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Dr T.K.RAJA (PROFESSOR OF CHEMISTRY)     27 May 2015

Violation of fundamental right

Right to Pension is like a fundamental right and also a property right protected under Article 300 A of our Constitution. This right to pension cannot be taken away by an executive order.There are several Supreme Court verdicts in this regard. If this fundamental right to pension of an employee is violated by a higher Govt. Official (IAS Officer) what is the legal action the employee can take against such Govt. Officers. What is the punishment for such violation of fundamental right?

Dr.T.K.Raja, MSc, PhD

Student of BGL



Learning

 10 Replies

bsrao   28 May 2015

File a writ in the High Court against the government. The individual official is only liable for disciplinary action if found guilty (but they always escape).

Sudhir Kumar, Advocate (Advocate)     31 May 2015

You query is absolutely vague.

But be sure. 

Any fundamental right can be taken away by adopoting "procedure established by law" You query on popwer of IAS is not undrstood.  It is the post held by the officer and the procedure adopted by him matters.  His mode of entry in service is not relevant.  You can get a series of examples where fundamental rights are cdurbed by the powers exercised by non-gazzetted officers. for example:-

  1. A JE of electricity deptt can disconnect the power supply of house and confiscate all electrical gadgets if power supply is overa loaded or power theft is there.
  2. A trafffic constable (or even a forest guard) can confiscate any vehcile of any type and as the owner to get down and walk away.
  3. A mere police constable can arrest anyone without a warrant of court who is reasonably suppect in his opinion of having committed a cognizable offence.
  4. A forest guard has powers to confiscate licensed weapon in reserve area.
  5. A BSF constable at forntiers can forbid a farmer from entering his fields.
  6. A TTE can ask to to detrain despite a valid ticket if you commit certain forbidden actions on board.
  7. Air hostess can stop you from going to loo at certain time (may not even be govt employee).
  8. A qualified candidate for the Govt job (including IAS exam) can be asked to leave examination hall by invigelator who may be just primary teacher/clerk or may not even  be Govt employee.
  9. The peroperty/premises used in certain trades can be confisccate and occupant arrested by relevant employees if the trade is conducted as per licese conditions.
  10. A custom offiial stop a passanger from boarding place despite valid passport/visa and ticket.
  11. An official at polling station can stop a voter from casting vote despite entry in voter list and valid ID card.
  12. One can be expelled from educational institution and some of them are not headed by Gaz officer.
  13. A traffic constable can stop one from proceeding in a particular direction.
  14. A JE of corporation can stop one from constructing own house in onw land.
  15.  and so on.

 

Furtjher pension is not a Fundamental Right.

Sudhir Kumar, Advocate (Advocate)     31 May 2015

Originally posted by : bsrao
File a writ in the High Court against the government. The individual official is only liable for disciplinary action if found guilty (but they always escape).

Not able to agree or disagreed as no facts are stated by the queriest.  Pension  confiscation  can be ordered under certain circumstances following certain procedure.

Dr T.K.RAJA (PROFESSOR OF CHEMISTRY)     31 May 2015

 

Before 44th Amendment of the Constitution of India(1978) RIGHT TO PENSION was a fundamental right and also a property right. When property right was repealed as a fundamental right by the 44th Amendment, It became a Constitutional Right protected under Article 300 A enforceable by law. Hence Right to Pension is like a fundamental right and also a property right under article 300 A of our Constitution and cannot be taken away by any executive order because an executive order is not statutory in character and is not a law as well. The following portion of the Supreme Court judgment (2013) in Civil Appeal State of Jharkhand vs Jitendra Kumar clearly confirms the above stated postion on RIGHT TO PENSION. The Govt. can decide only quantum of pension according to pension rules. It has no statutory power to grant or not to grant pension toa a Govt Emploee.

PLEASE READ THE FOLLOWING EXTRACT FROM SUPREME COURT JUDGMENT.

Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion: “29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter- affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution. 31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein. 32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority. 33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. 34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property". 35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that 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 the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law”. 13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-- Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. 14. Article 300 A 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.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. 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. 15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. 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. As we noticed above, 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. 16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each. ……………………….J. [K.S. Radhakrishnan] ………………………….J. [A.K. Sikri] New Delhi August 14, 2013

Dr T.K.RAJA (PROFESSOR OF CHEMISTRY)     31 May 2015

Govt employee cannot be denied pension through admin order: SC
New Delhi, August 15, 2013, DHNS:
A government employee cannot be deprived of his pension and gratuity by
administrative order as the right to receive pension is recognised as a
Constitutional right to possess property, the Supreme Court has held.
The apex court explained that executive instructions do not have statutory character
and, therefore, cannot be termed as “law” which could allow the government to
divest the employee of his right as enshrined under Article 300A of the Constitution.
“The fact remains that there is an imprimatur to the legal principle that the right to
receive pension is recognised as a right to ‘property’. A person cannot be deprived of
this pension without the authority of law,” a bench of Justices K S Radhakrishnan
and A K Sikri said “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 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 300A of the
Constitution,” the bench added.
The court dismissed an appeal filed by Jharkhand government challenging a 2007
order of the HC’s division bench which had disallowed it to deny pension and gratuity
benefits to Jitendra Kumar Srivastava, who worked with animal husbandry
department, due to a pending criminal case against him.
Srivastava was deprived 10 per cent of his pension and salary benefits for seven
months of his suspension under the garb of pension rules circulars.
Going into the facts of the case, the bench said 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.
Source Link: https://www.deccanherald.com/content/351390/govt‐employee‐cannot‐deniedpension.
html

Sudhir Kumar, Advocate (Advocate)     31 May 2015

 

 

Read the supreme court directions as reproduced by you without quoting the title /citation of the case

 

 

Supreme court held

 

“executive instructions do not have statutory character and, therefore, cannot be termed as “law””

 

Meaning Thereby

 

Executive directions do not have force of law but the CCS(Pension) Rules framed as per proviso to  Article 309 do have force of law.

 

Supreme court held

“A person cannot be deprived of this pension without the authority of law “

 

Meaning Thereby

 

So a person can certainly be drprived of his pension with authority of law.  The authority has been provided under Pnesion rules framed as per proviso to  Article 309.

 

Supreme court held

 

“An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service”

 

Meaning Thereby

 

So an employee earns this benefit as long as the service is unblemish.  Therefore it can be deprived if the service is blemished.

 

Supreme court held

 

his right to property cannot be taken away without the due process of law

 

Meaning Thereby

 

You follow the due process of law and you can deprive someone of his right to pension.

 

Sudhir Kumar, Advocate (Advocate)     31 May 2015

You mkay better give facts of the case so that you could be advised.

Sudhir Kumar, Advocate (Advocate)     31 May 2015

I am thnakful to you for having considered me worth sendin PM although I have disagreed with all your views expressed therein as like views expressed in ooen thread.

 

You can cause a disciplinary action against any officail for hjaving acted malafide provided you are able to prove the malafide by challanging the same in appropriate court.

 

To understand your problemd you have to live with the following facts and come out of fancies :-

  • Any Fundamental right can be denied.  You can better read consititution of India Article 21:-

21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

  • .For denial of pension there is a except according to procedure established by law
    in forms the rules framed by the President in exercise of powers conferred under provisio to Article 309.
  • These rules include pension rules.
  • These rules are not merely administrative instruction but a statutory.
  • Pension rules have not so far been held by be unconstitutional by any court of law.  Even you  do not propose to challnage them.
  • The decision of denial pension can be challnaged if the same is not according to the procedure established by law.
  • The decision of denial pension can be challnaged if the same is not passed by an authroity competent to exercise the said procedure established by law.
  • The decision of denial pension can be challnaged if the same is baed on error of judgement even if by competent authroity and even baed on procedure established by law.

 


 

 

Sudhir Kumar, Advocate (Advocate)     31 May 2015

to make others understand your case you have to intimate:-

  1. when you retired
  2. when pension withheld
  3. reasons of withhldingpension
  4. the details of correspondence held before this order.
  5. any disciplinary/criminal cse pending at the time of retirement.

without thee facts none can understand your case and no proper advise can be given.

1 Like

Sudhir Kumar, Advocate (Advocate)     01 June 2015

WIsh to share my reaction to the facts given in the PM.

 

I know you will be annoyed to read my views.  

 

Read the facts given in PM.  So far you had hidden these facts and got no advise.

 

 

So far you had been saying that the employee was unblemished. Teacher is guilty of serious subversion of discipline.  She just had no business to leave country without having permission to do so. 

 

The school also acted wrongly.  They should have taken disciplinary action and then awarded a penalty.  If such penalty was dismissal/removal then pension is forfeited.  The school has simply terminated her.  Termination also entails forfeiture of pension.   Such like termination could have been challenged in time but by now it has become time barred and cannot be challenged.  On the country instead of challenging termination she applied for VR. Such right is there for a serving employee and not ex-employee. After termination she was ex-employee.  So application was correctly rejected. She has already gone to court and the court decided not to interfere. The court just allowed appeal to the Secretary which is under consideration.

 

SO the wrong action taken by the school has been corrected by her.  The management must be thankful to her.

In such a situation she has no actionable right to pension.  She can get pension only if she is able to get bounty of mercy of the Secretary on humanitarian grounds only. 

 

 

Now she has got an adviser like you who is wrongly convinced the action of deptt as UNCONSTITUTIONAL  and is planning of seeking disciplinary action against the Secretary. 

 

This way she get no mercy and rather liable for criminal action for defamation, if the said officer so desired.

 

 You are still confused. I can advise you if you are willing to stop meddling with constitutional provision without knowing them. I do not mind saying that you are now at this stage worst enemy of the said employee. 

 

I fully disagree with your view that [The meaning of the "due process of law" is that this right can be repealed only by another law enacted by Parliament]. law includes the laws made by the President Governor in exercise of powers conferred user proviso to Article 309 of the constitution ( which you have not read) The pension regulations from where right of pension originates  are also framed under same provision.  This set of rule also provides how right of pension is earned and how it is lost.


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