STATE OF WEST BENGAL versus HARESH C. BANERJEE AND ORS.

Citation: [2006] SUPP. 5 S.C.R. 620 · Decided: 30-08-2006 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
c 
STA TE OF WEST BENGAL 
v. 
HARESH C. BANERJEE AND ORS. 
AUGUST 30, 2006 
[Y .K. SABHARW AL,CJ., C. K. THAKKER AND 
P.K. BALASUBRAMANY AN.JJ.] 
Service Law: 
West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971-
Rule 10(/)-Pension-Withholding of-By State-Constitutional validity a/-
Held: The Rule being the authority of law under which the pension could be 
withheld, the same cannot be held ultra vires even at the time when pension 
was a property to which Article 19(1)(/) was applicable-Constitution of 
D India, 1950-Articles 19(/)(f) (since repealed) and 309. proviso thereto. 
The question for consideration in the present appeal was whether Rule 
10(1) of West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 
framed under proviso to Article 309 of the Constitution of India, providing 
for withholding of the pension would ipso facto be ultra vires, being violative 
E of Article 19(1) (I) as it stood in 1971 when Rules were framed. 
Allowing the appeal, the Court 
HELD: l. Rule 10(1) of West Bengal Services (Death-cum-Retirement 
Benefit Rules, 1971 is the authority of law under which the pension could be 
F withheld on compliance of stipulations of the rule. Such a rule could not be 
held ultra vires even at a point of time when pension was a property to which 
Article 19(1)(f) of the Constitution of India was applicable.1624-E-FI 
G 
H 
Deokinandan Prasad v. The State of Bihar and Ors., 1197112 SCC 330, 
relied on. 
2. Various State Rules or Regulations vest power for withholding or 
reduction of pension on compliance of principles of natural justice. The 
question of an order withholding or reducing pension being invalid and bad 
in law on a legally permissible ground is one thing but to hold the rule ultra 
620 
ST ATE OF WEST BENGAL 1· HA RESH C. BANERJEE [YK SABHARWAL, CJ] 
621 
vires is another. If the Government incurs pecuniary loss on account of A 
misconduct or negligence of a Government servant and if he retires from 
service before any departmental proceedings are taken against him, it is open 
to the State Government to initiate departmental proceedings, and if in those 
proceedings, he is found guilty of misconduct, negligence or any other such 
act or omission as a result of which Government is put to pecuniary loss, the B 
State Government is entitled to withhold, reduce or recover the loss suffered 
by it by forfeiture or reduction of pension. State Government could not direct 
cut in pension of officers without giving a reasonable opportunity of hearing. 
State Government's power to reduce or withhold pension by taking proceedings 
against a Government servant, even after his retirement is expressly preserved 
by the rules. (624-A-EI 
C 
State of Uttar Prades'1 v. Brahm Datt Sharma and Anr., (19871 2 SCC 
179; State of Punjab v. K.R. Erry1, (197311SCC120 and State of Maharashtra 
v. MH. Mazumdar, 1198812 SCC 52, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2579 of 1998. 
D 
From Fin:1I ludgment and Order dated 6.5.1996 High Court of Calcutta 
in F.M.A.T. No. I ~02/1998. 
Tapas Ray, fara Chandra Sharma and Neelam Shanna for the Appellant. 
Amlan Kum~.r Ghosh (NIP) for the Respondent. 
The Judgment of the Court was delivered by 
E 
Y.K. SABHARWAL, CJ. The validity of Rule 10(1) of the West Bengal 
Services (Death-cum-Retirement Benefit) Rules, 1971 [for short 'the Rules'] is F 
in question in this appeal. The Rules have been framed in exercise of power 
under proviso to Article- 309 of the Constitution of India. Rule I 0( I) provides 
for withholding of pension and reads as under : 
· 
"10. Right of the Governor to withhold pension in certain cases. (I) 
The Governor reserves to himself the right of withholding of G 
withdrawing a pension or any part of it whether pennanently or for 
a specified period, and the right of ordering the recovery from a 
pension of the whole or part of any pecuniary lt-_, :aused to 
Government, if the pensioner is found in a departmental or judicial 
. proceeding to have been guilty of grave misconduct or neglif;ence, 
during the period of his service, including service rendered on re- H 
622 
SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R. 
A 
employment after retirement : 
Provided that 
(a) 
such departmental proceeding if instituted while the officer was 
in service, whether before his retirement or during his re-
B 
employment, shall after the final retirement of the officer, be 
deemed to be a proceeding under this article and
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