NEW DELHI: The Government can withhold pension for a specified period if an employee is found, in departmental or judicial proceedings, guilty of grave misconduct or negligence, the Supreme Court has held.

"If the Government incurs pecuniary loss on account of misconduct or negligence of a government servant and if he retires before any departmental proceedings are taken, it is open to the Government to initiate departmental proceedings. If in those proceedings he is found guilty of misconduct, negligence or any other act or omission, as a result of which the Government is put to pecuniary loss, the Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension."

A Bench of the Court comprising Chief Justice Y. K. Sabharwal, Justice C. K. Thakker and Justice P. K. Balasubramanyan gave this ruling, upholding the validity of Rule 10 (1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, providing for withholding pension or part of it for certain reasons. The Calcutta High Court, dealing with a petition from Haresh C. Banerjee and others, had held Rule 10 (1) ultra vires Articles 19 (1) (f) and 31 (1) of the Constitution. It held that pension was a property and its payment did not depend upon the Government's discretion.

Setting aside the High Court judgment and allowing the appeal by the West Bengal Government, the Bench said: "Pension is not a bounty payable at the sweet will and pleasure of the Government and to receive pension is a valuable right of a government servant is a well-settled legal proposition. The question in the present case, however, is not about the deprivation of the right by the Government by an executive order but is about the Constitutional validity of Rule 10(1)." "The right to property is no longer a fundamental right," the Bench said. "It is now a Constitutional right, as provided in Article 300A. Right to receive pension was a fundamental right at the time of framing of Rules in 1971. Rule 19 (1) is the authority of law under which pension could be withheld on compliance with stipulations of the rule. We are unable to appreciate how such a rule could be held ultra vires even at a time when pension was a property to which Article 19 (1) (f) was applicable."

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