Excelsior Correspondent
SRINAGAR, Dec 16: Observing that post retiral benefits of an employee cannot be taken away by way of executive instructions which do not have any statutory character, the Division Bench of High Court while setting aside the single bench judgment on withholding the post retiral benefits and pension of an employee directed the authorities to grant it to him along with the interest of 6 percent per annum.
The Division Bench of Justice Sanjeev Kumar and Justice Rajnesh Oswal directed the authorities to process and release of retiral benefits, pension, GP Fund, Gratuity and leave salary and release the same within a period of eight weeks in favour of petitioner-Gh Mohi-ud-din Lone.
“It is made clear that if the case of petitioner for release of post retiral benefits is not processed and finalized within the stipulated period, the amount shall be payable with interest of 9 percent per annum”, DB said.
The appeal was filed against the writ court judgment whereby the decision of authorities for withholding the post retiral benefits of appellant-Lone was held valid in view of FIR against him for embezzlement registered with VoK when the appellant-Lone was holding the post of Soil Conservation Assistant.
The DB while referring the Article 168-A and 168-D of Civil Service Regulations said it is explicit that the Government is entitled to order recovery from the pension of an officer any amount on account of losses found in ‘Judicial’ or ‘departmental’ proceedings to have been caused to the Government by the negligence or fraud of such officer during his service but the same shall not be instituted without the sanction of the Government and shall be instituted within a year from the date he was last on duty.
“However, in terms of Article 168-D provides such proceedings against an official who has retired on attaining superannuation, shall be entitled to provision pension from the date of his retirement to the date on which the proceedings are concluded and final orders are passed”, DB recorded.
Court, referring the laws laid down by the Supreme Court in such cases, said that the hard earned benefit in the shape of pension and gratuity that accrues to an employee is in the nature of ‘property’ and the right to property may not been a fundamental right any more but it continues to be a constitutional right and cannot be taken away without due process of law.
The DB said that to deprive a person of his right to property, the State has to come up with a law within the meaning of Article 300A of the Constitution of India. “…Since neither ‘judicial proceedings’ nor ‘departmental proceedings’ against the appellant-Lone were instituted at the time of his retirement as such, there is no statutory mandate to deny the pension, gratuity and other post retiral benefits him”, DB recorded.
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