We have heard Sri A.B.Singh, learned counsel for the petitioner as well as learned Standing Counsel appearing on behalf of the respondents and have perused the record.
Although no order withholding the post retiral benefits of the petitioner has been passed but in the counter affidavit the reason given for withholding the same is that by a Government Order dated 28.3.2005 disciplinary proceedings were initiated against the petitioner for having committed certain financial irregularities while he was posted as Soil Conservation Officer, Mirzapur in the year 1998-99 and 1999-2000, in which, it is alleged that certain excess payments were paid to the labourers. Admittedly no charge sheet was ever issued to the petitioner during his service period. Specific averment to this effect has been made in paragraph 11 of the writ petition wherein it is stated that the charge sheet was served on the petitioner in June, 2007. The same has not been denied in the counter affidavit. It is contended by the learned counsel for the petitioner that the order dated 28.3.2005 was a sanction to initiate disciplinary proceeding against the petitioner. In the said letter itself, it was mentioned that the enquiry officer shall prepare the charge sheet and place the same before the Government for necessary sanction. It is the specific case of the petitioner, which has not been denied by the respondents, that the petitioner was neither given a charge sheet during his service period nor was ever placed under suspension. It is thus contended that disciplinary proceedings, in the form of issuance of charge sheet, after the retirement of the petitioner could not be initiated without the sanction of the Governor as provided under Regulation 351-A of the Civil Services Regulations.
A Division Bench of this Court in the case of Ram Rakhan Singh vs. State of U.P. (2008) 1 UPLBEC 840 has held that where the charge sheet is served subsequent to the retirement of the employee without there being any order of the Governor permitting the initiation of the departmental proceeding against the employee, the same would be barred under Regulation 351-A of the Civil Services Regulations. Another Division Bench in the case of Lal Sharan vs. State of U.P. 2012 (1) ESC 57 has held that mere intention to obtain sanction for initiating disciplinary enquiry could not be made basis for withholding post retiral benefits unless sanction is granted and the disciplinary proceeding starts. It has further been held that the authorities cannot withhold pension and other retiral dues of a retired employee merely on the ground that there was a possibility of an enquiry being initiated against a retired employee. The provision of seeking sanction from the Governor in the case of a retired employee has been made to safeguard the interest of the retired employees who could be harassed after retirement.
In the present case, what we find is that prior to the retirement of the petitioner mere permission to hold an enquiry was accorded but the charge sheet was served in June, 2007 which was much after the retirement of the petitioner.
In our considered opinion, the retiral dues of the petitioner ought to have been paid to him immediately after his retirement and the same has wrongly been withheld by the respondent-authorities under the garb of an enquiry being contemplated against the petitioner. As per Explanation to Regulation 351-A "Departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are served to him or, if the officer has been placed under suspension from an earlier date, on such date". Since neither charge-sheet was issued to the petitioner prior to his retirement nor was he ever placed under suspension during his service period, therefore it cannot be said that departmental proceedings had been initiated against the petitioner while he was in service. Further after retirement, departmental proceedings could be initiated only after sanction was accorded by the Governor in terms of Regulations 351-A of the Civil Services Regulations, which has not been done in the present case. As such withholding of the pension and other retiral dues of the petitioner in the facts of the present case are wholly unjustified in view of the law laid down by the Apex Court in the case of Deoki Nandan Shah vs. State of U.P. AIR 1971 SC 1409 whereby the Apex Court ruled that the pension is a right and payment of it does not depend upon the discretion of the Government but is governed by the Rules and the Government Servant coming within those rules is entitled to claim pension and 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 further affirmed by the Apex Court in the case of State of Punjab vs. Iqbal Singh AIR 1976 SC 667.
In the case of D.S.Nakara vs. Union of India (1983) 1 SCC 305 the Apex Court has observed as under:
"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......"
The ratio laid down in these cases had been subsequently followed by the Apex Court in series of its decisions including the case of Secretary, O.N.G.C. Limited vs. V.U.Warrier 2005 (5) SCC 245.
The State Government has also issued a Government Order No.3-1713/Dus/983/89 on 28th July, 1989 in which, with a view to avoid the delay in payment of pension, it is provided that the service book is to be completed two years prior to the date of retirement.
Regulation 912 (E) of the Civil Service Regulations also provide that the retirement of a Government employee shall be published in the Gazette within a week from the date of his retirement. There is a complete mechanism for grant of post retiral dues at the earliest and in case there is any technical problem in payment of final pension, then there is a provision for provisional pension till the payment of final pension.
Accordingly, this writ petition succeeds and is allowed. The respondent authorities are directed to pay the entire retiral dues of the petitioner including up-to-date pension within three months from the date a certified copy of this order is produced before the competent authority and also pay the future pension to the petitioner in accordance with law, month by month.
Dt: 10.2.2012 dps (Ran Vijai Singh, J.) (Vineet Saran, J.)