Full Judgment Text
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CASE NO.:
Appeal (civil) 2579 of 1998
PETITIONER:
State of West Bengal
RESPONDENT:
Haresh C. Banerjee & Ors.
DATE OF JUDGMENT: 30/08/2006
BENCH:
Y.K. Sabharwal, C.K. Thakker & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
Y.K. Sabharwal, CJI.
The validity of Rule 10(1) of the West Bengal Services
(Death-cum-Retirement Benefit) Rules, 1971 [for short ’the
Rules’] is 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 10(1) provides for
withholding of pension and reads as under :
"10. Right of the Governor to
withhold pension in certain cases.\027
(1) The Governor reserves to himself
the right of withholding of withdrawing
a pension or any part of it whether
permanently or for a specified period,
and the right of ordering the recovery
from a pension of the whole or part of
any pecuniary loss caused to
Government, if the pensioner is found
in a departmental or judicial
proceeding to have been guilty of grave
misconduct or negligence, during the
period of his service, including service
rendered on re-employment after
retirement :
Provided that \026
(a) such departmental proceeding if
instituted while the officer was in
service, whether before his
retirement or during his re-
employment, shall after the final
retirement of the officer, be
deemed to be a proceeding under
this article and shall be continued
and concluded by the authority
by which it was commenced in
the same manner as if the officer
had continued in service;
(b) such departmental proceedings, if
not instituted while the officer
was in service, whether before his
retirement or during his re-
employment\027
(i) shall not be instituted save
with the sanction of the
Governor;
(ii) shall not be in respect of any
event which took place more
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than four years before such
institution; and
(iii) shall be conducted by such
authority and in such place
as the Governor may direct
and in accordance with the
procedure applicable to
departmental proceedings in
which an order of dismissal
from service could be made
in relation to the officer
during his service;
(c) no such judicial proceeding, if not
instituted while the officer was in
service, whether before his
retirement or during his re-
employment shall be instituted in
respect of a cause of action which
arose on an event which took
place more than four years before
such institution; and
(d) the Public Service Commission,
West Bengal, shall be consulted
before final orders are passed.
Explanation.\027For the purpose of this
article\027
(a) a departmental proceeding shall
be deemed to have been instituted
on the date on which the
statement of charges is issued to
the officer or pensioner, or if the
officer has been placed under
suspension from an earlier date,
on such date; and
(b) a judicial proceeding shall be
deemed to have been instituted\027
(i) in the case of criminal
proceeding, on the date on
which the complaint or
report of police officer, on
which the Magistrate takes
cognizance, is made, and
(ii) in the case of a civil
proceeding, on the date on
which the plaint is presented
or, as the case may be, an
application is made to a Civil
Court."
While granting leave to examine the vires of Rule 10(1),
it was directed that even if the appeal succeeds, the benefit
available to respondent No. 1 as per the judgment of the
High Court will not be recalled.
The High Court by the impugned judgment has held
Rule 10(1) to be ultra vires the provisions of Articles 19(1)(f)
and 31(1) of the Constitution. It was held that the pension
was a property and its payment does not depend upon the
discretion of the Government.
Pension is not a bounty payable on the sweet-will and
the pleasure of the Government and to receive pension is a
valuable right of a Government servant is a well-settled legal
proposition. The question in the present case, however, is
not about the deprivation of the said right by the
Government by an executive order but is about the
constitutional validity of Rule 10(1) providing for
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withholding of pension or part thereof in certain cases.
Articles 19(1)(f) and 31(1) have been repealed by the
Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f.
20th June, 1979. The right to property is no longer a
fundamental right. It is now a constitutional right, as
provided in Article 300A of the Constitution. Right to
receive pension was a fundamental right at the time of
framing of Rules in 1971. The question is whether a Rule
framed under proviso to Article 309 of the Constitution
providing for withholding of the pension would ipso facto be
ultra vires, being violative of Article 19(1)(f) as it stood in
1971 when Rules were framed.
The High Court has, in the impugned judgment, made
reference to a decision of this Court in Deokinandan
Prasad v. The State of Bihar and Ors. [(1971) 2 SCC
330] for coming to the conclusion that the rule in question
is ultra vires. In the said case, this Court held that the right
to receive pension was wrongly withheld by an executive
order. The Judgment in Deokinandan Prasad’s case in
fact lends support to the vires of the rule since it was held
in that case that an employee can be deprived of the
pension by an authority of law. That authority, in the
present case, is contained in the rules [Rule 10(1)], that
were framed providing for withholding of the pension.
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 vires is another. In State of Uttar Pradesh
v. Brahm Datt Sharma and Anr. [(1987) 2 SCC 179], this
Court observed that if the Government incurs pecuniary
loss on account of 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 State Government is entitled to withhold, reduce or
recover the loss suffered by it by forfeiture or reduction of
pension. In State of Punjab v. K.R. Erry [(1973) 1 SCC
120], it was held that the State Government could not direct
cut in pension of officers without giving a reasonable
opportunity of hearing. In State of Maharashtra v. M.H.
Mazumdar [(1988) 2 SCC 52], it was observed that the
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.
Rule 10(1) is the authority of law under which the
pension could be withheld on compliance of stipulations of
the rule. We are unable to appreciate how such a rule could
be held ultra vires even at a point of time when pension was
a property to which Article 19(1)(f) was applicable.
In view of the above, we set aside the impugned
judgment to the extent it declares Rule 10(1) ultra vires.
The appeal is allowed accordingly.