When Pension & Gratuity Are Payable To Retired Employee, It Becomes His Property Which Cannot Be Withheld Unless Law Provides For It: Calcutta HC
The Calcutta High Court said that when the pension and gratuity are payable to a retired employee, the same becomes his/her property which cannot be withheld unless the law provides for it.
The Court said thus in a writ petition filed by a man who was the employee of Chandernagore Banga Vidyalaya (school).
A Single Bench of Justice Aniruddha Roy observed, “Right to receive pension and gratuity are statutory rights arising out of successful completion of employment of an employee after retirement. The petitioner has retired on July 31, 2015, immediately the right of the petitioner has accrued to receive pension in terms of the Pension Order and the consequential gratuity. When the pension and gratuity are admittedly payable to a retired employee strictly in accordance with law, the same becomes a property of the retired employee which cannot be withheld or taken away unless law provides for it and without any established procedure of law.”
Advocates Soumya Majumdar and Bikash Shaw represented the petitioner while Advocate Piush Chaturvedi, Bhaskar Prasad Vaisya, and Chandreyi Alam represented the respondents.
Facts of the Case -
In 2004, the petitioner was appointed as the Headmaster in the school on a temporary basis and in 2005, he was appointed as the permanent Headmaster which was approved by the Additional District Inspector of Schools, Secondary Education, Chandernagore. In 2015, the respondent forwarded the pension papers of the petitioner to the Assistant Director, Pension, Provident Fund and Group Insurance, Department of Finance for approval at page 75 to the paper-book, Vol-1. Thereafter, a complaint was made by a local MLA to the Secretary of the School Education Department against the petitioner alleging misappropriation of fund at pages 359-360 to the paper-book, Vol-3. After some time, the petitioner retired and the Assistant Director returned the papers pertaining to the grant of pension to the petitioner.
Since pension and gratuity were not issued in favour of the petitioner despite the allegations not being established against him, he filed the writ petition. By an order of the court, the provisional pension was directed to be issued in his favour. The court referred the matter to carry out a detailed preliminary enquiry before the CBI (Central Bureau of Investigation). Being aggrieved by such direction, CBI preferred an appeal and the same was pending before the Division Bench. During the pendency of the writ petition, the High Court passed several orders from time to time and in February 2024, it directed the Jurisdictional Treasury Officer to deposit a sum of Rs. 28,67,213/- with the Registrar General. The respondents filed reports and the court was to decide the case.
The High Court in the above context of the case remarked, “In contemplation of initiation of a criminal proceeding against the petitioner by CBI, this Court is of the firm view that, the Clause 19(5) of the DCRB Scheme, 1981 shall not apply and the employment benefit of the petitioner cannot be withheld any further. The provisions laid down under Clause 19(5) of the DCRB Scheme, 1981 has no manner of application in the facts and circumstances of the instant case. The withholding of the Pension and Gratuity of the petitioner by the school authority and/or Chandernagore Municipality is totally illegal, wrongful, arbitrary and not tenable in law.”
The Court noted that as the pension and gratuity were withheld wrongfully, illegally, arbitrarily and without any authority of law, the petitioner shall have to be compensated with interest.
“The respondent no.3 shall calculate and process the payment of interest @ 8% per annum since the date of retirement of the petitioner, i.e., July 31, 2015 on the said sum of Rs.28,67,213/- till the date of deposit, i.e. February 23, 2024 with the Learned Registrar General of this Court, and shall transmit and send all the necessary records, calculation and instruction to the Jurisdictional Treasury Officer positively within a period of two weeks from the date of communication of this order”, it directed.
Furthermore, the Court ordered that the Jurisdictional Treasury Officer shall release the amount of interest and pay the petitioner by crediting his bank account to be furnished by the petitioner positively within a period of two weeks from the date of receiving the necessary calculation and instructions from the respondent.
“It is further made clear that, since the appeal preferred by CBI is pending, if ultimately CBI proceeds to probe into the issue and initiates any criminal proceeding and the petitioner is finally found to be guilty under the criminal trial, then the respondent no.3 shall be at liberty to take steps in accordance with law to recover the amount from the petitioner”, it clarified.
Accordingly, the High Court allowed the writ petition.
Cause Title- Kunal Chandra Sen v. State of West Bengal & Ors.
Appearance:
Petitioner: Advocates Soumya Majumdar, Bikash Shaw, Sumanta Biswas, and Sk. Saad Nafisul Islam.
Respondents: Advocates Bhaskar Prasad Vaisya, Avishek Prasad, Piush Chaturvedi, Suman Basu, and Chandreyi Alam.
