High Court of Punjab and HaryanaCWP/16723/1998dismissed

Sh. R.D.Kamboj v. State Of Haryana & ANR

2023-09-01Mr. Justice Harsimran Singh Sethi4 pages

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09. In view of thereof, we find that the ratio laid down in the said judgments cannot be extended in respect of the claim of leave encashment governed by the Punjab Civil Service Rules or the analogous Rules. In fact, in terms of the conclusion (i) in para No.81 of the judgment in Dr. Ishar Singh's case (supra), the State 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% pension at the time of superannuation. It is conclusion No. (ii) which permits the Government to withhold gratuity or other rerital benefits. The pension is to be paid, may be provisionally, during the pendency of the enquiry. Similarly, conclusion (vii) provides recovery of Government dues from

gratuity and other retiral dues. Therefore, the judgment in Dr. Ishar Singh's case (supra), is applicable only DALBIR SINGH 2014.08.12 12:57 I attest to the accuracy of this document High Court Chandigarh LPA No. 113 of 2012 (O&M) [6] in respect of payment of provisional pension pending disciplinary or criminal proceedings and has no applicability in respect of withholding of other retrial benefits. The payment or withholding of other retrial benefits is subject matter of applicable Rules, if any. Since in the present case, Rule 8.21(aa) provides for withholding of leave encashment, the same cannot be released to an employee, as the amount, if any, could be recovered from such benefits.

10. In fact the above view gets support from the recent Supreme Court Judgment reported as State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, wherein the court held as under:- "16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under:

"300-A. 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.

17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. 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.

11.

In view thereof, since the right to withhold leave encashment is part of the Statutory Rules, it satisfies the test laid down by the Supreme Court. Thus, we approve the judgment in Harbhajan Singh Riar's case while overruling the view taken in Gurdial Singh's case (supra). The judgments in two other cases i.e. B.S. Gupta's case (supra) and Dayal Singh's case (supra), pertain to Haryana. Since, the Rules applicable to Haryana, have not been brought to our notice, we leave the said matter open, to be adjudicated at an appropriate stage."

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