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2017 DIGILAW 1503 (GAU)

Jombo Ratan v. State of Arunachal Pradesh

2017-12-04

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. Jakir Hussain, learned counsel for the petitioner. Also heard Mr. Subu Tapin, learned Senior Government Advocate for State Respondents No. 1, 2 & 4; and Mr. Tambo Tamin (Leriak), learned standing counsel, Horticulture Department, Government of Arunachal Pradesh, for Respondent No. 3. This is an application under Article 226 of the Constitution of India, filed by the petitioner, for a direction to the respondents to pay his pensionary benefits and other benefits within a specific period of time. Briefly stated, the case of the petitioner is that, he is a retired Director of Horticulture, Government of Arunachal Pradesh, Itanagar, and retired from service on superannuation w.e.f. 30.06.2016. The petitioner has contended that he has submitted his pension papers (Form-8) to the Respondent No. 4 viz. Director of Audit & Pension, Government of Arunachal Pradesh, Naharlagun, as well as Form-5 to the Commissioner, Horticulture, Government of Arunachal Pradesh, Itanagar. However, no pension has been sanctioned on the ground of non-receipt of vigilance clearance from the Vigilance Department due to pendency of a vigilance case against the petitioner since 2000. Despite the fact that the Superintendent of Police, SIC (Vig.) forwarded the report dated 03.05.2016 regarding vigilance clearance of the petitioner furnished by the Inspector D. Dihidar addressed to the Under Secretary (Vigilance), Government of Arunachal Pradesh, Itanagar, vide letter dated 4.5.2016, whereby it was informed that alleged misappropriation/misuse of fund has not been found established against the petitioner. It has been further contended that the Superintendent of Police, aforesaid, forwarded the Draft Prosecution Sanction vide letter dated 01.11.2016 wherein it was clearly stated that prosecution sanction is not required against the petitioner. Thereafter, the petitioner submitted representations dated 02.08.2016 and 24.10.2016 before the competent authority for granting of Vigilance Clearance Certificate but the same have not been attended to till date and no pensionary benefits has been released in favour of the petitioner in violation of Article 21 of the Constitution of India It is the further contention of the petitioner that pensionary benefits is a matter of right and no retired employee under any Government can be deprived of his pensionary benefits and the petitioner having been retired from service on 30.06.2016 who submitted his pension papers, cannot be withhold by the authority. Hence, the instant writ petition. 2. Hence, the instant writ petition. 2. The Respondents No. 1 & 3, in their affidavit-in-opposition, have averred that due to non-receipt of vigilance clearance from the vigilance Department of the State, the pension could not be released in favour of the petitioner. In view of the Office Memorandum, dated 23.07.2013, whereunder vigilance clearance is invariably required for processing pension papers of the Government employees. The Respondent No. 2 in his affidavit-in-opposition has contended that in course of an inquiry into the non-implementation of the Technology Mission Development of Horticulture in Arunachal Pradesh, Sri A.K. Purkayastha, Joint Director, Agriculture submitted an inspection report stating that he along with the present petitioner had inspected various components of Centre of Excellence (for short, 'CoE') at Dirang on 31.01.2010 and 01.02.2010 along with one Sri D.B. Singh, Horticulturist, to ascertain as to whether the Mission under reference was implemented during the period 2004-06. In the said report, spot verification of infrastructure, planting materials, interaction with beneficiaries and a few villagers as well as photographs depicted the ground realities which were explicated. However, it is admitted that the Superintendent of Police, SIC (Vigilance), submitted a report that misappropriation/misuse of public fund has not been found established against the petitioner but he had committed irregularity by signing a false report about the existence of CoE, Dirang. The Respondent No. 2 further contended that since the petitioner has retired from service, there is no necessity of according prosecution sanction under Section 19 of the Prevention of Corruption Act, 1988 (for short, 'Act of 1988') but vigilance clearance certificate could not be obtained in terms of the Office Memorandum dated 14.12.2007. 3. The letter written by the said Inspector D. Dihidar addressed to the Under Secretary (Vigilance), Government of Arunachal Pradesh, Itanagar, reveals that the petitioner alongwith Sri Purkayastha though visited polyhouse construction site near the petrol pump down below and saw some structures but did not see any poly house and it is further revealed that he did not visit the site of CoE, Dirang, and returned to Naharlagun due to his wife's ill health though he had signed in the said report as prepared by Sri Purkayastha. It was further revealed that the charge against the petitioner has not been established but he was implicated in the case for sending a false report, aforesaid, showing the existence of CoE at Dirang. It was further revealed that the charge against the petitioner has not been established but he was implicated in the case for sending a false report, aforesaid, showing the existence of CoE at Dirang. It is noticed that the Superintendent of Police, SIC (Vig.), wrote a letter to the Special Secretary (Vig.), Government of Arunachal Pradesh, Itanagar, seeking issuance of prosecution sanction against the then incumbents including the present petitioner under Section 19 of the Act of 1988 and under Section 197 of the Code of Criminal Procedure, 1973. The aforesaid letter contains the names of 14 officers who were suspected in the alleged misappropriation of government fund including the petitioner and Sri Purkayastha whose names appear at 7 and 8 respectively. The allegations contained against their names are extracted herein below: "7. Sri J. Ratan, the then Joint Director, Horticulture, now Director, Horticulture, Government of Arunachal Pradesh, in connection with SIC(VIG) P.S. Case No. 03/2013 u/s. 120(B), 420, 47, 471, 409 IPC r/w Sec. 13(1)(c) (d) & 13(2) PC Act, 1988, for submission of false report to the government matter relating to COE, Dirang. 8. Sri A.K. Purkayastha, the then Joint Director (Agriculture), now retired as Director (Agriculture), in connection with SIC (VIG) P.S. Case No. 03/2013 u/ss. 120(B), 420, 47, 471, 409 IPC r/w Sec. 13(1)(c)(d) & 13(2) PC Act, 1988, for submission of false report to the government matter relating to COE, Dirang." 4. The Guideline No. (1) as postulated in the Office memorandum dated 14.12.2007, inter alia, states that these orders regarding accordance of vigilance clearance shall be applicable to 3 categories, namely, (a) empanelment (b) any deputation for which clearance is necessary and (c) appointments to sensitive posts and assignments to training programmes (except mandatory training). 5. The Guideline No. 2 states that vigilance clearance certificate shall not be withheld due to the filing of a complaint unless it is established on the basis of at least a preliminary inquiry or on the basis of any information that the concerned Department may have already in its possession that there is prima facie substance to verifiable allegations regarding (i) corruption (ii) possession of assets disproportionate to known sources of income (iii) moral turpitude (iv) violation of the Central Civil Services (Control) Rules, 1964. 6. 6. The Guidelines further states that sanction for investigation or prosecution has been granted by the competent authority in a case under the PC Act or any other criminal matter. The aforesaid Guidelines show that in the instant case, no sanction for investigation or prosecution has so far been granted by the competent authority against the petitioner. 7. Rule 8(b) of the CCS (Pension) Rules, reads, as under:- "8(b) The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the prisoner is convicted of a serious crime or is found guilty of grave misconduct." 8. At this stage, Mr. Hussain, learned counsel for the petitioner, submits that till date, there is no case where either the petitioner is convicted or even found guilty of grave misconduct. According to the petitioner, the right to receive the pension is a settled legal right recognized under the Articles 300A and 265 of the Constitution of India and therefore, in no case, the petitioner's pension can be legally withheld by the State. In support of his contention, learned counsel has relied on the ratio of the judgment rendered in the case of State of Jharkhand v. Jitendra Kumar Srivastava reported in (2013) 12 SCC 210 . 9. Mr. Hussain further submits that though there is neither any case against the petitioner nor prosecution sanction has been granted to prosecute him till date and on the other hand, the allegations which has been raised in the aforesaid letter for prosecution sanction against Sri Purkasyastha the then Joint Director (Agriculture) and now, retired as Director (Agriculture) are akin to the allegations raised against the present petitioner but Sri Purkasyastha has been allowed to draw pension. 10. Learned counsel for the petitioner also submits that the other incumbents namely Sri Alok Tagi, the then Director (Horticulture) since retired and Sri Lomdak Tago, the then Director (Horticulture) since retired, they have been provided with due pension. 11. Mr. Tapin, learned Senior Government Advocate, fairly submits that it is true that no vigilance clearance certificate has been granted on the ground that prosecution sanction has been pending against the petitioner. He has also submitted that the petitioner has committed an offence by submitting a false report to the authority without visiting the work site along with Sri Purkasyastha, on his personal knowledge. He has also submitted that the petitioner has committed an offence by submitting a false report to the authority without visiting the work site along with Sri Purkasyastha, on his personal knowledge. He further submits that the Vigilance Department could not produce any relevant document in justification of withholding pension to the petitioner. 12. In the case of Jatinder Kumar Srivastava (supra), the Apex Court held that there is an imprimatur to the legal principle that the right to receive pension as a right in property. Article 300A 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 13. Summarising the legal position, the Apex Court held in the said case, as extracted hereinbelow: "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 petitioner 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 proceeding 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." 14. The Apex Court further 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. This right to property cannot be taken away without due process of law as per the provisions of Article 300-A of the Constitution of India. A person cannot be deprived of his pension without the authority of law which is a constitutional mandate enshrined in Article 300-A of the Constitution. For ready reference, Paragraph No. 17 is quoted hereunder: "17. This right to property cannot be taken away without due process of law as per the provisions of Article 300-A of the Constitution of India. A person cannot be deprived of his pension without the authority of law which is a constitutional mandate enshrined in Article 300-A of the Constitution. For ready reference, Paragraph No. 17 is quoted hereunder: "17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different." 15. Having regard to the above mandate of the Apex Court and the facts averred in the writ petition vis-à-vis the averments made in the affidavits-in-opposition filed by the respondents, this Court is of the opinion that without having any ground of aspersion cast on the petitioner as prescribed in Section 8 of the CCS Rules, the pension of the petitioner cannot be withheld on the strength of an executive order of the State vide Office memorandum dated 14.12.2007 which has no statutory force. 16. In the premises, stated above, this writ petition is hereby disposed of by directing the State Respondents to make payment of the pensionary benefits and other entitlements, to the petitioner within a period of 45 (forty five) days from the date of receipt of a certified copy of this order. There shall be no order as to costs.