JUDGMENT & ORDER : While the petitioner was serving as Joint Director (Vety), a criminal case was registered against him as VPS Case No. 22(6)06 u/s 409/420/12-B of the Indian Penal Code and also u/s 13(1)(C) read with section 13(2) of PC,1988. In connection with that case, he was taken into custody. Since he remained in custody for more than 48 hours, petitioner was placed under suspension on 26.7.2006. During his suspension, the petitioner, on attaining the age of superannuation, was retired on 9.2.2009 while he was under suspension. Much before that, a proceeding was initiated under the provisions of “The Manipur Public Servant Personal Liability Act 2006” (hereinafter refers to as the Act of 2006) for determining the illegal action of the petitioner causing unauthorized liability upon the State Government. On 17.6.2010 Principal Secretary (Finance), Govt. of Manipur passed an order in the said proceeding for recovery of a sum of Rs.53,16,608/- out of the total alleged misappropriation amount of Rs.1,88,83,124/-. That order was challenged before this Curt in WP(C) No. 525 of 2010. 2. This Court, having found that impugned order has been passed without following procedure laid down under the Rules, was pleased to set aside the impugned order dated 17.6.2010 giving liberty to the respondent to start a fresh inquiry in terms of the Act and Rules. During hearing of the matter, it was placed before me that in terms of the order passed by this Court, proceeding has been initiated but still it has not been concluded. However, according to the case of the petitioner, he subsequently submitted representation asking the respondents to release the amount of retiral benefits which he is entitled to but the authority did not pay any heed to his request and thereby this writ petition has been filed for directing the respondents to release the amount of pension and other retiral benefits. 3. Mr. Tarunkumar, learned counsel for the petitioner submits that right to receive pension is recognized under the law as a right to property in terms of Art.300A of the Constitution of India which right cannot be taken away in absence of any statutory provision. In this regard, it was further submitted that the authority under the garb of the proceeding taken under the said Act of 2006, has been withholding the pension and other retiral benefits. In this regard, it was further submitted that the authority under the garb of the proceeding taken under the said Act of 2006, has been withholding the pension and other retiral benefits. But, none of its provisions or rules made there under puts an embargo over the right to withhold the pension and other retiral benefits. Further submission which was advanced is that only on a determination of illegal act on the part of a person causing unauthorized liability upon the State, the State, in terms of Rule 6 of said Rule of 2006, can recover the amount of unauthorized liability determined from the salary of the public servant or even after superannuation but that determination of illegal action causing unauthorized liability should have been determined before public servant gets retired on superannuation. As nothing is there either under the Act or the Rule even after superannuation of public servant which empowers the Government to continue with the proceeding under the Act or Rule to determine unauthorized liability and to recover it from the salary or from the retiral benefit any withholding of pension or other retiral benefits before culmination of the proceeding under the Act or the Rule that too before a public servant gets retired on superannuation is illegal and thereby the authority be directed to release the amount of pension and retiral benefits due to be paid to the petitioner. 4. As against this, Mr. Ashang, learned counsel appearing for the State and also Mr. S. Rupachandra, learned ASG appearing for the Union of India submit that an Act named as “The Manipur Public Servant Personal Liability Act, 2006” and Rules made there under have been framed to determine the illegal/irregular action on the part of the public servant causing unauthorized liability on the Government and to recover the amount from the salary or the retiral benefits of the public servant. This Act operates in the field in addition to any other Act applicable and thereby when it was found that the petitioner by illegal action has caused unauthorized liability upon State by misappropriating a sum of Rs.1,88,63,124/- a proceeding was initiated under the Act to determine the illegal action and unauthorized liability caused on account of that illegal action and thereby a Committee did find that due to illegal action of the petitioner, Govt. being put to a loss of Rs.53,16,608/- had passed order for recovery of that amount. However, that order was challenged before this Court and this Court having set aside that order, directed to take the proceeding afresh and to pass order in accordance with law. In such event, there has been no illegality on the part of the respondents to withhold the amount of pension and other retiral benefits. Learned counsel, in support of his submission, has put much emphasis upon the provisions as is there under Rule 6 which speaks about recovery of unauthorized liability from the public servant even after his superannuation and under these circumstances, prayer which has been made on behalf of the petitioner for directing the authority to release amount of pension and consequential benefits is untenable and the writ application is fit to be dismissed. 5. Thus, from the facts noticed above, it does appear that pension of the petitioner, who is an accused in a case, has been with held by the authority. It be stated that right to receive pension has been recognized as a right to property and thereby a person cannot be deprived of his pension without authority of law which is the constitutional mandate enshrined in Art.300A of the Constitution which reads as follows: “300A. Persons not to be deprived of property save by authority law.- No person shall be deprive of his property save by authority of law.” Article 300A has been incorporated in the Constitution in Chapter IV by virtue of 44th Amendment and thereby right to property is no longer remained a fundamental right but still it happens to be constitutional or statutory right and thereby it cannot be taken away in absence of any law. 6. In the instant case, pension and retiral benefits of the petitioner has been withheld on account of a proceeding being undertaken under the Act of 2006 and Rules made there under which has been legislated to fix personal liability of the public servant of Manipur causing unauthorized liability upon the Government through irregular action and for recovery of such amount from the personal income including salary and other entitlements of the public servant. Liability, public servant and unauthorized liability has been defined in clause 2(e), (g) and (j) which reads as follows: “2.(e) “liability” means the liability for payment of salary, wages, allowances, leave salary, leave encashment, medical benefits and other service entitlements, pension, gratuity, family pension, special pension and other retirement benefits, grant-in-aid, compensation for land, buildings, damages, injury and death, payment of bills, works, and supply orders from the Consolidated Fund of the State and the Public Account of the State or the Fund of the agencies set up by the Government. (g) “public servant’ means all functionaries, officers and employees of the State of Manipur appointed by and in the name of the Governor and includes Ministers, Officers and employees of the State Government and its agencies and the autonomous bodies including statutory bodies, public sector undertakings, companies, aided institutions, societies and bodies receiving grant-in-aid from the Government. (j) “unauthorized liability” means liability arising out of irregular actions as defined in section 2(d).” 7. Further, section 5 of the Act prescribes for measures to be taken for recovery of unauthorized liability which reads as follows: “5. Measures to provide for recovery of unauthorized liability.- (1) All moneys involved or incurred payment and/or liquidation of a liability on the part f the State Government arising from irregular action of a public servant shall be recovered from the salary and entitlements payable to or incomes of such public servant irrespective of the liability payable in pursuance of an order by any public servant or competent authority under a State law for the time being and law court. (2) Nothing of the above sub-section shall apply to the case where such irregularity have been rectified by according ex-post facto approval by the State Government.” Any imposition of penalty of the liability can be made only on the recommendation of the High Power Committee under section 6 which reads as follows: “6. Recommendation of High Powered Committee:-No order imposing any penalty of the liability in section 5 of the Act, shall be made except on the re-commendation of a High Powered Committee after an inquiry by affording the public servant an opportunity of explanation in that regard, in the manner as may be prescribed.” 8. Recommendation of High Powered Committee:-No order imposing any penalty of the liability in section 5 of the Act, shall be made except on the re-commendation of a High Powered Committee after an inquiry by affording the public servant an opportunity of explanation in that regard, in the manner as may be prescribed.” 8. Further, I do find that in order to implement the provision of the Act, Rules named as “Manipur Public Servant Personal Liability Rules 2006” has been framed in terms of the provisions of the Act of 2006 mentioned above. Determination of irregularity of action and also liability created on account of irregular action needs to be taken under rules-3 and 4 of the Rules which reads as follows: “3. Determination of irregularity of action:- (1) An action of a public servant that creates or has the implication of creating an unauthorized liability for the State Government, shall be deemed irregular if it contradicts or violates the relevant rules. (2) An action of a public servant, if taken in compliance of a specific order and or instruction of another public servant or Administrative Head or a competent authority, shall be deemed irregular as long as it contracts or violates the relevant rules. (3) An action of a public servant or administrative Head or competent authority in passing a specific order or instruction to another public servant that contradicts or violates the existing rules as laid down by the State Government will be deemed irregular. 4. Liability for irregular actions.-(1)The unauthorized liability resulting from irregular action of a public servant shall be recovered from the salary, entitlements and incomes of the public servant. Explanation: “income” includes the value of the private property and assets of the public servant and his family members for the purpose of these Rules. (2) The unauthorized liability, when arising from irregular action of public servant entirely in pursuance of an order or instruction of another public servant or Administrative Head or competent authority, the liability for the irregular action will rest with such public servant or Administrative Head or competent authority who passed the relevant order or instruction. (2) The unauthorized liability, when arising from irregular action of public servant entirely in pursuance of an order or instruction of another public servant or Administrative Head or competent authority, the liability for the irregular action will rest with such public servant or Administrative Head or competent authority who passed the relevant order or instruction. (3) the unauthorized liability, when arising from irregular action of one or more public servant falling within the meaning of sub-rule (2) or (3) of rule 3 or otherwise, shall be recovered from the salary, entitlements and incomes of the public servants in such proportion as determined by the High Powered Committee. (4) Where an irregular action of a public servant or Administrative Head or competent authority has been rectified by a subsequent action of the public servant or the Administrative Head or the competent authority without causing financial burden on the State Government, the liability shall be treated as having been closed. (5) Where an irregular action of a public servant or Administrative Head or competent authority has been rectified by an ex-post facto approval of the State Government, the liability shall be mitigated to the extent of the approvals obtained and conveyed through a due process. (6) The closure of the liability against a public servant under these Rules will, however be without prejudice to the criminal, disciplinary and or other action for which a public servant may be liable under any other relevant laws for the time being in force.” Upon such determination of irregular action and liability on account of irregular action, recovery of unauthorized liability is to be made under Rule 6 which reads follows: “6. Recovery of the unauthorized liability.—(1) Recovery of the unauthorized financial liability arising from an irregular action shall be from the salary and entitlements payable to a public servant by the Government or his incomes at any time before or after superannuation, or completion of the period of employment, or holding of office by the public servant as the case may be. (2) where the financial liability cannot be fully recovered from the salary and entitlements payable to the public servant by the State Government, the State Government shall take suitable measure, to recover the liability from other incomes of a public servant either through institution of a suit in a court of law or any other means available as per law.” In terms of Rule 8, those determination of illegal action/irregular action and liability incurred on account of irregular action needs to be made by a Committee known as High Powered Committee who has been vested with the powers to decide the issue as aforesaid. The said provisions of rule 8 reads as follows: “8. Powers and functions of High Powered Committee:-The Committee shall have the powers to inquire into and decide on the following matters:- (i) Irregular action of a public servant; (ii) Quantum of the unauthorized liability created by the irregular action; (iii) Amount of financial liability recoverable from the public servant; (iv) Fixing the financial liability of the irregular action on and apportioning the liability amongst one or more public servant (s); (v) Manner of recovery of the financial liability; (vi) Any other relevant matters mentioned above.” 9. Thus, it is quite manifest from the scheme of the Act and Rules that first it has to be determined by the High Powered Committee about the irregular action and also liability incurred on account of that irregular action of the public servant in terms of the provisions of Rules-3 and 4 of the aforesaid rules. The expression used in Rule 3 as an action of public servant and then rule 4 as irregular action of public servant amply does indicate keeping in view the definition given on public servant in Section 2(g) that those exercises of determination of irregular action and liability incurred on account of irregular action are to be determined when a public servant is still in service. However, presently I am not going into the issue relating to the implication of proceeding under the Act and Rules being continued even after superannuation of the public servant but it is evident from all the provisions mentioned above that recovery of the liability incurred on account of irregular action of public servant can be made only upon determination of those issues. As per the case of both the parties, determination has still not been made by the High Power Committee and thereby in absence of such determination withholding of pension and retiral benefits would not be legal and proper. 10. In this regard, I may refer to a decision rendered in a case of State of Jharkhand and Ors vs. Jitendra Kumar Srivastava & Anr reported in (2013) 12 SCC 210 where the question did arise as to whether in absence of any provision in the Pension Rules, the State Government can withhold the part of pension and/or gratuity during pendency of departmental/criminal proceeding. In order to have clarity of the matter, it would be pertinent to quote rule 43 of the Bihar Pension Rules which was the subject matter and interpretation before the Hon’ble Supreme Court. The said provision reads as follows: “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 guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service rendered on reemployment after retirement. Hon’ble Supreme Court, after taking into account submission and also the provisions as contained in Art.300A of the Constitution of India as well as rule 43(6) of the Pension Rules, came to the conclusion as follows: “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. 11. 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. 11. Thus, the law which has been laid down by the Hon’ble Supreme Court, though in context of different provisions, but the issue is very much similar to that of this case of the present case is that in absence of any rule being there withholding of pension and other retiral benefits by the authority is not permissible. 12. I have already taken notice of the provisions from which it is evident that only upon determination of irregular action causing unauthorized liability, the amount of unauthorized liability can be withheld. Here in the instant case, as has been put forward on behalf of the parties that such determination has still not been made. Under the situation withholding of the amount of pension and retiral dues would be illegal and thereby the respondents are hereby directed to release the pension and retiral benefits to the petitioner admissible under law within a period of three months from the date of receipt of the copy of this order. Thus, this writ application stands allowed.