Excelsior Correspondent
SRINAGAR, June 27: High Court has quashed the order of withholding retiral benefits of the Power Development Corporation employee with the direction to release all pensionary benefits as also the withheld salary of the retired employee.
Justice Vinod Chatterji Koul allowed the petition of Aftab Ahmad Malik who had challenged the order of withholding his retiral benefits as also the salary for the period for which he was suspended by the department.
Court said the Government is entitled to order the recovery of any amount from the pension of an officer on account of losses caused to the Government by the negligence or fraud of such officer during his service but the departmental proceedings are not instituted against the officer while he is in service or on duty, same shall not be instituted without sanction of the Government and shall be instituted within a year from the date he was last on duty.
“The proceedings must not pertain to an event which took place not more than one year before the date on which the officer was last on duty and where departmental proceedings are continued against an official who has retired on attaining superannuation or otherwise, he shall be entitled to provisional pension from the date of his retirement to the date on which proceedings are concluded and final orders passed and until such time the concerned officer is not entitled to gratuity”, Justice Koul clarified.
Court with these views held that withholding the pensionary benefits order is not legally sustainable and accepted the plea of aggrieved retired employee with the direction to the respondent-department to release the retiral along with all consequential benefits to which the petitioner is entitled to.
Court said the departmental enquiry has been ordered in terms of impugned order by a Committee to be constituted and such enquiry is not a departmental enquiry envisaged under Rules, but instead is an enquiry regarding alleged theft and embezzlement, in respect of an event, which had taken place in the year 2012, which per se is not in tune with the Article 168-A.
“Holding of such an enquiry in terms of impugned order by the respondents can also be said to be insignificant and inconsequential against the petitioner in view of the fact that the petitioner stands discharged and acquitted of the criminal charge by competent court in respect of allegations forming basis for holding of such enquiry”, read the judgment.
Referring to the Supreme Court on the issue, Justice Koul said that pension is a right and the payment of it does not depend on the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension as a property.
“It has further been held that the grant of pension does not depend on any one’s discretion. It is only for the purposes of qualifying 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 the pension flows to the officer not because of any such order but by virtue of the rules”, read the judgment.
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