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2013 (10) TMI 294 - SC - Indian LawsWithholding of Pension - Departmental/ Criminal Proceedings - Whether in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings - Held that:- The order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 was maintainable - It may be that under the Pension Act there was a bar against a civil court entertaining any suit relating to the matters mentioned - That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. The right of the petitioner to receive pension was property under Article 31(1) and by a mere executive order the State had no power to withhold the same - Similarly, the said claim was also property under Article 19(1)(f) and it was not saved by Sub-article (5) of Article 19. For the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules - The Rules clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned. Whether the pension granted to a public servant was property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India [1962 (1) TMI 55 - PUNJAB & HARYANA HIGH COURT] - such a right constitutes “property” and any interference will be a breach of Article 31(1) of the Constitution - It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. A person cannot be deprived of this pension without the authority of law, which was the Constitutional mandate enshrined in Article 300 A of the Constitution - It followed 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 - It hardly needs to be emphasized that the executive instructions were not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A - On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity - so far as statutory rules were concerned, there was no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.
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