The Port Blair Municipal Council And ANR v. Umananda Roy

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR] *** MAT/4/2024 IA No.CAN/1/2024 The Port Blair Municipal Council and another Vs.

Umananda Roy Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the appellants Ms. Anjili Nag ... for the respondent January 15, 2024 [SR] Item Nos.14 We do not find any reason to interfere with the order dated September 26, 2023 passed by Her Lordship in WPA/913 of 2023.

The writ petitioner/respondent was working as an Assistant Engineer (Store) under the Port Blair Municipal Council. He retired from service on superannuation on July 31, 2023. Only provisional pension was released, as a clearance from the Vigilance Department was allegedly awaited. Being aggrieved, the respondent moved this Court by filing WPA/913 of 2023. The prayer of the respondent for payment of all retiral benefits and full pension had been allowed.

It appears from the records that a show cause notice dated September 14, 2021, was issued alleging misconduct, against the respondent. The respondent replied.

The reply was received by the employer on September 20, 2021. Thereafter, the employer did not take any further steps and allowed the respondent to retire. Thus, upon retirement, the employer/employee relationship severed. It further appears from the show cause notice dated September 14, 2021, that with regard to some anomalies in respect of purchase of dustbins in 2007-2008 and 20102011, the show cause notice had been issued. According to the show cause notice, the purchase process of such dustbins by tender notice, was contrary to the CPWD Manual. The time period to be maintained between the Notice Inviting Tender and the last date for the participants to respond to such tender, was short and not as per the CPWD Manual. The respondent explained in his reply that the dates were decided in the committee meeting.

The meeting was convened by the Secretary, Municipal Council. The respondent informed the authority that he was also not a part of the store division at the relevant time. In any event, the records do not show that the Municipal Authorities had proceeded on the basis of the said show cause for the next two years from the issuance thereof and the respondent was allowed to retire without any indication that a disciplinary proceeding was even contemplated in case of the respondent. Mr. Shatadru Chakraborty, learned advocate for the appellants, points out to a letter written by the Deputy Superintendent of Police, Anti Corruption Unit to the Administrative Officer, Municipal Council dated June 01, 2023. The letter indicates that some allegations against the respondents were received from one D.

V.Ajai Kumar.

Even after receiving such letter, the Administrative Officer of the Municipal Council, did not take any steps. The respondent retired without initiation of any proceeding, although there was communication with the vigilance Branch.

Mr. Shatadru Chakraborty, learned advocate submits that although the respondent was allowed to retire. According to the CCS (Pension) Rules 1969, only the provisional pension was payable. The learned Single Judge erred in directing payment of all retirement benefits. The vigilance clearance was awaited.

Mr. Shatadru Chakraborty, also refers to a letter dated July 14, 2023 issued by the Secretary, Municipal Council, which indicates that the authority had sanctioned provisional pension as the vigilance case/departmental case was pending against the respondent. Reference was made to Rule 69 of the Central Civil Service (Pension) Rules, 1996 which contemplates payment of provisional pension, in case of pendency of either a departmental or a judicial proceeding. In this case, there was neither any departmental proceeding nor any judicial proceeding pending, when the respondent retired. Awaiting vigilance clearance, cannot be the sole ground for denial of pensionary and other retiral benefits to an employee, when the employee rendered service for the entire period and was allowed to superannuate. A letter of the authority cannot substitute the Rules. Pension and gratuity cannot be withheld, except in accordance with the Rules applicable.

The learned Single has taken care of such provision of law. The Rule 69, relied upon by the appellants, further contemplates that gratuity shall not be paid to the government servant, until conclusion of a departmental or judicial proceedings and issuance of a final order. In this case, the gratuity also cannot be withheld as there is nothing on record to show that either a departmental proceeding or any other judicial proceeding is pending against the respondent.

On certain incidents which occurred in 2007-2008 and 2010-2011 with regard to purchase of dustbins, a show cause was issued. The respondent answered to the show cause. The employer did not proceed further, but allowed the respondent to retire without initiation of any departmental proceeding.

The letter referred to by Mr. Shatadru Chakraborty with regard to the communication of the Deputy Superintendent of Police, Anti Corruption Unit to the Administrative Officer of the Municipal Council, was also not responded to in any manner by the authority, by initiating any departmental proceeding or by directing that steps be taken on recommendations of the vigilance department. The employer did not show any inclination to proceed departmentally against the employee.

It is not a case that the disciplinary proceeding had been instituted prior to retirement, but was continuing even after the retirement. Stoppage of the retiral benefits of the respondent is not permissible in this case.

In the case of Dr. Hira Lal vs. State of Bihar and others. Civil Appeal No. 1677-1678 of 2020 (arising out of SLP (C) Nos. 4722-4723/2020, the Hon'ble Apex Court held that:- "13.4 It is well settled that the right to pension cannot be taken away by a mere executive fiat or administrative instruction. Pension and gratuity are not mere bounties, or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful and un-blemished service. The right to receive pension of a public servant has been held to be covered under the "right to property" under Article 31(1) of the Constitution by a Constitution bench of this Court in Deokinandan Prasad v. State of Bihar, which ruled that: "30. 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 [AIR 1962 Punj 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. Letters Patent Bench in its decision in Union of India v. Bhagwant Singh [ILR 1965 Punj 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.

31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab [ILR 1967 Punj & Har 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 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.

33. 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..."

[emphasis supplied] 13.5 The aforesaid judgment was followed in D.S. Nakara and Ors. v. Union of India by another Constitution bench of this Court, which held that:

"20. 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 Ors7 .: 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 maters 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.

29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the

compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.

31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch."

[emphasis supplied] 13.6 The right to receive pension has been held to be a right to property protected under Article 300A of the Constitution even after the repeal of Article 31(1) by the Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20.06.1979, as held in State of West Bengal v. Haresh C. Banerjee and Ors.

13.7 The Division Bench of the Patna High Court in the impugned judgment has relied solely on the earlier decision of a co-ordinate bench of the Patna High Court in Vijay Kumar Mishra v. State of Bihar10 to deny the 9 (2006) 7 SCC 651 10 2017 (1) PLJR 575 19 reliefs sought by the Appellant. Pertinently, the judgment in Vijay Kumar Mishra was overruled by a Full Bench of the Patna High Court in Arvind Kumar Singh v. State of Bihar & Ors. etc.

14. In view of the above, we hold that the RespondentState was unjustified in withholding 10% pension of the Appellant under administrative Circulars dated 22.08.1974 and 31.10.1974, and Government Resolution No. 3104 dated 31.07.1980 after the Appellant had superannuated on 31.03.2008.

We direct that 10% of the pension amount which had been withheld after superannuation on 31.03.2008 till

19.07.2012 is liable to be paid to the Appellant within a period of 12 weeks from the date of this Judgment." In June 2021, the Assistant Secretary (Vigilance) had recommended that discipline proceeding be initiated against some officials with regard to irregular purchase of dustbins. A show cause notice was issued to the respondent on such issue. The petitioner replied. Thereafter, no further steps were taken either by the authority or by the Deputy Superintendent of Police, Anti Corruption Unit at Port Blair. Rather, the Administrative Officer (Municipal Council) intimated the Deputy Superintendent of Police, Anti Corruption Unit that the petitioner would be retiring on July 31, 2023 and the authority was requested to inform whether any vigilance case was pending against him or not.

The Superintendent of Police, Anti Corruption Unit, intimated the Municipal Council that with regard to the complain of D. Ranganathan a request was sent to initiate departmental inquiry against the petitioner. With regard to the complaint of V. Ajai Kumar of the alleged illegal construction of 'Shine View' upon encroaching government land, an enquiry was under process.

First and foremost, no departmental enquiry had been initiated. There is no judicial proceeding pending. Secondly, the issue of encroachment on government land can be dealt with under the appropriate law. The submission of Mr. Chakraborty that the authority may be allowed to withhold or recover the amount in future, is a prayer in anticipation. We do not express any opinion in this regard. The authorities can always take resort to the applicable pension rules, if permissible in law, in future, but the respondent cannot be

left suspended in a vaccum, when the employer did not take steps at the appropriate stage. Only a letter that the vigilance clearance was awaited, cannot be a ground for withholding pension.

Under such circumstances, this Court does not find any reason to interfere with the order impugned. The order impugned is corrected. The full pension and other retirement benefits be released with a month, upon passing necessary orders. The arrear pension be paid within the next six months.

The appeal and the connected application are accordingly disposed of.

( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )