The answer to your question will depend on the provisions contained in the statutory rules applicable for the government servants concerned.
For example, under the Central Civil Services (Pension) Rules, 1972, Rule 9 allows the Government the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement. This right of the Government to withhold or withdraw the pension is subject to conditions mentioned in this Rule 9.
However, under rules applicable to government servants of certain states, there may be no such statutory rules.
In this regard, it may be pointed out that in the case of State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 : AIR 2013 SC 3383, the Supreme Court has held that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus a 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, which is reproduced as under:
“300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.”
Observing that the right to receive pension is recognised as a right in “property”, the Supreme Court held that 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 was held that therefore the attempt of 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.
In the above case, it was found that there was no power to withhold pension under the provisions of Bihar Pension Rules, 1950, which was applicable in Jharkhand. In these circumstances, it was held that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of the aforesaid Article 300-A. It was held that on the basis of such a circular, which is not having force of law, the Government cannot withhold even a part of pension or gratuity. So far as statutory Rules are concerned, there was no provision for withholding pension or gratuity in the given situation. The Supreme Court held that had there been any such provision in these Rules, the position would have been different.
Thus, from the above observations of the Supreme Court, it is clear that if the statutory rules provide for withholding of pension, etc., it may be permissible, provided the rules have the force of law.
In view of the above observations of the Supreme Court, it would depend on the provisions contained in the relevant statutory rules framed by a concerned Government whether a power has been given to the Government to withhold pension and/or gratuity etc. and in what circumstances.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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