- (1.) THE principal questions which fall for considerations from the reference order dated 17. 7. 1991 can safely be itemised as under : 1. Whether withholding or postponing the payment of pension or gratuity amount due on account of commutation of pension is permissible in law. 2. Whether the authorities could withhold or postpone the payment of retiral benefits? 3. Whether the Government can initiate or continue with the departmental enquiry long after the date of alleged lapse inspite of the fact that the Officer had retired from service many years back? 4. Should the enquiry proceedings be quashed on the ground of long pendency alone?
(2.) IT is expedient to collate the facts and circumstances under which the case has come before the Full Bench. Though facts in the writ petitions being disposed of by this judgment are distinct but in order to answer the questions succinctly facts from civil writ petition No. 4970 of 1988 Dr. Ishar Singh v. State of Punjab and Anr. may be taken.
(3.) PETITIONER joined as Assistant Dental Surgeon in the year, 1949. He was promoted to various, posts including that of head of the Department in 1975. Lastly he was promoted and posted as Principal; Dental College and Hospital, Amritsar. He. retired from service on superannuation on 31. 8. 1982. The petitioner's son was admitted to the M. D. S. Course, in the specialisation of oral surgery in Guru Nanak University on 26. 8. 1977. On the eve of his retirement i. e. on 30. 8. 1982 a day prior to his superannuation charges were levelled against the petitioner that while posted as Principal, Dental College and Hospital, Amritsar, (i) he fraudulently and dishonestly secured admission of his son in M. D. S. Course by attesting a copy of a forged certificate certifying his son having secured higher marks then infact secured by him in his B. D. S. Examination; (ii) he in connivance with his subordinates caused disappearance of the original record with regard to the admission of his son. The petitioner was sanctioned 100% provisional pension, though his gratuity was withheld. Petitioner's claim for commutation of the pension was also denied. The petitioner challenged the order of granting provisional pension, refusal to allow commutation of pension and withholding of gratuity, albeit no proceedings for imposing a cut in the pension could have been initiated against the petitioner with regards to events that had happened more than 4 years ago. It was further claimed that denial of benefit of the rule of limitation for initiating proceedings for withdrawing or withholding of pension to the persons about to retire while benefit of such limitation was granted to those who have just retired amounts to artificial and arbitrary classification as there is no nexus for treating the persons who have recently retired as a Class by themselves and putting a bar against initiation of proceedings against them with respect to events that occurred 4 years before while persons on the verge of retirement can be proceeded against for such events with the object to be achieved by the rules. Payment of his last month's pay and the bills of medical reimbursement was sought. Further a prayer for quashing the notice for imposition of a cut of 10% in pension vide order dated 18. 1. 1988 was made. Petitioner in civil writ petition No. 12654 of 1990 retired on 30. 11. 1989 on superannuation white a charge sheet was served on him on 29. 11. 1989. Full pension was released to hint provisionally but his other retired benefits were withheld. Petitioner in CWP No. 2825 of 1986 was retired on 31. 12. 1986 and a charge sheet was served on him on. 29. 1. 1986. In these petitions the issuance of charge sheet has been challenged, apart from the grounds of challenge stated above on the ground that the relationship of master and servant ceased on the retirement of the petitioner and hence no enquiry can proceed against him. In the other writ petition No. 6305 of 1986 the petitioner was suspended on 16. 11. 1983 and reinstated on 12. 4,1934. Finally a charge sheet was issued to him on 1. 7. 1984. During the pendency of the enquiry provisional pension initially at 75% of the pension and thereafter 20 % more was released. Finally on 28. 8. 1986 a cut of 10% in the pension of the petitioner was imposed after returning a finding that the charges of (i) purchase of stocks already available (ii) purchase of stocks beyond the prescribed stock limit particularly of slow moving articles at high fates stood proved. Except for imposing a cut of 10% in the pension, all other retiral benefits were released, after reviewing the conduct of the petitioner during the tenure of service. Petitioner claimed that pension can not be retained to recover Govt. dues. In civil writ petition No. 1173. of 1987 the petitioner retired on 30. 11. 1986. A charge sheet was served on him on 25. 11. 1986 with respect to irregular sanction of leave period when the petitioner went for foreign assignment, some other demands were also made but they are irrelevant for the purpose of disposing of the writ on merit. Penultimate questions which survive for consideration are the same as referred to above in all the writ petitions, although the facts slightly differ. So far as the pension rule are concerned, these are substantially the same in the two States of Punjab and Haryana. Learned counsel for the petitioners articulated the questions as under: "whether the Government has the right to withhold the pensionary benefits simply because some charge sheet has been served or no further action has been taken on the charge sheet already served, enquiry proceedings initiated?" It was urged that grant of pension is implied and it comes into operation from the date of person retires from service irrespective of pendency of any proceedings. Learned counsel for the petitioners argued that Government has no right to withhold or postpone the pensionary benefits. Once a person has retired his pension cannot be withheld on a finding of misconduct or negligence daring the period of service including the service rendered by an employee during his re-employment. The finding of misconduct has to precede the order adversely affecting the pension in any manner. The enquiry proceedings cannot continue indefinitely. Delay is enough to quash the proceedings. The limitation of 4 years provided for initiating departmental proceedings after retirement should be read into the rules authorising to initiate proceedings before retirement. It has been vehemently argued that there is no right with the Government to withheld pension in anticipation of the exercise of its right to withhold or withdraw the pension. In the same strain the learned counsel argued that any amount due from the pensioner to the Government or any liability of the pensioner towards the Government would not adversely affect the retiree in his entitlement for pension. State could exercise its right to recover its dues or enforces the liability of the pensioner or recover the pecuniary loss caused by the pensioner to the State in accordance with law, without affecting the pension. It was urged that under the statutory rules there is nothing known as interim pension, full pension has to be paid the withdrawal or withholding of the pension can be prospective and not retrospective. The word provisional in sanctioning the pension is of insignificant consequence.;