The Division Bench of the Jammu & Kashmir High Court comprised of Hon’ble Mr. Justice Sanjeev Kumar, Judge, and Hon’ble Mr. Justice Rajnesh Oswal, Judge on 11th Dec 2020 passed a judgment in which the Court observed that hard-earned benefit in the shape of pension and gratuity that accrues to an employee is in the nature of property. The right to property may not be a fundamental right anymore but it continues to be a Constitutional right and cannot be taken away without due process of law, as is provided under Article 300A of the Constitution of India.
The Court further observed that “that to deprive a person of his right to property, the State has to come up with a law within the meaning of Article 300A of the Constitution of India. It cannot be taken away by way of executive instructions that do not have any statutory character.”
The Division Bench was hearing the appeal against the impugned judgment passed in the writ petition as well as the judgment passed in a review petition (Impugned = Challenged) wherein the question of entitlement of post retiral benefits to an employee against whom judicial proceedings have been initiated.
In the instant case, the pensionary benefits to the appellant were denied on the ground that he was facing a criminal charge of misappropriation in an FIR which, at the time of his retirement, was pending investigation with Vigilance Organization, Kashmir thus pending investigation of FIR against the appellant and in the absence of No Objection Certificate from Vigilance Organization, the appellant was not entitled to any post retiral benefits Viz. pension, gratuity, leave salary, etc.
The pension and gratuity are not bounties to be given by the employer to the employees. It is earned by an employee by dint of his long, continuous, and unblemished service. The Court while giving reference hold that the nature of these post retiral benefits was elaborately explained in a Constitution Bench decision rendered in the case of Deokinandan Prasad Vs. State of Bihar & Ors, AIR 1971 SC 1409, wherein the Supreme Court authoritatively ruled that pension is a right and the payment of it does not depend on the discretion of the government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension as of right. It was further held that the grant of pension does not depend on anyone’s discretion. It is only for the purposes of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive the pension flows to the officer not because of any such order but by virtue of the rules. This view was reiterated by the Supreme Court in the case of D.S. Nakara & Others Vs. Union Of India (1983) 1 SCC.
The Court further observed that “The pension or gratuity can be denied to a retired employee like appellant only in accordance with the statutory provisions of Articles 168-A and 168-D of CSR and since neither judicial proceedings nor departmental proceedings against the appellant were instituted at the time of his retirement, as such, there is no statutory mandate to deny the pension, gratuity and other post retiral benefits to the appellant. The respondents have not brought to our notice any other statutory provision either in the CSR, Pay Rules of 1979, or J&K Civil Services (Classification, Control and Appeal) Rules, which entitle the employer, the respondents herein, to deny post-retirement benefits to an employee merely on the ground that at the time of his superannuation, an FIR into his misconduct was registered and pending investigation. “
The Court holds that “The mandate of Statutory Rules is that the government will sanction only provisional pension and withhold the gratuity in the cases where the employee at the time of superannuation was facing either a departmental enquiry or a judicial proceeding.”
The Court also observed that “the appellant was neither covered by Article 168-A and 168-D of CSR nor the appellant could have been denied the leave salary by applying Rule 37(2)(v) of the Jammu and Kashmir Civil Services (leave) Rules, 1979. The Writ Court was perhaps persuaded to believe that the Vigilance Organization, Kashmir, after completing the investigation in an FIR had presented the challan before the competent court of law and the same was pending trial whereas the fact remains that the challan in the instant case was filed only on 27th of October 2020 i.e. during the pendency of this appeal.”
The Court while allowing the appeal held that ” The appellant is held entitled to all admissible post-retiral benefits including pension, GPF, gratuity and leave salary etc. with effect from 31 st of August, 2016, along with interest @6% per annum. The respondents to process and release retiral benefits in favour of the appellant within a period of eight weeks from the date a copy of this judgment is served upon them. It is made clear that if the case of the appellant for release of post retiral benefits is not processed and finalized within the stipulated period, the amount shall be payable with interest @9% per annum.”