"RIGHT TO RECEIVE PENSION IS TREATED AS RIHGT TO PROPERTY - SUPREME COURT JUDGEMENT"
ALL INDIA STATE BANK OFFICERS’ FEDERATION
(Registered under the Trade Unions Act 1926, Registration No: 727/MDS)
State Bank Buildings, St. Mark’s Road, Bangalore – 560 001
CIRCULAR NO. 78 DATE: 20.08.2013
TO ALL OUR AFFILIATES/MEMBERS:
RIGHT TO RECEIVE PENSION IS TREATED AS RIGHT TO PROPERTY - SC
‘RETIREMENT BENEFITS CAN’T BE WITHHELD PENDING ENQUIRY’
We have to-day sent a communication to the Corporate Office in respect of the landmark Judgement delivered by the Hon’ble Supreme Court of India presided over by the bench headed by Justice K.S. Radhakrishnan and Justice A.S. Sikri, in an appeal filed by the State Govt. of Jharkhand V/s Jitendra Kumar Srivastava, wherein the bench has ruled that Pension, Leave Encashment, Gratuity and other benefits on Superannuation is treated as right to property, vested in the hands of retirees under Article 300 A of the Constitution of India. A copy of our communication is enclosed for your information.
With greetings,
(Y.SUDARSHAN)
GENERAL SECRETARY
ALL INDIA STATE BANK OFFICERS’ FEDERATION
(Registered under the Trade Unions Act 1926, Registration No: 727/MDS)
State Bank Buildings, St. Mark’s Road, Bangalore – 560 001
No.6466/59/13 Date: 20.08.2013
To,
The Dy.Managing Director and CDO,
State Bank of India
Corporate Centre,
Madame Cama Road,
MUMBAI.
Dear Sir,
RIGHT TO RECEIVE PENSION IS TREATED AS RIGHT TO PROPERTY - SC
‘RETIREMENT BENEFITS CAN’T BE WITHHELD PENDING ENQUIRY’
In a landmark Judgement delivered by the Hon’ble Supreme Court of India presided over by the bench headed by Justice K.S. Radhakrishnan and Justice A.S. Sikri, in an appeal filed by the State Govt. of Jharkhand V/s Jitendra Kumar Srivastava, the bench has ruled
that Pension, Leave Encashment, Gratuity and other benefits on superannuation is treated as right to property, vested in the hands of retirees under Article 300 A of the Constitution of India.
The judgment further stated that the employer cannot reduce the pension or deny the full gratuity, leave encashment and other benefits on the grounds of administrative instructions/executive orders, pending departmental enquiry or criminal proceedings against the employee concerned, as it is against the provision of the Constitution of India.
Even if such administrative guidelines/executive orders are framed under the powers of the respective institution, it cannot override the provisions of the Article 300 A of the Constitution of India.
2. We reproduce hereunder the gist of the order as follows:
……..“It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Right to receive pension was treated as right to property.”
……..“According to Article 300 A of the Constitution, no person shall be deprived of his property save by authority of law. A person cannot be deprived of his pension without the authority of law. It follows that the attempt of the appellant [in this case the
Jharkhand government] to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”
………“It hardly needs to be emphasised that the executive instructions do not have statutory character and, therefore, cannot be termed as ‘law’ within the meaning of Article 300A of the Constitution. On the basis of such a circular, which is not having force of law, the appellant cannot withhold — even a part of pension or gratuity. So far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.”
3. In this connection we draw your attention to our letter No. 6466/27/13 dated 20th June, 2013 sent to you to release the full pension, gratuity, leave encashment and other benefits withheld in respect of our office bearers of various Circle Association who were placed/retired under Rule 19(3) of SBISR on account of charge sheet issued and pending departmental enquiry, in the light of the Judgement of the Supreme Court of India.
Please treat the matter as urgent.
Thanking you,
Yours faithfully,
(Y.SUDARSHAN)
GENERAL SECRETARY
Right to pension cannot be taken away pending proceedings: SC--Times of India
NEW DELHI: Observing that gratuity and pension are hard earned benefits of an employee and right to receive pension is in the nature of "property", the Supreme Court has held that this right cannot be taken away from a government employee pending departmental or criminal proceedings.
"It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of "property".
"This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India," a bench of justices K S Radhakrishnan and A K Sikri said.
The court passed the judgement while dismissing the appeal of Jharkhand government against the state's high court order directing it to release the withheld dues of its retired employee Jitendra Kumar Srivastava, who had criminal cases pending against him.
"We are of the opinion that the right of the petitioner (Srivastava) to receive pension is property under Article 31(1) (of the Constitution) and by a mere executive order the State had no power to withhold the same."
"...the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of Constitution, and as such the writ petition under Article 32 is maintainable," the bench said.
It also said "a person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."
Right to pension cannot be taken away pending proceedings: Apex Court--Business Line
NEW DELHI, AUG 20:
Observing that gratuity and pension are hard earned benefits of an employee and right to receive pension is in the nature of “property”, the Supreme Court has held that this right cannot be taken away from a government employee pending departmental or criminal proceedings.
“It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of “property”.
“This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India,” a bench of justices K.S Radhakrishnan and A.K Sikri said.
The court passed the judgement while dismissing the appeal of Jharkhand government against the state’s high court order directing it to release the withheld dues of its retired employee Jitendra Kumar Srivastava, who had criminal cases pending against him.
“We are of the opinion that the right of the petitioner (Srivastava) to receive pension is property under Article 31(1) (of the Constitution) and by a mere executive order the State had no power to withhold the same.
“The order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of Constitution, and as such the writ petition under Article 32 is maintainable,” the bench said.
It also said “a person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”
The state government had moved the apex court challenging the October 31, 2007 order of a division bench of the high court which had held that under the Bihar Pension Rules, the government does not have power to withhold gratuity and pension during the pendency of departmental or criminal proceeding and or withhold leave encashment at any stage either prior to or after conclusion of the proceeding.
The order of the high court had come on a writ petition filed by the petitioner, who had retired from the post of Artificial Insemination Officer, Ranchi in 2002, seeking release of part of his pension and other dues.
He had joined the Department of Animal Husbandry and Fisheries in Bihar government in 1966. In 1996 two cases were registered against him under various sections of Indian Penal Code and also Prevention of Corruption Act for alleged financial irregularities during the years 1990 and 1991 when he was posted as Artificial Insemination Officer, Ranchi.
After formation of state of Jharkhand, he became the employee of that state while his prosecution in two criminal cases remained pending.
After his retirement in 2002, the government sanctioned 90 percent provisional pension while remaining 10 percent pension and salary of his suspension period was withheld pending outcome of the criminal cases/departmental inquiry against him. He was also not paid leave encashment and gratuity.
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ReplyDeleteThis headline has been in news in almost all newspapers.Right to pension cannot be taken away pending proceedings: Apex Court.
ReplyDeleteIn case you looking for judgment that actually says this. Here is the link to that.
http://law.geekupd8.com/2015/11/pension-or-Gratuity-and-even-leave-Encashment-cannot-be-taken-away-when-proceedings-pending.html
Sir, My father was removed from SBI on framed charges of corruption (Framed as he was propagating RSS activities ) . He has put in 17 1/2 years of service. He is denied pension. He was JMG I, removed from service in 1992 and he was not paid pension, quoting sBI providente funds rules do not entail him pension bebefits Can you please enlighten us whether the bebefit of above judgement favour him? Your early reply will be gratefully acknowleged. I can be contacted at jajisarma@yahoo.com
ReplyDeleteYou may seek remedy through legal action if needed. In the meantime please consult a good advocate, and send legal notice to bank management. You may find out the advocate who was instrumental in aforesaid verdict of Supreme Court.in my opinion, bank cannot stop pension in any case. However advocate will draft a good petition quoting above verdict of Apex court. If possible advocate may seek assistance from learned advocate of Supreme Court who won the said case. In court of law, role of advocate is key to success. His Honesty and devotion is more important. As such selection of good advocate is prime need for victory. Otherwise decision in court is delayed by decades in collusion with bank management,i.e... defendant
ReplyDelete