High Court of Punjab and Haryana, Chandigarh
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Jagdish Rai v. State of Punjab & Ors - CWP-9809-2005  RD-P&H 2625 (26 April 2006)
In the High Court of Punjab and Haryana, Chandigarh.
CWP No. 9809 of 2005
Date of Decision: 4.5.2006
State of Punjab and others
Coram:- Hon'ble Mr.Justice J.S. Khehar.
Hon'ble Mr. Justice P.S. Patwalia
Present: Mr. Mukesh Kumar Bhatnagar, Advocate for the petitioner.
Mr. Ashok Aggarwal, Addl. A.G., Punjab
for the respondents.
J.S. Khehar, J. (Oral).
The petitioner's claim is for the release of 100% provisional pension, which has been denied to him on the ground that some criminal proceedings were pending against him.
The learned counsel for the petitioner has placed reliance on a Full Bench decision of this Court in Dr. Ishar Singh Vs. State of Punjab and another, 1994 (1) SCT 563 (F.B.). In paragraph 65 of the aforesaid judgement, it has been observed:-
"65. Since the statutory rules provide for sanction of 100% provisional pension, I fail to comprehend that the legislature would have intended to affect the pension in anticipation of finding the pensioner guilty of misconduct or his conviction in CWP No. 9809 of 2005 Page numbers
judicial proceedings or finding him having caused pecuniary loss to the State during the tenure of service. The State cannot escape its liability to pay pension solely in anticipation of the liability of the pensioner being fixed in disciplinary proceedings initiated. Allowing the State to pay reduced pension in anticipation of an adverse finding in a pending proceeding as suggested by the learned counsel for the respondents, in my considered view would be not only oppressive to the retiree but also amount to punishment before the trial. As regards protection of the State's interest, these have been sufficiently protected particularly when the State has been empowered to withhold all other retiral benefits like death-cum-retirement gratuity, salary etc. payment on account of leave encashment to which an employee is entitled on the eye of retirement. The pension is granted and protected with a view to provide subsistence to the elder members of the society. Another significant factor which can be taken note of is that no recovery can be made from the pension except with the consent of the pensioner for any amount due to the Government from the pensioner. It is thus a deliberate and conscious provision enacted by the legislature in the rules.
Petitioners cannot be deprived of their legitimate rights inferred by the statutory rules on excusals etc." The learned State counsel has, however, invited our attention to the observations made in paragraph 81 of the aforesaid judgement, which are as under:-
CWP No. 9809 of 2005 Page numbers
"81. As a result of the above discussion, I would conclude as under:-
(i) The Government has no right to withhold or postpone pension or the payment on account of commutation of pension. The State is bound to release 100 per cent pension at the time of superannuation, may be provisionally.
(ii) The Government can withhold the gratuity or other retiral benefits except pension or postpone payment of the same during pendency of an enquiry.
(iii) Pension cannot be adversely affected before a finding of guilt is returned.
(iv) The Government can initiate departmental enquiry after long lapse before retirement, rather there is no limitation for initiating the departmental enquiry from the date of incident before the same may reasonably be taken note of keeping in view its likelihood to cause prejudice to the delinquent if the enquiry is challenged in appropriate proceedings.
(v) The enquiry proceedings cannot be quashed solely on the ground of long pendency.
(vi) There is no effect of superannuation on the pendency of the enquiry proceedings.
(vii) The recovery of the Government dues can be made from gratuity or other retiral benefits only." Admittedly, in Dr. Ishar Singh's case (supra), the matter in issue CWP No. 9809 of 2005 Page numbers
was as to whether 100% provisional pension could be withheld when disciplinary proceedings were pending against an employee. We are, however, of the view, that the observations in paragraph 81 were made in the facts of that case but from a perusal of paragraph 65, we find, that the observations would apply equally in the case where a pensioner was facing criminal proceedings. We, accordingly, allow the writ petition and order, that petitioner be given 100% provisional pension, subject to the safeguards given in paragraph 81 ibid.
The writ petition is disposed of in the above terms.
( J.S. Khehar )
( P.S. Patwalia )
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