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.;