SHREE CHANDRASHEKHAR, J. - (1.) Umpteen times it has been held by Hon'ble Supreme Court that pensionary benefits of an employee cannot be withheld by a mere executive order, still, the growing number of cases filed in the Courts complaining illegal withholding or forfeiture of pension and pensionary benefits only points out to the impunity with which the executives have tried to deprive a person of his rightfuls which was lawfully due to him at the sunset of his career. The issue, whether pension is a reward for the past services or a bounty to a government servant was authoritatively decided in "Deokinandan Prasad Vs. State of Bihar" reported in (1971) 2 SCC 330; that right of a government servant to receive pension is property under Article 31(1) and by a mere executive order the State cannot withhold the same, seems to have been forgotten while proposing deduction of Rs.12,05,242/ - vide memo dated 11th August, 2005 from the death -cum - retiral dues of the deceased husband of the appellant -writ petitioner (hereinafter referred to as petitioner). This brought the petitioner before the Writ Court, which "disposed of" the writ petition by directing respondent -Corporation Bihar State Food & Civil Supplies Corporation Ltd. "to pay the payable amounts under E.P.F, Group Insurance and other retiral benefits which would remain payable after making recovery of proposed amount of loss".
(2.) Briefly stated, the undisputed facts of the case are summarized hereunder: - (i) The husband of the petitioner was appointed to the post of Lower Division Clerk on 17.01.1974. After more than 28 years of service, a First Information Report dated 5th December, 2002 under section 409, 420, 465 and 467 I.P.C was registered against the husband of the petitioner on the allegation of misappropriation of Rs.12,05,242/ -. A departmental proceeding was initiated against the husband of the petitioner, in which he did not appear, nor did he submit his reply to the show cause notice. In the meantime, notice dated 12th July, 2003 intimating the date of superannuation from service with effect from 31st July, 2003 was issued to him. The Chairman -cum -Managing Director, Bihar State Food and Civil Supplies Corporation Ltd., passed the punishment order dated 9 th January, 2004, whereunder the following punishments were imposed upon the husband of the petitioner: - (a) He shall not be entitled to any payment except subsistence allowance during the period of suspension; (b) the amount of Rs.12,05,242/ - with simple interest @ 18% to be adjusted from arrears of salary/allowances and gratuity payable to him and for recovery of the balance amount, criminal and civil cases to be instituted. (ii) The husband of the petitioner died on 2nd July, 2005 and the petitioner made representations dated 13th July, 2005 and 8th August, 2005 for payment of pension and other pensionary benefits, to which the respondent -District Manager, Bihar State Food and Civil Supplies Corporation Ltd. vide its letter dated 11th August, 2005 informed the petitioner about the punishment imposed upon her husband in the departmental proceeding. Constrained, petitioner approached the Writ Court in W.P (S) No. 1700/2006, which was disposed of in the aforesaid terms, noticed hereinabove.
(3.) On the basis of the pleadings of the parties and rival contentions, the following issue arises for consideration: - "Whether, after the death of the deceased employee, recovery in terms of punishment order dated 9th January, 2004 can be made from the pension and other retiral dues to the deceased employee - ;