld by them to the petitioner within a period of one month from the date of receipt of this judgment, failing which a simple interest at the rate of 15% per annum from the date the said amount is due shall enure to his benefit. No costs.