Rajesh Kumar Pal v. Mr. N.S. Pundir, Deputy Advocate General for the State/

Heard learned counsel for the parties and perused the record.

5. It is the case of the petitioner that he was appointed on

17.05.1989 as Mal Moharrir, Junior Clerk in District Haridwar. The 2 chronology of events that has been given by the petitioner are as follows:- i. On 11.07.2018, the petitioner was given a notice to explain the difference of recovery. ii. On 18.07.2018, the petitioner submitted its reply, but thereafter, no further action was taken by the respondent authorities. iii. On 23.01.2018, the preliminary inquiry was conducted by the Sub Divisional Magistrate, Bhagwanpur, District Haridwar, wherein it was clearly recorded that, “during this time period he was on accrued leave and medical leave in April- May due to a bike accident.” iv. On

24.08.2018, a charge-sheet communicated to the petitioner for difference in the demand in various heads. v. On 09.04.2021, at the time of promotion, the post of Administrative Officer, the petitioner once again explained the doubts raised by the respondent authorities in the show cause notice dated 11.07.2018. vi. On 27.12.2018, another show cause notice was issued to the petitioner regarding the increase recovery shown by the petitioner of the Collection Amins for their regularization. vii. On 27.01.2019, the petitioner gave a reply to the show cause notice dated 27.12.2018. viii. On 15.04.2019, another charge-sheet was served on the petitioner for presentation of recovery details of the Collection Amins as per cropped bar. ix. On 01.05.2019, the petitioner replied to the charge-sheet dated 15.04.2019. 3 x. On 31.01.2023, the petitioner retired from the post of Senior Clerk. xi. It is the case of the petitioner that he has not been paid pension and many other retiral dues.

6. The respondent nos.2 and 3 have filed the counter affidavits. According respondent no.3, disciplinary proceedings based on two charge-sheets i.e. dated 24.04.2018 and

15.04.2019 are pending against the petitioner.

7. In response to the allegations of the petitioner that departmental proceedings may not be kept pending for such a long, the respondent no.3 replies that it is natural that it will take some time due to detail investigation.

8. The respondent no.2 had, in fact, filed a brief counter affidavit giving detail, as to how the sealed cover procedure was adopted at the time of promotion.

9. The petitioner had further filed a rejoinder affidavit and claimed that Rekha Tripathi, another similarly placed person has been released pension on 21.08.2022, who was also undergoing departmental proceedings.

10. Learned counsel for the petitioner would submit that the petitioner has retired from service on 31.01.2023; it is more than two years now; he has not been given pension, gratuity and other benefits for no fault of the petitioner. He would submit that merely based on the charge-sheets, which were filed long back, one filed on 24.08.2018 and another on 15.04.2019, such action may not be justified. He would submit that the pension is, in fact, an earned asset of a person which cannot be withheld; a person may 4 not be deprived of his right to pension for delaying the departmental proceedings.

11. In support of his contention, learned counsel for the petitioner would submit that “Uttar Pradesh Pension Ke Mamlon Ka (Prastutikaran, Nistaran or Bilamb Ka Parivarjan) Niyamawali, 1995” (“the 1995 Rules”) gives six months time to complete departmental proceedings.

12. In the instant case, it is argued that one charge-sheet was served 07 years back and another six years back on the petitioner, but till date, no action has been concluded on those charge-sheets.

13. Learned counsel for the petitioner also refer to the principle of law as laid down by the Division Bench of this Court in WPSB No.5 of 2020, Lalit Mohan Arya Vs. State of Uttarakhand and others. In para nos.6 and 7, this Court has observed as follows:- “6. Hon’ble Apex Court has observed in a catena of cases that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that pension is a social welfare measure rendering socioeconomic justice to those who in the hay-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.

7. Even otherwise, an employee earns pension by the dint of long and continuous service and the same cannot be denied without the authority of law and without following the due process of law. Right to receive pension has been held to be the right to property protected under Article 300A of the Constitution even after the repeal of Article 31(1) by the 42nd constitutional amendment [State of West Bengal vs. Haresh C. Banarjee and others; (2006) 7 SCC 65].” 5

14. Learned State Counsel would submit departmental proceedings are pending against a person, he may be paid provisional pension and such order is passed on 13.05.2025.

15. Learned counsel for the petitioner has taken strong objection to it. He would submit that during pendency of this matter, yesterday the petitioner was given a telephonic call from the respondent authorities, asking him to withdraw the writ petition, so that the pension could be released. This Court leaves this chapter at it.

16. The Court posed a question to the learned State Counsel, as to how long the provisional pension shall be given? Can pension be denied to an employee for more than two years after his retirement on the ground that some charge-sheets were served on him six years back. Learned State counsel would submit that there is a provision for provisional pension.

17. Pension and gratuity are not something which given as an award. It is earned. In the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another, (2013)12 SCC, 210, the Hon’ble Supreme Court has discussed this concept and observed as follows:- “8. It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara v. Union of India [(1983) 1 SCC 305 : 1983 SCC (L&S) 145] by D.A. Desai, J. who spoke for the Bench, in his inimitable style, in the following words: (SCC pp. 319-20, paras 18-20) “18. 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 liberalised? Is the employer, which 6 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?

19. 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 post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

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 Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : 1971 Supp SCR 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 anyone'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 v. Iqbal Singh [(1976) 2 SCC 1 : 1976 SCC (L&S) 172 : (1976) 2 LLJ 377] .” It is thus a hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India.”

18. It is true that there is a provision of provisional pension in case, departmental proceedings are pending against some person. But, the question is, for how long provisional pension shall continue? Can it continue for 10 years, 15 years, 20 years or 05 years or more merely, on the ground that some charge-sheet was served on the retired employee during the period when he was in active service? Perhaps, it is not so. The 1995 Rules per se provides 7 that in case, departmental proceedings are pending against an employee at the time of retirement it should be completed within six months. Even within that six months the employee should be given provisional pension.

19. In the instant matter, the act of the respondent authorities cannot be appreciated at all. The petitioner was served one charge-sheet on 24.08.2018. It is more than 07 years now and another charge-sheet was served on him on 15.04.2019. It is more than 06 years now. The State is not in a position to tell, as to what happened in that enquiry? Has it ever progressed? The petitioner retired on 31.01.2023. He has not been paid any pension; provisional or final. During pendency of the petition, it was told by learned State Counsel that order of provisional pension has been passed yesterday. It is on record that one Rekha Tripathi, against whom also, departmental proceedings were pending for more than three years, she was released pension. This is clear by Annexure Nos.2 and 3 to the rejoinder affidavit filed by the petitioner. The petitioner cannot be denied the pension and retiral dues now based on the charge-sheet which was served long back. Therefore, the petition deserves to be allowed.

20. The petition is allowed.

21. The respondents are directed to release the pension, retiral dues and other consequential benefits to the petitioner forthwith. Sanjay (Ravindra Maithani, J.)

14.05.2025