- (1.) AMITAVA Lala, J. The petitioner was suspended on 26th June, 2004. He was relieved from duty on 5th July, 2004. The petitioner was actually retired from service on 31st July, 2004. The allegations relate to the year 2003 on which the order of suspension was passed against the petitioner amongst 30 other officers taking a general stand.
(2.) FULL pensionery benefits alongwith gratuity and leave encashment etc. have not been paid as yet. No charges were framed against the petitioner. No charge-sheet has been submitted as yet. Against this background we want to consider the ratio of the judgments of the Hon'ble the Apex Court and High Courts cited before us although it is well known that pension is the property of the pensioner. In D. V. Kapoor v. Union of India & Ors. , AIR 1990 SC 1923 the Hon'ble the apex Court has held that a finding should be recorded either in departmental enquiry or judicial proceedings that the petitioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the authority concerned cannot impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period or to order recovery of the pecuniary loss, in whole or in part from the pension of the concerned employee. A Division Bench of Delhi High Court in Than Singh v. Municipal Corporation of Delhi, (1998 (1) Administrative Tribunal Judgments 66) has held that when till the date of petitioner's retirement disciplinary proceeding had not commenced, the respondent-authority thereafter ought not to have taken any disciplinary action against the petitioner and that the charge-sheet was served even after more than one year of the petitioner's retirement, the respondent authority cannot take shelter behind the order stated to have been passed after two years of the petitioner's retirement on the assumption that the petitioner still continued to be in respondent's service, such disciplinary proceeding is non-est. In the said judgment the respondents were directed to work out and pay the amount of retiral benefits, including pension, provident fund, leave salary, group insurance, C. D. S. amount to the petitioner within a period of two months from the date of receipt of the writ order failing which the respondents were made liable to pay appropriate interest at the rate of 12% per annum.
(3.) IN the case of Mahabir Prasad Sharma v. State of U. P. & Ors. , 2001 (3) UPLBEC 2060, a Division Bench of this Court held that if disciplinary inquiry commences-before the retirement then it must be completed within six months after the retirement. Further a Division Bench of our High Court in the case of Bangali Babu Misra v. State of U. P. & Ors. , (2004 (2) ATJ 63) has held that withholding of post retiral benefits may be gratuity, pension or other dues, after the retirement of a Government servant can be done only in accordance with any Rule and in absence of any such Rule or any such law, the post retiral dues cannot be withheld neither the pension can be stopped nor curtailed nor reduced. Therefore, the Division Bench allowed the writ petition by issuing a writ of mandamus upon the respondents to release the entire post retiral dues of the petitioner including gratuity, pension, commutation, leave encashment, Group INsurance etc. Learned Counsel appearing for the respondents contended that the decisions, which have been mentioned hereinabove, are not applicable to the peculiar facts and circumstances available herein. To take certain steps at least for release of gratuity, by showing the Annexure CA-5 to the counter-affidavit it has been stated that departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date. Both the parts are disjunctive from each other by incorporating the word 'or'.;