Gujarat High Court
Maganlal Haribhai Bavariya vs State Of Gujarat & 2 on 5 October, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/15423/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15423 of 2015
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MAGANLAL HARIBHAI BAVARIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ASIM PANDYA, ADOCATE WITH MR MANAN V BHATT, ADVOCATE for
the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAMHONOURABLE MS JUSTICE SONIA
: GOKANI
Date : 05/10/2015
ORAL ORDER
1. The petitioner after completing 35 years of Government service was superannuated on August 31, 2014 from his service as a Section Officer with the respondent No.1. It is his say that the respondent issued "No Event Certificate" as per the Rule 139(2) of the Gujarat Civil Services (Pension) Rules, 2001 (hereinafter referred to as 'the Pension Rules'). The petitioner had joined the Government service on January 03, 1979, after being regularly appointed after following Page 1 of 17 HC-NIC Page 1 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER necessary recruitment procedure. It is his say that all the necessary papers required by the respondent have already been furnished to the respondentauthority. However, after about 10 months of retirement, no amount of pension is yet being paid to him. It is also his say that all the queries raised by the respondent in a communication dated July 1420, 2015 have been answered. He has no money to survive as long time has passed since his retirement and, therefore, he has prayed for payment of pension with arrears and interest within a period of seven days.
2. An affidavitinreply has been filed by the respondentState urging inter alia that because of inaction on the part of the petitioner, the pension could not be paid to him in time. It is the say of the respondent that the petitioner had provided all necessary papers and particularly, the pension form on June 11, 2015, which has been received by the respondent on June 15, 2015. He had also addressed a communication dated July 06, 2015 to the Office of the Director of Pension and Provident Fund to the effect that the House Page 2 of 17 HC-NIC Page 2 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER Building Advance interest should be adjusted from the amount of gratuity. It is further his say that a notice came to be received on August 24, 2015 by the petitioner from the Irrigation Department and, therefore, a letter dated August 25, 2015 was addressed to the Director of Pension and Provident Fund, not to finalise the pension of the petitioner from the office of the respondentauthority. It is also the say of the respondent that while the petitioner was a Class II Officer, the incident of the year 2012 took place and the file was forwarded to the General Administration Department as to whether to issue the chargesheet to the petitioner or not and whether to sanction pension or provisional sanction in favour of the petitioner. It is further the say of the respondent that the pension papers were approved in the month of May, 2015. It is for the want of necessary details from the petitioner that nothing could be proceeded.
3. A rejoinder affidavit is also filed, wherein it is the say of the petitioner that according to Page 3 of 17 HC-NIC Page 3 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER Rules 128 and 137 of the Pension Rules, it is the duty of the respondentauthority to send the pension papers to the Director of Pension and Provident Fund 12 months before the date of retirement. All the instructions were followed scrupulously. It is further the say of the petitioner that he was working with the Urban Development Department from where he was transferred to the Narmada Water Resources and Kalpasar Department. The duty is cast upon the respondentauthority to ensure that all the papers are finalised before he retires. It is further the say of the petitioner that no notice so far has been served upon him in respect of the departmental proceedings. The respondents have no power or right to initiate departmental inquiry once "No Event Certificate" has been issued in September, 2014 by the respondent No.1 in consultation with the General Administration Department. It is further his say that only if the pecuniary loss is caused to the Government, there can be reason for withholding the pension of the pensioner. The action on the part of the Page 4 of 17 HC-NIC Page 4 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER respondent of withholding the pension and other retiral benefits of the petitioner is illegal.
4. Heard Shri Asim Pandya, learned counsel appearing with the learned counsel Shri Manan Bhatt for the petitioner, has urged mainly on the ground that the petitioner does not insist on stricter view of nongrant of pension for the entire year. It is urged that the respondentauthority has in affidavitinreply spoken of contemplation of inquiry qua the incident of the year 2012, where in fact, no such initiation could be done once the "No Event Certificate" is granted. It is further the say of the learned counsel appearing for the petitioner that no pecuniary loss has been caused to the Government at any point of time by the petitioner and, therefore also, the pension is required to be granted to the petitioner. It is further the say of the petitioner that in case of those employees in whose case the departmental inquiry is initiated, fixation and payment of provisional pension is provided under the Rules. It is urged by the learned counsel appearing for the petitioner that Page 5 of 17 HC-NIC Page 5 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER he has no means to sustain himself and his family.
5. Shri Swapneshwar Gautam, learned Assistant Government Pleader, has urged that it is only delay on the part of the petitioner which has resulted into nongrant of pension till date. The General Administration Department is consulted for initiating inquiry and, therefore also, at this stage, the Court may not interfere.
6. Having thus heard both the sides and having considered the material on record, as is apparent from the record, the petitioner has on his attaining the age of superannuation retired on August 31, 2014 and the period of 12 months from the date of superannuation has already passed, however, no amount of pension or pensionary benefits have been granted to the petitioner. As rightly pointed out by the learned counsel appearing for the petitioner and as is quite apparent from the Pension Rules, the entire process is to be undertaken before a year the employee retires. The respondent is not obliging Page 6 of 17 HC-NIC Page 6 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER the petitioner by paying him the pension. It is the right of an employee, which he earns after putting in qualifying years of service. The Apex Court has equated the same with property of an employee in the case of State of Jharkhand and others v. Jitendra Kumar Srivastava and another, (2013) 12 SCC 210. It would be profitable to regurgitate the relevant observations and findings of the said decision, which read as under :
"12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:
"29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already Page 7 of 17 HC-NIC Page 7 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER adverted to earlier and we now proceed to consider the same.
30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.Page 8 of 17
HC-NIC Page 8 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER
31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.
32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution.
It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant Page 9 of 17 HC-NIC Page 9 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property"
cannot possibly undergo such mutation at the whim of a particular person or authority.
33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to Page 10 of 17 HC-NIC Page 10 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration Page 11 of 17 HC-NIC Page 11 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
34. This Court in State of Madhya Pradesh v.
Ranojirao Shinde and Anr
.
MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question whether a "cash grant"
is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a Page 12 of 17 HC-NIC Page 12 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)
(f) and it is not saved by Subarticle (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article is maintainable. It may be 32 that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law".
13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (FortyFourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was Page 13 of 17 HC-NIC Page 13 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Deathcum Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".
14. Article 300 A of the Constitution of India reads as under:
"300A Persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without Page 14 of 17 HC-NIC Page 14 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
15. 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 aforesaid Article 300A. 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."
7. The respondent if had initiated the task of completing the required formality of granting of pension a year before the employee had retired, the delay would not have taken place. As is pointed out in the affidavitinreply, certain details were not furnished by the petitioner, then also it is apparent that in the month of June 2015, all the details have been gathered by the respondentauthority, necessary information, Page 15 of 17 HC-NIC Page 15 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER forms and all other adjustments which were to be made, were all available with the respondent, however, even till date no amount has been finalised.
8. As is apparent from the record, the "No Event Certificate" has been granted way back in the month of September, 2014 and now to come up with the possibility of the departmental inquiry on the ground that the matter is pending for consideration before the General Administration Department, could not be a ground for withholding the pension. It is also to be noted that even in the case of those employees in whose case the departmental inquiry is pending, the Rules provide for payment of provisional pension, whereas in the present case, not even a show cause notice has been issued so far to the petitioner qua initiation of departmental inquiry. The incident is of the year 2012 and, therefore, to deny the petitioner pension on the ground that there is possibility of initiating such proceedings, is nothing but an arbitrary exercise of powers by the respondent. At this Page 16 of 17 HC-NIC Page 16 of 17 Created On Sat Oct 10 00:30:01 IST 2015 C/SCA/15423/2015 ORDER stage, the learned counsel Shri Asim Pandya appearing for the petitioner does not insist on the interest upto the period June, 2015 from the respondentauthority.
9. For the foregoing reasons, the present petition is partly allowed. The respondentauthority is directed to finalise the pension of the petitioner and pay the amount of arrears to the petitioner within a period of one week from the date of receipt of a copy of this order. Such amount be paid with interest at the rate of 9% per annum from July 01, 2015.
Disposed of accordingly.
(MS SONIA GOKANI, J.) Aakar Page 17 of 17 HC-NIC Page 17 of 17 Created On Sat Oct 10 00:30:01 IST 2015