Kunal Chakrabarti v. Jawaharlal Nehru University

judgment was followed in D.S. Nakara v. Union of India [D.S. Nakara v. Union of India,

(1983) 1 SCC 305 : 1983 SCC (L&S) 145] by another Constitution Bench of this Court, which held that : (SCC pp. 320 & 323-24, paras 20, 29 & 31) "20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar [Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 : 1971 Supp SCR 634] : wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh [State of Punjab v. Iqbal Singh, (1976) 2 SCC 1 : 1976 SCC (L&S) 172] . ***

¶29Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the heyday of life to

your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus, the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'étre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. ***

¶31From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch." (emphasis supplied)

¶24The right to receive pension has been held to be a right to property protected under Article 300-A of the Constitution even after the repeal of Article 31(1) by the Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20-6-1979, as held in State of W.B. v. Haresh C. Banerjee [State of W.B. v. Haresh C. Banerjee, (2006) 7 SCC 651 : 2006 SCC (L&S) 1719] ."

¶16Consequently, in the light of the observations of the Supreme Court in the judgments referred to above and the provisions of Rule 9 of the CCS Pension Rules, I hereby direct the Respondent to release the pensionary benefits of the Petitioner, within a period of four weeks from today including the arrears w.e.f. 31.05.2019. Petitioner shall also be entitled to interest @ 9% per annum on the arrears of pension.

¶17Needless to state that this would be without prejudice to the rights of the Respondent to take action in accordance with law against the Petitioner, if so warranted.

¶18In view of the above the writ petition is allowed.

¶19All pending applications disposed of accordingly.

JYOTI SINGH, J NOVEMBER 23, 2020 rd

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 23.11.2020 + W.P.(C) 10619/2019 & CM APPL. 43857 & 43858/2019 KUNAL CHAKRABARTI ..... Petitioner Through: Mr. Abhik Chimni, Advocate versus JAWAHARLAL NEHRU UNIVERSITY ..... Respondent Through: Mr. Pradeep Kumar Arya & Mr. Ashwyn Kalra, Advocates JYOTI SINGH, J. (ORAL) 1. Petitioner herein was appointed to the post of Assistant Professor in School of Historical Studies in Jawaharlal Nehru University on 19.04.1979. As per the chronology set out in the petition, after a service of almost 40 years, closer to his retirement, a Show Cause Notice was issued to the Petitioner on 20.09.2018 by the Respondent seeking explanation as to why action should not be taken against the Petitioner for actively participating in the strike on 31.07.2018 along with certain other faculty members, thereby violating Instructions contained in DOPT OM dated 19.09.2017 and Rule M7(6) of the Academic Rules and Regulations of the University. 2. Petitioner has admittedly retired on superannuation on 31.05.2019. It is averred in the petition that the Petitioner has completed all the necessary formalities and submitted the necessary documents for processing his retiral benefits by 11.06.2019. 3. On 19.07.2019, Petitioner wrote to the University/Respondent stating that he had learnt that the University was intending to issue a Chargesheet against him and sought to inquire the reasons for the proposed Chargesheet. However, no response was received. 4. On 30.07.2019 the Respondent issued a No Dues Certificate implying thereby that there was no amount pending against the Petitioner. Petitioner further avers that some of the other faculty members against whom Show Cause Notice dated 20.09.2018 and subsequent Chargesheet dated 24.07.2019 was issued, challenged the same before this Court in W.P.(C) 8686/2019 on 07.08.2019. On 14.08.2019, the Court stayed the inquiry proceedings and the Show Cause Notices. 5. On 29.08.2019, Petitioner again wrote to the University for releasing his retiral benefits. On the same day Petitioner received a response from the Respondent intimating him that his retiral benefits had been kept on hold till the Chargesheet is finalized. Petitioner sought information as to why the Chargesheet was proposed to be issued and also filed an application under the Right to Information Act, 2005 seeking reasons for withholding his benefits, but to no avail. This led to the Petitioner filing the present petition seeking directions to the Respondent to forthwith release his retiral benefits alongwith interest @ 18% per annum w.e.f. 31.05.2019. 6. Pursuant to the notice issued in the present writ petition, Respondent has filed a short affidavit. It is stated in the Affidavit that the Petitioner while in service participated in one-day strike in the University Campus on 31.07.2018 which was considered as illegal by the University Administration. It was thus decided to issue Show Cause Notice to the Petitioner regarding a Major Penalty. Accordingly, a Show Cause Notice dated 20.09.2018 was issued. Since the Petitioner retired in the meantime on superannuation on 31.05.2019, approval has been sought from the Competent Authority vide communication dated 26.08.2019, for initiation of proceedings against the Petitioner and the same is awaited. 7. It is further stated in the Affidavit that on 11.10.2019 gratuity of Rs.20 Lacs has been released to the Petitioner and vide order dated 11.10.2019 leave encashment for 300 days has also been disbursed. It is further stated that in view of the totality of the circumstances of the case, pension has not been released as the Respondent is proposing to take action under Rule 9 of the CCS (Pension) Rules, 1972. 8. I have heard learned counsels for the parties. 9. It is an admitted position between the parties that till date no chargesheet has been issued against the Petitioner and thus no proceedings are pending against the Petitioner under Rule 9 of the CCS (Pe