Of West Bengal Vs. Haresh C. Banerjee & Ors
 Insc 550 (30
Sabharwal, C.K. Thakker & P.K. Balasubramanyan Y.K. Sabharwal, Cji.
validity of Rule 10(1) of the West Bengal Services (Death-cum-Retirement
Benefit) Rules, 1971 [for short 'the Rules'] is in question in this appeal. The
Rules have been framed in exercise of power under proviso to Article 309 of the
Constitution of India. Rule 10(1) provides for withholding of pension and reads
"Right of the Governor to withhold
pension in certain cases.
reserves to himself the right of withholding of withdrawing a pension or any
part of it whether permanently or for a specified period, and the right of
ordering the recovery from a pension of the whole or part of any pecuniary loss
caused to Government, if the pensioner is found in a departmental or judicial
proceeding to have been guilty of grave misconduct or negligence, during the
period of his service, including service rendered on re-employment after retirement
: Provided that
departmental proceeding if instituted while the officer was in service, whether
before his retirement or during his re- employment, shall after the final
retirement of the officer, be deemed to be a proceeding under this article and
shall be continued and concluded by the authority by which it was commenced in
the same manner as if the officer had continued in service;
departmental proceedings, if not instituted while the officer was in service,
whether before his retirement or during his re- employment
shall not be
instituted save with the sanction of the Governor;
shall not be in
respect of any event which took place more than four years before such
conducted by such authority and in such place as the Governor may direct and in
accordance with the procedure applicable to departmental proceedings in which
an order of dismissal from service could be made in relation to the officer
during his service;
no such judicial
proceeding, if not instituted while the officer was in service, whether before
his retirement or during his re- employment shall be instituted in respect of a
cause of action which arose on an event which took place more than four years
before such institution; and
the Public Service
Commission, West Bengal, shall be consulted before final
orders are passed.
Explanation.For the purpose of this article
proceeding shall be deemed to have been instituted on the date on which the
statement of charges is issued to the officer or pensioner, or if the officer
has been placed under suspension from an earlier date, on such date; and
proceeding shall be deemed to have been instituted
in the case of
criminal proceeding, on the date on which the complaint or report of police
officer, on which the Magistrate takes cognizance, is made, and
in the case of a
civil proceeding, on the date on which the plaint is presented or, as the case
may be, an application is made to a Civil Court."
granting leave to examine the vires of Rule 10(1), it was directed that even if
the appeal succeeds, the benefit available to respondent No. 1 as per the
judgment of the High Court will not be recalled.
High Court by the impugned judgment has held Rule 10(1) to be ultra vires the
provisions of Articles 19(1)(f) and 31(1) of the Constitution. It was held that
the pension was a property and its payment does not depend upon the discretion
of the Government.
is not a bounty payable on the sweet-will and the pleasure of the Government
and to receive pension is a valuable right of a Government servant is a
well-settled legal proposition. The question in the present case, however, is
not about the deprivation of the said right by the Government by an executive
order but is about the constitutional validity of Rule 10(1) providing for
withholding of pension or part thereof in certain cases.
19(1)(f) and 31(1) have been repealed by the Constitution (Forty-Fourth
Amendment) Act, 1978 w.e.f. 20th June, 1979.
The right to property is no longer a fundamental right. It is now a
constitutional right, as provided in Article 300A of the Constitution. Right to
receive pension was a fundamental right at the time of framing of Rules in
1971. The question is whether a Rule framed under proviso to Article 309 of the
Constitution providing for withholding of the pension would ipso facto be ultra
vires, being violative of Article 19(1)(f) as it stood in 1971 when Rules were
High Court has, in the impugned judgment, made reference to a decision of this
Court in Deokinandan Prasad v. The State of Bihar and Ors. [(1971) 2 SCC 330] for coming to the conclusion that the rule
in question is ultra vires. In the said case, this Court held that the right to
receive pension was wrongly withheld by an executive order. The Judgment in Deokinandan
Prasad's case in fact lends support to the vires of the rule since it was held
in that case that an employee can be deprived of the pension by an authority of
law. That authority, in the present case, is contained in the rules [Rule 10(1)],
that were framed providing for withholding of the pension.
State Rules or Regulations vest power for withholding or reduction of pension
on compliance of principles of natural justice. The question of an order
withholding or reducing pension being invalid and bad in law on a legally
permissible ground is one thing but to hold the rule ultra vires is another. In
State of Uttar Pradesh v. Brahm Datt Sharma and Anr.
[(1987) 2 SCC 179], this Court observed that if the Government incurs pecuniary
loss on account of misconduct or negligence of a Government servant and if he
retires from service before any departmental proceedings are taken against him,
it is open to the State Government to initiate departmental proceedings, and if
in those proceedings, he is found guilty of misconduct, negligence or any other
such act or omission as a result of which Government is put to pecuniary loss,
the State Government is entitled to withhold, reduce or recover the loss
suffered by it by forfeiture or reduction of pension. In State of Punjab v. K.R. Erry [(1973) 1 SCC 120], it
was held that the State Government could not direct cut in pension of officers
without giving a reasonable opportunity of hearing. In State of Maharashtra v. M.H. Mazumdar [(1988) 2 SCC 52],
it was observed that the State Government's power to reduce or withhold pension
by taking proceedings against a Government servant, even after his retirement
is expressly preserved by the rules.
10(1) is the authority of law under which the pension could be withheld on
compliance of stipulations of the rule. We are unable to appreciate how such a
rule could be held ultra vires even at a point of time when pension was a
property to which Article 19(1)(f) was applicable.
view of the above, we set aside the impugned judgment to the extent it declares
Rule 10(1) ultra vires.
appeal is allowed accordingly.