STATE OF WEST BENGAL Vs. HARESH C BANERJEE
LAWS(SC)-2006-8-83
SUPREME COURT OF INDIA (FROM: DELHI)
Decided on August 30,2006

STATE OF WEST BENGAL Appellant
VERSUS
HARESH C.BANERJEE Respondents





Cited Judgements :-

G.V. SESHAMAMBA VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2021-3-130] [REFERRED TO]
DINAVAHI LAKSHMI KAMESWARI VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2020-8-14] [REFERRED TO]
DR. ANISUR RAHAMAN VS. STATE OF WEST BENGAL [LAWS(CAL)-2022-3-44] [REFERRED TO]
G. VIJAYA LAKSHMI VS. REGISTRAR, OSMANIA UNIVERSITY, HYDERABAD [LAWS(APH)-2016-2-70] [REFERRED TO]
BRAJENDRA KUMAR SINGH VS. STATE OF U.P. [LAWS(ALL)-2022-8-104] [REFERRED TO]
GOUR CHANDRA SARKAR VS. STATE OF WEST BENGAL [LAWS(CAL)-2010-5-13] [REFERRED TO]
SHYAM DEV VS. STATE OF CHHATTISGARH AND OTHERS [LAWS(CHH)-2017-2-84] [REFERRED TO]
M.S. JOGIA VS. STATE OF GUJARAT AND ORS. [LAWS(GJH)-2016-2-210] [REFERRED TO]
GENERAL MANAGER, CANANRA BANK VS. PRAKASH N. MANDVE [LAWS(MPH)-2022-2-238] [REFERRED TO]
RAMESH C V VS. DIRECTOR OF AGRICULTURE [LAWS(KER)-2014-6-197] [REFERRED TO]
PREM SINGH VS. STATE [LAWS(RAJ)-2007-11-34] [REFERRED]
P. GUNASEKARAN VS. REGIONAL JOINT REGISTRAR [LAWS(MAD)-2017-10-159] [REFERRED TO]
MANISH G. GAGWANI VS. STATE OF GUJARAT [LAWS(GJH)-2022-9-1017] [REFERRED TO]
BANK OF BARODA AND OTHERS VS. THE APPELLATE AUTHORITY AND OTHERS [LAWS(ALL)-2016-10-53] [REFERRED TO]
PRATIMA MODI VS. STATE OF BIHAR [LAWS(PAT)-2019-10-46] [REFERRED TO]
BENULAL DUTTA VS. STATE OF MEGHALAYA [LAWS(MEGH)-2017-9-3] [REFERRED TO]
COURT ON ITS OWN MOTION VS. STATE OF H P & OTHERS [LAWS(HPH)-2017-11-52] [REFERRED TO]
UNION OF INDIA VS. VIRENDRA KUMAR SINGH [LAWS(PAT)-2021-9-32] [REFERRED TO]
M.SUCEELA BAI VS. GOVERNMENT OF TAMIL NADU [LAWS(MAD)-2019-9-125] [REFERRED TO]
HIRA LAL VS. STATE OF BIHAR [LAWS(SC)-2020-2-63] [REFERRED TO]
STATE OF WEST BENGAL & ORS, VS. ASWINI KUMAR MAHATO [LAWS(SC)-2016-6-53] [REFERRED TO]
I K KANNIAPPAN VS. SECRETARY TO GOVERNMENT FINANCE PENSION DEPARTMENT GOVERNMENT OF TAMIL NADU CHENNAI [LAWS(MAD)-2011-11-246] [REFERRED TO]
DISTRICT MANAGER, BIHAR STATE FOOD AND CIVIL SUPPLIES CORPORATION LTD. VS. ANURADHA DEVI [LAWS(PAT)-2022-2-6] [REFERRED TO]
BRAJ KISHORE SINHA VS. STATE OF BIHAR [LAWS(PAT)-2020-8-35] [REFERRED TO]
AREVARAPU VS. INDIAN OVERSEAS, ANDHRA LOYALA COLLAGE CAMPUS BRANCH [LAWS(APH)-2021-5-32] [REFERRED TO]
SHYAM NARAYAN DUBEY VS. STATE OF U P AND ORS [LAWS(ALL)-2013-9-372] [REFERRED]
SATNAM VS. STATE OF HIMACHAL PRADESH [LAWS(HPH)-2021-4-28] [REFERRED TO]
HARI OM RASTOGI VS. STATE OF U.P. [LAWS(ALL)-2022-5-124] [REFERRED TO]
SITARAM SAH VS. STATE OF JHARKHAND [LAWS(JHAR)-2016-5-227] [REFERRED TO]
UDAI NARAIAN OJHA VS. STATE OF U.P. [LAWS(ALL)-2020-1-81] [REFERRED TO]
KASHINATH BISWAS VS. STATE OF WEST BENGAL [LAWS(CAL)-2014-1-76] [REFERRED TO]
ANGAD PRASAD VISHWAKARMA VS. STATE OF CHHATTISGARH, THROUGH SECRETARY, DEPARTME [LAWS(CHH)-2018-2-62] [REFERRED TO]
R SUNDARAM VS. TAMIL NADU STATE LEVEL SCRUTINY COMMITTEE [LAWS(SC)-2023-3-53] [REFERRED TO]
B. S. HARI COMMANDANT VS. UNION OF INDIA [LAWS(SC)-2023-4-39] [REFERRED TO]
LILAWATI MISHRA VS. STATE OF BIHAR [LAWS(PAT)-2022-5-4] [REFERRED TO]
LILAWATI MISHRA VS. STATE OF BIHAR [LAWS(PAT)-2022-5-28] [REFERRED TO]
NEERAJA MARWAHA VS. STATE OF H P [LAWS(HPH)-2014-11-84] [REFERRED TO]
PRANAB KANTI DE VS. WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. AND OTHERS [LAWS(CAL)-2018-5-145] [REFERRED TO]
MD. SAYED VS. STATE OF WEST BENGAL AND ORS. [LAWS(CAL)-2016-12-75] [REFERRED TO]
RAM BABU SAHU VS. STATE OF U P [LAWS(ALL)-2012-2-4] [REFERRED TO]
TARACHAND AGARWAL VS. STATE OF RAJASTHAN [LAWS(RAJ)-2014-3-184] [REFERRED TO]
M.L. MITTAL VS. STATE OF M. P. [LAWS(MPH)-2021-12-108] [REFERRED TO]
SURJEET KAUR VS. STATE OF PUNJAB [LAWS(P&H)-2020-10-124] [REFERRED TO]
STATE OF JHARKHAND AND ORS. VS. JITENDRA KUMAR SRIVASTAVA AND ANR. [LAWS(SC)-2013-9-128] [REFERRED TO]
V.RAGHUDHARAN VS. UNION BANK OF INDIA AND OTHERS [LAWS(KER)-2016-2-180] [REFERRED TO]
DURGA BALA MAITY VS. THE STATE OF WEST BENGAL & ORS. [LAWS(CAL)-2012-2-393] [REFERRED TO]
AHMADI USMAN VS. STATE OF U P [LAWS(ALL)-2012-3-29] [REFERRED TO]
R. LALKHUM VS. STATE OF MANIPUR [LAWS(GAU)-2011-6-74] [REFERRED TO]
JAYSHREEBEN KRISHNALAL SOMANI VS. CENTRAL BANK OF INDIA [LAWS(GJH)-2016-11-1] [REFERRED TO]
STATE OF JHARKHAND VS. UMESH CHANDRA SINGH [LAWS(JHAR)-2013-12-43] [REFERRED TO]
DEVI PRASAD MISHRA VS. STATE OF U P THROUGH SECY BASIC EDU LKO & ORS [LAWS(ALL)-2018-4-180] [REFERRED TO]
NIRMAL KIUMAR DUTTA VS. KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY [LAWS(CAL)-2013-3-111] [REFERRED TO]
S.M. MANSOOR AKHTAR VS. STATE OF BIHAR [LAWS(PAT)-2022-11-27] [REFERRED TO]
SUDHIR CHANDRA SAH VS. STATE OF BIHAR [LAWS(PAT)-2020-5-6] [REFERRED TO]
STATE OF JHARKHAND VS. JITENDRA KUMAR SRIVASTAVA [LAWS(SC)-2013-8-19] [REFERRED TO]
STATE OF BIHAR VS. SURENDRA PRASAD SINHA [LAWS(PAT)-2022-4-6] [REFERRED TO]
SRIKUMAR CHATTOPADHYAY VS. STATE OF WEST BENGAL [LAWS(CAL)-2021-3-36] [REFERRED TO]
GOUR KANTI SAMANTA VS. STATE OF WEST BENGAL [LAWS(CAL)-2013-3-77] [REFERRED TO]
M.K. SAKTHIDHARAN VS. STATE OF KERALA [LAWS(KER)-2014-6-98] [REFERRED TO]


JUDGEMENT

Y. K. Sabharwal, Cji- - (1.)The 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 as under :
"10. Right of the Governor to withhold pension in certain cases. (1) The Governor reserves to himself the right of withholding or 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

(a) such 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;

(b) such departmental proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment

(i) shall not be instituted save with the sanction of the Governor;

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be 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;

(c) 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

(d) the Public Service Commission, West Bengal, shall be consulted before final orders are passed.

Explanation. For the purpose of this article

(a) a departmental 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

(b) a judicial proceeding shall be deemed to have been instituted

(i) 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

(ii) 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."

(2.)While 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.
(3.)The 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.


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