LexSTATE OF JHARKHAND & ORS. versus JITENDRA KUMAR SRIVASTAVA & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2013] 8 S.C.R. 177
STATE OF JHARKHAND & ORS.
v.
JITENDRA KUMAR SRIVASTAVA & ANR.
(Civil Appeal No. 6770 of 2013)
AUGUST 14, 2013
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Service Law - Pension - State Government withholding
A
B
a part of pension and/or gratuity during pendency of
departmental/ criminal proceedings, in apsence of any such
C
provision in the Pension Rules - Propriety - Held: Gratuity and
pension are not bounties - It is 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 Article 300 A of the Constitution -
D
Present case governed by Bihar Pension Rules, as
applicable to the State of Jharkhand - Rule 43(b) of the
Pension Rules made it clear that even after conclusion of
departmental inquiry, it was permissible for the Government
to withhold pension etc. only when a finding was recorded
E
either in departmental inquiry or judicial proceedings that the
employee had committed grave misconduct in discharge of
his duty while in his office - No provision in the rules for
withholding of the pension/ gratuity when such departmental
proceedings or judicial proceedings was still pending - Attempt
F
of the appellant 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 - Executive instructions are not having
statutory character and, therefore, cannot be termed as "Jaw"
G
within the meaning of Article 300A - On basis of such a
circular, which is not having force of Jaw, the appellant cannot
withhold even a part of pension or gratuity - Bihar Pension
Rules, as applicable to the State of Jharkhand - r.43(b) -
Constitution of India, 1950 - Article 300A.
H
177
178
SUPREME COURT REPORTS
[2013] 8 S.C.R.
A
Service Law - Pension - Held: Right to receive pension
is recognized as a right in ''property".
The question which arose for consideration in the
instant appeal was: whether, in the absence of any
8 provision in the Pension Rules, the State Government
can withhold a part of pension and/or gratuity during the
pendency of departmental/ criminal proceedings. The
High Court had answered this question, vide the
impugned judgment, in the negative and hence directed
the appellant to release the withheld dues to the
C respondent. Hence the present appeal by the State of
Jharkhand.
Dismissing the appeals, the Court
D
HELD: 1.1. Gratuity and pension are not bounties. An
employee earns these benefits by dint of his long,
continuous, faithful ant:f un-blemished service. It is thus
hard earned benefit which accrues to an employee and
is in the nature of "property". This right to property
E cannot be taken away without the due process of law as
per the provisions of Article 300 A of the Constitution.
[Paras 7, 8] [184-A; 185-8-C]
1.2. The present case is admittedly governed by
Bihar Pension Rules, as applicable to the State of
F Jharkhand. Rule 43(b) of the said Pension Rules confers
power on the State Government to withhold or withdraw
a pension or part thereof under certain circumstances.
Reading of Rule 43{b) makes it abundantly clear that
even after the conclu'sion of the departmental inquiry, it
G is permissible for the Government to withhold pension
etc. ONLY when a finding is recorded either in
departmental inquH-y or judicial proceedings that the
employee had committed grave misconduct in the
cfischarge of his duty while in his office. There is no
H provision in the rules for withholding of the pension/
STATE OF JHARKHAND & ORS. v. JITENDRA
179
KUMAR SRIVASTAVA
gratuity when such departmental proceedings or judicial
A
proceedings are still pending. [Paras 9, 11] [185-0; 187-
F-G]
1.3. Fact remains that there is an imprimatur to the
legal principle that the right to receive pension is
8
recognized as a right in "property". 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 any statutory provision
C
and under the umbrage of administrative instruction
cannot be countenanced. The executive instructions are
not having statutory character and, therefore, cannot be
termed as "law" withinExcerpt shown. Read the full judgment & AI analysis in Lexace.