Treating a citizen's right to receive pension and gratuity as right to property, the Supreme Court has ruled that no government employee can be deprived of this right even if departmental or criminal proceedings are pending against him.
A bench of Justice KS Radhakrishnan and Justice AK Sikri further held that gratuity and pension were an employee's hard earned benefits and not bounties. "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," the bench said, faulting the Jharkhand government's decision to withhold dues of its retired employee facing corruption case.
"An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of property," it held.
SC decried Jharkhand's act to deny pension and gratuity to its retired employee Jitendra Kumar Srivastava on the basis of an executive order. Noting that there were no provisions in the Pension Rules permitting the government to withhold retirement benefits, the bench was of the view that the 1968 executive order denying pension to Srivastava affected his fundamental rights.
"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," the top court held.
SC dismissed Jharkhand's appeal against state High Court order directing it to release the withheld dues to Srivastava. HC had on October 31, 2007 held that the Bihar Pension Rules didn't empower the government to withhold gratuity, pension and leave encashment at any stage either prior to or after conclusion of departmental proceedings.
HC gave its order on Srivastava's petition who had retired from the post of Artificial Insemination Officer, Ranchi in 2002, seeking release of part of his pension and other dues. Srivastava had joined the Animal Husbandry and Fisheries in Bihar government in 1966. In 1996 two cases were registered against him for alleged financial irregularities while he was posted as Artificial Insemination Officer, Ranchi.
After the formation of the state of Jharkhand, he became an employee of Jharkhand and two years later faced a departmental inquiry. Eight months later Srivastava retired from service.
However, the government withheld 10% of his pension and salary since the criminal case and the inquiry was pending against him. He wasn't even paid leave encashment and gratuity.