I was a public servant and retired from the post of superintendent engineer. No departmental inquiry was set up against me for the alleged misappropriation of government fund from the state treasury. My pension and gratuity are stopped without any reasonable cause. It is a clear violation of the right to a pension of the employee. Please advice.
The pension is not a bounty payable on the sweet will and the pleasure of the Government. The right to a pension is a valuable right of the employee because he earns these benefits by dint of his long, continuous, faithful and unblemished service.
The employer must initiate a departmental inquiry against the delinquent employee and conclude it within the shortest period.
The state and central governments have made various rules and regulations for withholding or reduction of pension. Article 309 of the constitution empowers the Parliament or the State Legislature to make such rules. Such laws are made with a view to recovering the loss of government exchequer from a public servant.
Article 309 does not confer arbitrary and unfettered right to withhold pension and retiral benefits of a government servant.
In State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179], the Supreme Court has held that the Government is entitled to recover the pecuniary loss from the government servant. The government can initiate a departmental proceeding against the public servant even after his retirement. Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension if he is found guilty.
Pension and gratuity is a statutory right
The employee’s right to pension and gratuity is a statutory right. In your case, the order to withhold the pension and gratuity as a measure of penalty is illegal. Because such order or measure of punishment cannot be passed without complying due process of law.
The government while passing such order must follow the rule of natural justice.
Right to property is still a constitutional right, and each administrative order must follow the rule of natural justice. If pensioner found guilty in a departmental or judicial proceeding, then the Governor can withhold pension and order for recovery from his pension. The findings of grave misconduct or negligence during the period of his service is essential for stopping retiral dues.
In State Of Jharkhand & Ors vs. Jitendra Kumar Srivastava [(2013) 12 SCC 210];the Supreme court of India observing that
Gratuity and pension are employee’s hard earned benefits. His right to receive pension is in the nature of “property” hence protected under article 300 A
The Court further held that the government could not take away this right because of pending departmental or criminal proceedings. Performance of due process of law as per the provisions of Article 300 A of the Constitution of India is mandatory for such order.
In this scenario, you should file a writ petition before the High Court under article 226 of the constitution of India and challenge this order of withholding your pension and retiral benefits without finding you guilty of grave misconduct.
