SHRI DIPAK DAS vs UNION OF INDIA AND ORS.

15. WP.CT 315of 2024Judgment.odt
Judgment Dated: 14-10-2026
WBCHCA0530782024
Ct. No. 1
SL. No. 15
PG
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WP.CT. 315 of 2024
DIPAK DAS,
SON OF LATE SUBAL CHANDRA DAS,
AGED ABOUT 60 YEARS, RESIDING AT
C-24, POST OFFICE-PANCHASAYAR,
KOLKATA-700094. …. Petitioner
Versus
1. UNION OF INDIA SERVICE
THROUGH THE SECRETARY,
GOVERNMENT OF INDIA,
MINISTRY OF FINANCE,
DEPARTMENT OF EXPENDITURE
NORTH BLOCK,
NEW DELHI-110001.
2. CHIEF CONTROLLER OF ACCOUNTS,
OFFICE OF PRINCIPAL CHIEF CONTROLLER
OF ACCOUNTS/ CBIC/CBEC, AGCR BUILDING
st
(1 FLOOR), NEW DELHI-110002.
3. DEPUTY CONTROLLER OF ACCOUNTS,
CBIC, EAST ZONE M.S. BUILDING
(6TH FLOOR), CUSTOM HOUSE,
15/1, STRAND ROAD,
KOLKATA- 700001.
4. ACCOUNTS OFFICER,
PAO, REVENUE CBIC, M.S. BUILDING
(1ST FLOOR),
15/1, STRAND ROAD,
KOLKATA- 700001.

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…. Respondents
----
Mr. Asit Kumar Manna,
Mr. Niladri Saha,
Ms. Madhurima Basu ... Advocates for the Petitioner
Mr. Aniruddha Bagchi
Ms. Suchorita Biswas,…………….. Advocates for the Respondents
----
CORAM: RAVINDRA V. GHUGE, CJ
&
OM NARAYAN RAI, J.
DATE: OCTOBER 14, 2026
ORAL JUDGEMENT (PER RAVINDRA V. GHUGE, CJ)

1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2. The Petitioner before us is an employee of the Central
Board of Indirect Taxes and Customs. He retired from the post of
Senior Accountant on 31.08.2023. At the time of his superannuation,
there was 3 criminal Cases that were pending against him and the
same are still being prosecuted. There is no dispute that in neither of
these 3 criminal cases, any Court has delivered any verdict.

3. The issue before us is that the Petitioner’s Gratuity,
Leave Encashment and retirement monetary benefits have been

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withheld by the Employer under Rule 8 (4) (c) of the Central Civil
Services (Pension) Rules, 2021. The provisional pension is being
paid to the Petitioner.
4. The stand taken by the employer is primarily grounded
on only one aspect. The Petitioner is facing some private cases,
unconnected with his service. Not a single pending criminal case is
related to his service conditions or affecting his Employer-Employee
relationship. The Employer has taken a stand that since Gratuity
cannot be paid to a Government servant until the conclusion of the
departmental or judicial proceedings, that the Petitioner’s Gratuity
and other retirement benefits, including part of the pension, has been
withheld.
5. The Petitioner approached the Central Administrative
Tribunal. The prayer put forth before the Tribunal was that all
retirement benefits of the Petitioner should be released. The Tribunal
observed in paragraph 8 of its impugned order dated 20.09.2024, as
under :-
“8. In the instant case, it is seen that neither the
applicant nor the respondents have provided any material
to show the nature of the criminal case pending against
the applicant, the specific sections of the Indian Penal
Code under which the applicant has been charged. It is

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therefore not possible to ascertain the nature of the
criminal cases pending against the applicant. Even
though the respondents have confirmed that the applicant
has not caused any financial loss to the department in
which he was serving, it is not possible to ascertain as to
whether the applicant has caused any loss to any
Government entity such as Public Sector Undertakings,
Public Sector Banks etc. directly or indirectly. It is not
possible to ascertain as to whether the cases in which the
applicant is involved are of a purely personal nature.
Further it is not possible to ascertain from the material on
record as to whether any loss has been caused upon any
Government entity by the applicant. Under the
circumstances, I do not think the applicant is covered by
the aforesaid judgment.
8. In view of the above discussion, I am of the opinion
that the instant Original Application lacks merit. O.A. is
accordingly dismissed. There will be no orders as to
costs.”
6. It is apparent that the Tribunal dismissed the O.A. by
drawing a conclusion that neither the Applicant (Employee) nor the
Respondents (Employer) have provided any material to demonstrate
the nature of the criminal case pending against the Employee or the
specific Sections of the Indian Penal Code under which he has been
charged. The Tribunal, therefore, concluded that it is not possible to
ascertain the nature of the criminal cases pending against the
Employee. Even though the Employer had confirmed that the
Employee had not caused any financial loss to the department, the
Tribunal held that it is not possible to ascertain as to whether the
Employee had caused any loss to any Government, or a Public Sector

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Undertaking/ Public Sector Bank etc., directly or indirectly.
7. The Tribunal also noted that it is not possible to
ascertain as to whether the case in which the Applicant is involved, is
purely personal in nature and whether loss had been caused to any
Government entity.
8. The learned Advocate representing the Employer
submits that all the 3 cases against the Petitioner are not connected
with his employment in any manner whatsoever. A departmental
enquiry was commenced against the Petitioner since he was arrested
in relation to a fraud connected with a bank. A personal hearing was
held on 29.03.2019. The departmental enquiry was subsequently,
closed and no conclusion was drawn against the Petitioner, since
there was no loss caused to the Employer, inasmuch as, the pending
criminal case was not connected with either the Employee or the
service of the Employee with the Employer. All the charges were
therefore, dropped against the Petitioner.
9. He further draws our attention to an order passed by the
th
9 Additional District Judge, Alipore in a pending Criminal Case No.
431/2013, which is in relation with a personal loan taken by the

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Petitioner from one private individual namely, Kalidas Karmakar.
th
This is an insolvency case. Therefore, the 9 Additional District
Judge directed the Employer to withhold an amount of Rs. 1,50,000/-
from the Gratuity amount of the Petitioner. We are informed that the
said amount is still retained by the Employer subject to further orders
being passed by the competent Court.
10. It is, thus, apparent that the Tribunal did not deal with the
grievance of the Petitioner and dismissed the O.A. only on the
ground that adequate details with regard to the case were not
presented, either by the Employee or by the Employer. We cannot
agree to such reason, to be a basis for the dismissal of the O.A. If the
Tribunal desired that further details should be forthcoming from the
parties, the Tribunal could have called upon either of the parties to
supply further details in order to enable it to write a proper order.
11. We find that the details with regard to the pending cases
of the Petitioner are before us, which could have been produced
before the Tribunal by either of the parties. It was the Employer, who
had taken the plea that the Gratuity amount and a part of the pension
could not being released because there were 3 private cases pending
against the Petitioner. It was, therefore, the duty of the Employer to

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furnish details about such cases to the Tribunal. Non-furnishing of
details by the Employer, who had withheld the retirement benefits,
could not stand to the disadvantage of the Employee.
12. Be that as it may, the Petitioner is supported by the
Judgment of the Hon’ble Supreme Court delivered in the State of
Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr., (2013) 12
SCC 210 . The issue before the Hon’ble Supreme Court was that the
State Government withheld a part of the pension and Gratuity during
the pendency of departmental/criminal proceedings. The High Court
had answered the issue and vide the impugned judgment, directed
that the retirement dues of the Employee should be released.
13. In Jitendra Kumar Srivastava & Anr. (supra) , the Hon’ble
Supreme Court noted that 2 cases were registered against the
Employee under the Prevention of Corruption Act, when he was
posted as an Artificial Dissemination Officer, Ranchi. Prosecution
was launched in the said 2 cases. The Employer directed initiation of
disciplinary proceedings. While these proceedings were pending, the
employee, Jitendra attained the age of superannuation and retired on
31.08.2002. The Employer sanctioned the release and payment of
GPF and also sanctioned 90% provisional pension. 10% pension and

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salary for the suspension period was withheld pending the outcome
of the criminal case, as well as, the departmental enquiry. He was not
paid leave encashment and Gratuity. Jitendra approached the Single
Judge Bench, which dismissed his Petition. He resorted to an intra-
Court Appeal, which was allowed by the Division Bench relying
upon Dr. Dudh Nath Pandy vs. State of Jharkhand and Ors. 2007
(4) JCR 1 (Full Bench of the Jharkhand High Court decided on
28.08.2007) .
14. It was then concluded by the Hon’ble Supreme Court in
Jitendra Kumar Srivastava & Anr. (supra) that Gratuity and pension
are not bounties and cannot be withheld unless there are grounds
supported by law. Considering the law laid down in D.S. Nakara &
Ors. vs. Union of India ; (1983) 1 SCC 305 , the Hon’ble Supreme
Court relied upon the following observations made therein:
“The approach of the respondents raises a vital and
none too easy of answer, question as to why pension is
paid. And why was it required to be libralised? Is the
employer, which expression will include even the State,
bound to pay pension? Is there any obligation on the
employer to provide for the erstwhile employee even
after the contract of employment has come to an end and
the employee has ceased to render service?
What is a pension? What are the goals of pension?
What public interest or purpose, if any, it seeks to serve?
If it does seek to serve some public purpose, is it
thwarted by such artificial division of retirement pre and

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post a certain date? We need seek answer to these and
incidental questions so as to render just justice between
parties to this petition.
The antiquated notion of pension being a bounty a
gratuitous payment depending upon the sweet will or
grace of the employer not claimable as a right and,
therefore, no right to pension can be enforced through
Court has been swept under the carpet by the decision of
the Constitution Bench in Deoki Nandan Prasad v. State
of Bihar and Ors. [1971] Su. S.C.R. 634 wherein this
Court authoritatively ruled that pension is a right and
the payment of it does not depend upon the discretion of
the Government but is governed by the rules and a
Government servant coming within those rules is
entitled to claim pension. It was further held that the
grant of pension does not depend upon any one’s
discretion. It is only for the purpose of quantifying the
amount having regard to service and other allied
matters that it may be necessary for the authority to pass
an order to that effect but the right to receive pension
flows to the officer not because of any such order but by
virtue of the rules. This view was reaffirmed in State of
Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377SC”.
15. The learned Advocate for the Employer has vehemently
canvassed that retirement benefits as well as Gratuity, cannot be paid
to a Government servant until the conclusion of the departmental or
judicial proceedings. In our view, this requires no debate. The
departmental proceedings are in connection with the misconduct
committed by an Employee in service and which also has a
manifestation in the service conditions.

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16. Rule 8(1) (c) indicates that the Employer can pass an
order in writing to withhold pension or Gratuity, or both, either in
full or in part or withdraw pension in full or in part, whether
permanently or for a specified period and order recovery from
pension or Gratuity of the whole or part of any pecuniary loss caused
to the Government, if, in any departmental proceeding or judicial
proceedings, the pensioner is found guilty of grave misconduct or
negligence during the period of service, including service rendered
upon re-employment after retirement. For brevity, we are
reproducing the entire Rule 8 of the Central Civil Services (Pension)
Rules, 2021 hereunder:
“ 8. Power to withhold or withdraw pension
[ (1) (a) The President, in the case of a pensioner who retired from a
post for which the President is the Appointing Authority;
(b) the Secretary of the Administrative Ministry or Department, in
the case of a pensioner who retired from a post for which an
authority subordinate to the President is the Appointing Authority;
and
(c) the Comptroller and Auditor-General of India, in the case of a
pensioner who retired from the Indian Audit and Accounts
Department, from a post for which an authority subordinate to the
President is the Appointing Authority
may, by order in writing, withhold a pension or gratuity, or both,
either in full or in part, or withdraw a pension in full or in part,
whether permanently or for a specified period, and order recovery
from a pension or gratuity of the whole or part of any pecuniary loss
caused to the Government, if, in any departmental proceedings or
judicial proceedings, the pensioner is found guilty of grave
misconduct or negligence during the period of service, including
service rendered upon re-employment after retirement:
Provided that the Union Public Service Commission shall be

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consulted before any final orders is passed by the President under
this sub-rule:
Provided further that where a part of pension is withheld or
withdrawn, the amount of such pension shall not be reduced below
the amount of minimum pension under Rule 44;]
(2) (a) The departmental proceedings referred to in sub-rule (1), if
instituted while the Government servant was in service whether
before his retirement or during his re-employment, shall, after the
final retirement of the Government servant, be deemed to be
proceedings under this Rule and shall be continued and concluded
by the authority by which they were commenced in the same manner
as if the Government servant had continued in service:
[Provided that where the departmental proceedings are instituted by
an authority subordinate to the authority competent to pass order
under sub-rule (1), that authority shall submit a report recording its
findings to the said Competent Authority.]
(b) Notwithstanding anything mentioned in sub-rule (1) and Clause
(a), departmental proceedings instituted under Rule 16 of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965, while the Government servant was in service and continued
after retirement, shall have no effect on the pension and gratuity of
the pensioner.
(c) The departmental proceedings, if not instituted while the
Government servant was in service, whether before his retirement, or
during his re-employment, -
(i) shall not be instituted save with the sanction of the '[authority
competent to pass order under sub-rule (1)] in Format 2;
(ii) shall not be in respect of any event which took place more than
four years before such institution; and
(iii) shall be conducted by such authority and in such place as the
[authority competent to pass order under sub-rule (1)] 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 Government servant during his service:
Provided that for the purpose of instituting departmental
proceedings under this sub-rule, a memorandum of charges shall be
communicated to the pensioner concerned in Format 3.
(d) Where a full-fledged enquiry is conducted giving an opportunity
to the pensioner to show-cause during the proceedings in
accordance with the Central Civil Services (Classification, Control
and Appeal) Rules, 1965, any further opportunity to show-cause
would not be necessary before taking action under sub-rule (1).
(3) In the case of Government servant who has retired on attaining
the age of superannuation or otherwise and against whom any
departmental or judicial proceedings are instituted or where
departmental proceedings instituted under Rule 14 of the Central
Civil Services (Classification Control and Appeal) Rules, 1965 are
continued under sub-rule (2), a provisional pension as provided in
sub-rule (4) shall be sanctioned.
(4) (a) In respect of a Government servant referred to in sub-rule (3),

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the Accounts Officer shall authorize the provisional pension equal to
the maximum pension which would have been admissible on the
basis of qualifying service up to the date of retirement of the
Government servant, or if he was under suspension on the date of
retirement, up to the date immediately preceding the date on which
he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts
Officer during the period commencing from the date following the
date of retirement up to and including the date on which, after the
conclusion of departmental or judicial proceedings, final orders are
passed by the competent authority.
(c) No gratuity shall be paid to the Government servant until the
conclusion of the departmental or judicial proceedings and issue of
final orders thereon.
(d) The provisions of this sub-rule shall not be applicable where
allegations of misconduct are under investigation against a
Government servant or where departmental or judicial proceedings
are contemplated against a Government servant but have not
actually been instituted or deemed to have been instituted in
accordance with ¹[Explanation to this rule) till the date of retirement
of the Government servant. The pension and gratuity in such cases
shall be authorized to be paid to the Government servant on his
retirement in accordance with Rule 63:
Provided that any departmental proceedings instituted after
retirement of the Government servant shall be subject to the
provisions of sub-rule (2).
(5) Payment of provisional pension made under sub-rule (4) shall be
adjusted against final retirement benefits sanctioned to such
Government servant upon conclusion of such proceedings but no
recovery shall be made where the pension finally sanctioned is less
than the provisional pension or the pension is reduced or withheld
either permanently or for a specified period.
(6) Where the ¹[authority competent to pass order under sub-rule
(1)] decides not to withhold or withdraw pension but orders recovery
of pecuniary loss from pension, the recovery shall not ordinarily be
made at a rate exceeding one-third of the pension admissible on the
date of retirement of a Government servant.
[ (6-A) (a) No appeal shall lie against any order made by the
President under this rule.
(b) An appeal against an order under sub-rule (1), passed by an
authority other than the President, shall lie to the President and the
President shall, in consultation with the Union Public Service
Commission, pass such orders on the appeal as he deems fit.]
(7) The President may at any time, either on his own motion or
otherwise call for the records of any inquiry and revise any order
made under these rules, after consultation with the Union Public
Service Commission, and may confirm, modify or set aside the order;
or remit the case to any authority directing such authority to make
such further enquiry as it may consider proper in the circumstances
of the case or pass such other order as he may deem fit:

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Provided that no order enhancing the amount of pension or gratuity
to be withheld or withdrawn, shall be made by the President unless
the Government servant concerned has been given a reasonable
opportunity of making a representation against the order proposed
and except after consultation with the Union Public Service
Commission.
(8) The President may at any time, either on his own motion or
otherwise review any order passed under these rules, where
extenuating or special circumstances exist to warrant such review or
when any new material or evidence which could not be produced or
was not available at the time of passing the order under review and
which has the effect of changing the nature of the case, has come, or
has been brought, to his notice:
Provided that no order enhancing the amount of the pension or
gratuity to be withheld or withdrawn, shall be made by the President
unless the Government servant concerned has been given a
reasonable opportunity of making a representation against the order
proposed and except after consultation with the Union Public
Service Commission.
E XPLANATION .- For the purpose of this rule,-
(1) (a) departmental proceedings shall be deemed to be instituted on
the date on which the statement of charges is issued to the
Government servant or pensioner, or if the Government servant has
been placed under suspension from an earlier date, on such date;
and
(b) judicial proceedings shall be deemed to be instituted
(i) in the case of criminal proceedings, on the date on which the
complaint or report of a police officer, of which the Magistrate
takes cognizance, is made; and
(ii) in the case of civil proceedings, on the date the suit is filed in
the Court.
(2) the expression "misconduct" means any act done or omitted to
be done by the pensioner, during the period of service, including
service rendered upon re-employment after retirement, and which
was in violation of any provisions of the Central Civil Services
(Conduct) Rules, 1964 for which action under Central Civil
Services (Classification Control and Appeal) Rules, 1965 could be
taken during the period of service.
(3) action under sub-rule (1) may be taken, if the pensioner is
found guilty of,-
(i) any corrupt practices during service;
(ii) any misconduct whether in relation to the performance of
official duty or otherwise; and
(iii) any misconduct whether resulting in pecuniary loss to the
Government or otherwise.
(4) the expression "civil proceedings" would mean such
proceedings in respect of a civil suit filed by the Government
only. ”

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17. In view of the above, in Jitendra Kumar Srivastava &
Anr. (supra) , the Hon’ble Supreme Court concluded that such
retirement benefits/pension/Gratuity can be withheld only if the
Service Rules so permitted and the judicial proceedings should be in
relation to a misconduct committed by an Employee in the discharge
of his duties as an Employee with an Employer while being in
service. Paragraphs 11 to 15 read as under:-
11. Reading of Rule 43(b) makes it abundantly clear that even after
the conclusion of the departmental inquiry, it is permissible for the
Government to withhold pension etc. only when a finding is recorded
either in departmental inquiry or judicial proceedings that the
employee had committed grave misconduct in the discharge of his
duty while in his office.
There is no provision in the rules for withholding of the pension/
gratuity when such departmental proceedings or judicial
proceedings are still pending.
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
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.

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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.
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 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 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

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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 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 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 Sub-article (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 32 is maintainable. It may be
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".

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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 (Forty-Fourth 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 treated as right to
property. Otherwise, challenge in that case was to the vires of Rule
10(1) of the West Bengal Services (Death-cum--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
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.
18. The case before us is so clear that our judicial
conscience is surprised by the fact that an Employer is declining to
release the part of the pension, the Gratuity (save and except

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Rs.1,50,000/-), the Leave Encashment, as well as the salary for the
period of suspension, notwithstanding that the Employer has dropped
the enquiry and all charges against the Petitioner.
19. Considering the crystalized position of law, we do not
find that the Employer was justified in withholding the above
retirement benefits/monetary components. The Petitioner is involved
in 3 private criminal cases. The purported act of creation of false
documents to obtain loan, is not connected with a bank.
Nevertheless, the concerned Court had directed the Employer to
retain Rs.1,50,000/- from the Gratuity amount of the Petitioner.
20. In view of the above, this Petition is partly allowed .
The impugned judgment of the Tribunal is quashed and set aside .
The Original Application No.240/2024 is partly allowed with the
following directions:
(a) The Employer shall initiate steps for facilitating the
conversion of the provisional pension into regular
pension payable to the Petitioner by submitting the
proposal to the competent authority, within a period of
30 days from today.
(b) In the event, any portion of the pension is not paid,
the concerned authority shall release the said pension

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amount within 30 days in compliance of the above
direction.
(c) Insofar as Gratuity amount, the employer shall retain
Rs.1,50,000/- in view of the directions of the concerned
Court and release the rest of the amount with 10%
statutory interest from the date the Gratuity amount
became payable (1 month after superannuation) within a
period of 45 days from today, keeping in view, the law
laid down by the Hon’ble Supreme Court in Gagan
Bihari Prusty Vs. Paradip Port Trust & Ors. SLP (C)
No.4468/2022, dated 03.03.2025 .
(d) Since the Employer has dropped all the charges
against the Petitioner and has closed the enquiry without
taking the same to a logical end, thereby exonerating the
Petitioner, the period of suspension has to be considered
as ‘on duty’ period and the remainder portion of the
salary, excluding the Suspension allowance already paid,
will have to be paid to the Petitioner within a period of
45 days from today.
21. Rule is made partly absolute in the above terms.

(OM NARAYAN RAI, J.) (RAVINDRA V. GHUGE)
CHIEF JUSTICE

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