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Gauhati High Court · body

2016 DIGILAW 708 (GAU)

BIRENDRA RAJBANGSHI v. STATE OF ASSAM

2016-08-02

MANOJIT BHUYAN

body2016
Heard Mr. N.K. Kalita, learned counsel for the petitioner as well as Mr. B.J. Talukdar, learned counsel representing respondent nos. 1, 2, 3 and 4. Also heard Mr. C. Baruah, learned counsel representing respondent no. 5. Private Respondent No. 6 although represented, the learned counsel has not appeared today despite name being shown in the Cause List. 2. The short facts leading to the institution of this case is that the petitioner retired as Sub-Inspector from Assam Police on 31.01.2015 on attaining the age of superannuation. Although the petitioner had submitted all the papers facilitating payment of pension, however, the State Respondents have not initiated the processing of the pension papers. In this respect the petitioner had also submitted legal notice on 24.03.2015. As nothing was forth-coming, the petitioner is before this Court. 3. In the affidavit-in-opposition filed on behalf of respondent nos. 2, 3 and 4, stand taken is that the private respondent no. 6, being the wife of the petitioner but living separately, has instituted Title Suit No. 74/2013 before the Court of the Munsiff, Kamrup (M), Guwahati seeking declaration that she is the legally married wife of the petitioner and her name be entered in the service record of the petitioner. According to the said respondents, the said Title Suit is pending disposal before the Court below and for the fact that the matter is sub judice, the pension papers of the petitioner have not been processed. In the said affidavit-in-opposition it is also indicated that the processing of the pension papers of the petitioner have been put on hold in view of a letter dated 06.05.2015 obtained from the Government Pleader, Kamrup(M), Guwahati. Despite the fact that the pension papers have not yet been processed, a stand is also taken that the petitioner is being paid provisional pension in terms of Rule 22(1) of the Assam Services (Pension) Rules, 1996. 4. Mr. Kalita submits that the withholding of regular pension payable to the petitioner and/or putting on hold the processing of the pension papers, is wholly illegal and not sustainable in law. In this respect, Mr. Kalita makes reference to Rule 21 of the Assam Services (Pension) Rules, 1969 and that of the case in State of Jharkand and Others v. Jitendra Kumar Srivastava, reported in AIR 2013 SCC 3383. 5. In this respect, Mr. Kalita makes reference to Rule 21 of the Assam Services (Pension) Rules, 1969 and that of the case in State of Jharkand and Others v. Jitendra Kumar Srivastava, reported in AIR 2013 SCC 3383. 5. I have heard the learned counsels for the parties and have also perused the materials available on record. As the petitioner is yet to receive his regular pension, the determination of this case has received due importance. The right to withhold or to withdraw a pension or any part of it, flows out from Rule 21 of the aforesaid Rules of 1969. The said provision contemplates that the right to withhold or withdraw pension and/or to order recovery in the event of any pecuniary loss caused to the Government, it has to be established that in a departmental or judicial proceeding the pensioner has been found guilty of grave misconduct or negligence during the period of his service. In the instant case and as appearing from the pleadings of either parties, there is no reference to any pecuniary loss suffered by the Government or that there had been any departmental or judicial proceeding where the petitioner was found guilty of grave misconduct or negligence. All that is indicated in the affidavit-in-opposition is that the pension papers of the petitioner have not been processed due to the pendency of the Title Suit filed by the respondent no. 6 and in view of letter dated 06.05.2015 submitted by the Government Pleader, Kamrup(M), Guwahati. On this count alone, it becomes abundantly clear that the State Respondent is without any right or jurisdiction to withhold payment of regular pension to the petitioner and/or to put on hold the processing of his pension papers. 6. In the case of State of Jharkand (supra) the Apex Court have held that payment of gratuity and pension are not by way of bounty. It is earned by an employee by dint of his long, continuous, faithful and unblemished service. The right to receive pension 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 is earned by an employee by dint of his long, continuous, faithful and unblemished service. The right to receive pension 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. The Apex Court have also held that pension and retirement dues are hard earned benefits which accrues to an employee and is in the nature of “property” within the meaning of Article 300A of the Constitution of India. 7. It thus transpire that under Rule 21 of the aforesaid Rules of 1969, the power to withhold pension etc. can only be done when a finding is recorded, either in a departmental or judicial proceeding, that the employee had committed grave misconduct or negligence during the period of his service. Having regard to the said provision under Rule 21 and that of the law laid down by the Apex Court in the case of State of Jharkand (supra), no right inheres upon the State Respondents to withhold payment of pension to the petitioner and/or to put on hold the processing of the pension papers. The reason assigned in the affidavit-in-opposition is no reason in the eye of law. 8. In view of the above, this writ petition stands allowed with direction to the State Respondents to forthwith take steps for processing the pension papers of the petitioner and thereafter to make payment of pension, gratuity, etc. as may be found due to the petitioner, as expeditiously as possible, preferably with an outer limit period of 6(six) months from today. Resultantly, this writ petition stands allowed. No costs.