By Karan Parihar, Advocate Rajasthan and Gujarat High Court

The pension is not bounty or gratuitous payment and does not depends upon the sweet will or grace of the employer, it can be claimed as matter of right as it is a deferred portion of compensation for services rendered in the past to the Government. Right to Receive pension comes under Article 300 A of the Constitution of India which cannot be taken away except by authority of law.[1] It does not depend upon the discretion of the Government but governed by the rules and regulations.[2]  Authority has limited power to decide on quantification of the amount regard to service and other allied matters, but the right to receive pension flows to the officer not because of any such order but by virtue of the rules.[3]

Article 300A of the Constitution of India reads as under: 300A 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. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution.

Supreme court in various pronouncement has settled the issue that revolved around the right of the employee to receive pension. the raison d’etre for payment of pension is it  is paid for past satisfactory service rendered, and to avoid destitution in old age as well as a social welfare or socio-economic justice measure.

One of the landmark judgment which still holds water is  D.S. Nakara and Ors. Vs. Union of India (UOI) (1983)1SC C 305 which specifically held that pensions as allowance or stipend paid in consideration of past service. It can termed as deferred portion of the compensation for rendered service as pensions payable to a Government employee is earned by him by rendering long and efficient service to the Government.

Supreme Court in State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Ors. (2013)12SC C 210), discussed the issue, “whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/criminal proceedings?”

Supreme Court while answering the above proposition held that Pension is the 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 300A of the Constitution of India. It can only be taken away when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office.

Importantly it is also settled principle that Process by which pension is taken away cannot be capricious, Arbitrary and Mala fide. This should be within the four corners of the law and law should follow the constitutional mandate under Article 300-A of the Indian Constitution.

[1] Brig.A.K. Malhotra v. Union of India – (1997) (4) SLR 51

[2] Deoki Nandan Prasad v. State of Bihar and Ors. [1971] Su. S.C.R. 634

[3] State of Punjab and Anr. v. Iqbal Singh MANU/SC/0459/1976 : (1976)IILLJ377SC