In the absence of any provision in the pension rules, a state government could not withhold a part of pension and/or gratuity during the pendency of departmental/criminal proceedings, held by the Division Bench of Justices K.S. Radhakrishnan and A.S. Sikri stating, “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. Right to receive pension was treated as right to property.”
“According to Article 300 A of the Constitution, no person shall be deprived of his property save by authority of law. A person cannot be deprived of his pension without the authority of law. It follows that the attempt of the appellant [in this case the Jharkhand government] to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”
“It hardly needs to be emphasised that the executive instructions do not have statutory character and, therefore, cannot be termed as ‘law’ within the meaning of Article 300A of the Constitution. 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. 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.” In the instant case, respondent Jitendra Kumar Srivastava was sanctioned 90 per cent provisional pension pending an enquiry. The remaining 10 per cent of his pension and salary was withheld. He was also not paid leave encashment and gratuity. The Jharkhand High Court directed the State government to release the withheld pension and salary and other benefits. The present appeals are directed against this judgment.
(From: the Hindu, 19 Aug, 2013/ Working Class)