1 W.P.(S)No.5874of2007 InthematterofanapplicationunderArticle226ofthe [ACT]ofIndia JoyKumar[ENTITY] Petitioner Versus 1.TheStateofJharkhand 2.TheStateofBihar 3.TheSecretary,Food,SupplyandCommerce DepartmentofBihar,Patna [ENTITY] [ENTITY] [ENTITY] [ENTITY] [ENTITY] 9.TheDistrictManager,StateFoodandCivil SuppliesCorporation,Dumka Respondents ForthePetitioner :Mr.[ENTITY],Advocate FortheStateofJharkhand :Mr.[ENTITY],G.P.III FortheStateofBihar :Mr.[ENTITY],J.C.toGA,Bihar FortheRespondentNos.4&9:Mr.[ENTITY],Advocate Present HON'BLEMR.JUSTICESHREECHANDRASHEKHAR ByCourt: The petitioner has approached this Court seeking a
direction upon the respondents for payment of retiral dues, includingarrearsofpension.
2. Thebrieffactsofthecasearethat,thepetitionerwas appointed as Chaukidar (Class IV) in the Food, Supply and CommerceDepartment,GovernmentofBiharon02.05.1967.On 01.10.1973, the petitioner was sent on deputation in the Bihar StateFoodandCivilSuppliesCorporationandhewaspostedat Dumka. The petitioner superannuated from service w.e.f. 31.07.1991. Although,anothersimilarlysituatedpersonnamely, [ENTITY]whoretiredfromthepostofGodownOperatorin the Corporation, was granted the benefit of pension and other retiralbenefitshowever,thepetitionerwasdeniedthebenefitof pensionandtherefore,hehasapproachedthisCourtbyfilingthe presentwritpetition.
3. Acounteraffidavithasbeenfiledonbehalfofthe[ENTITY] in which it has been stated that, since the said [ENTITY], [ENTITY] and [ENTITY] had completedmorethan10yearsofservice,theywereentitledfor grantofpensionandaccordingly,theyweregrantedthebenefitof pension.
4. The respondent no. 9 namely, the [ENTITY] statingasunder:
10. "That, with regard to para5 it is stated and submittedthataftertheretirementthepetitionerhas been paid the following amounts towards the retirementbenefits: Head ChequeNo. Amount(Rs.)
a)Payfor240days unutilisedE.L. 702189dt.2.8.199112,024.00
b)Gratuity&Group Insurance 705669dt.30.7.199210,980.00
c)MasterPolicy 0113090dt.27.5.1993 1,257.00
d)E.P.F. 287286dt.14.7.1992 11,580.00 35,841.00 transferred to Sri [ENTITY]'s S.B.I. Account no.
22657 at Dumka vide memo no. 6589 dated 18.7.1992. That the above amounts have been receivedbythepetitioner,forwhichhehasgranted receipts."
5. On 06.09.2013, when the matter was listed for hearing, a direction was given to the counsel appearing for the StateofBihartoseekinstructioninthematter,asinspiteofnotice havingbeenissuedinthematter,theStateofBiharhadnotfiled itsaffidavitinthepresentproceeding. TheDepartmentofFood and Consumer Protection, the Government of Bihar thereafter, fileditscounteraffidavitdated21.9.2013,takingapleathatsince, letters dated 24.05.2013 and 26.08.2013 which were written totheGovernmentofJharkhand,havenotbeenrespondedtoby the concerned authorities, it was not possible to ascertain the entitlementforthegrantofpensiontothepetitioner. Paragraph nos. 5 to 10 of the counter affidavit filed by the Food and Consumer Protection Department, Government of Bihar are extractedbelow:
5. "Thattheclaimofthepetitioneristhathewas initially appointed on the post of [ENTITY] in Sub Divisional Office, Deoghar under Supply Department on 02.05.1967 and subsequently he was deputed in theofficeofDistrictManager,StateFoodCorporation, Dumka and he rendered his rest of srvice in the Corporation till his superannuation on 31.07.1991.
However,thepetitionerdidn'tannexanydocumentin supportofhisavermentmadeinannexure1.
6. That it is relevant to mention her that the petitionersuperannuatedfromStateFoodCorporation andgotalladmissibleretiralbenefitsasaCorporation employeeasithascometobeknownthroughletter no. 1473 dated 04.08.2008 with enclosure of SFC (annexedinwritapplication).Itisalsomentionedin the letter 1473 dated 04.08.2008 that the counter affidavithasalreadybeenfiledbySFCvideoathno. 921dated28.01.2008.
7. That so far as submission of petitioner in representation dated 03.07.2007 is concerned, it is statedthattherepresentationhasbeenaddressedto District Supply Officer, Deoghar, Jharkhand which wastoberedressedbytheauthorityconcerned. We are not aware of the fact whether the said representation has been disposed or not from appropriate level, since it is related to Jharkhand Government.
8. Thatitisstatedthatasregardscomputationof qualifyingserviceforthepurposeofgrantofpension toanemployeeretiredfromtheGovernmentserviceis concerned,itisregulatedbythespecificprovisionas containedinRule58oftheBiharPensionRulewhich isasfollows: "The service of a government servant does not qualifyforpensionunlessitconformstothefollowing threeconditions:
(i) TheservicemustbeundertheGovernment,
(ii) The employment must be substantive and permanent,
(iii) Theservicemustbepaidbythegovernment."
9. That sofar asthe standof Food&Consumer ProtectionDepartment,Biharisregardtopaymentof pensiontothepetitionerisconcerned,itisstatedthat to ascertain the entitlement of his pension, the Department has sought a status report from the Jharkhand Government vide letter no. 3242 dated 24.05.2013 and vide letter no. 5415 dated 26.08.2013. But till date, the points raised in the letters have not been clarified by the Food, Public Distribution and Consumer Affairs Department, GovernmentofJharkhand,Ranchi.
10. Thatitismosthumblysubmittedthatitisnot possible to determine the claim of pension and pensionary benefits unless the requisite and relevant documents are provided by the Jharkhand Government."
6. Heard learned counsel appearing for the parties and perusedthedocumentsonrecord.
7. Mr. [ENTITY], learned counsel appearing forthepetitionerhassubmittedthatithasnotbeendisputedby anyoftherespondentsthatthepetitionerwasappointedbythe State of Bihar and he served for more than six years in the DepartmentofFood,SupplyandCommerce,GovernmentofBihar. By an order of the Secretary, Bihar State Food, Supply and CommerceDepartment,thepetitionerwassentondeputationto the Bihar State Food and Civil Supplies Corporation and he superannuated from service w.e.f. 31.07.1991, while serving on deputation with the Bihar State Food and Civil Supplies Corporation. He has further submitted that it is thus apparent that,thepetitionerwhowasappointedundertheGovernmentof Bihar,hasremainedanemployeeoftheGovernmentofBiharand therefore, grant of benefit of pension cannot be denied to the petitioneronthepleathat,sinceafter01.10.1973thepetitioner was not working in the Department of Food, Supply and Commerce, he cannot be treated as an employee of the GovernmentofBihar.
8. Learnedcounselappearingfortherespondent-[ENTITY] has not denied that the other similarly situated employeeswhoservedformorethan10yearshavebeengranted benefitofpension.
9. Learnedcounselappearingfortherespondentnos.4& 9 hassubmittedthatafterthesuperannuationfrom service, the petitionerhasbeenpaidallthedueswhichwereadmissibleinlaw andsincehehasnotmadeanygrievanceinthisrespect,noorder isnecessarytobepassedagainsttherespondentnos.4&9.
10. LearnedcounselappearingfortheStateofBiharhas submittedthatintermsofSection53readwithScheduleVIIIof theBiharReorganisationAct,2000,theliabilitytopaypensionof anemployee,whoretiredfromaplacewhichnowfallsunderthe StateofJharkhand,wouldbeoftheStateofJharkhandandnot theStateofBihar.Hefurthersubmitsthatthereisanagreement reachedbetweenboththeStates-theStateofBiharandtheState ofJharkhandthatifanemployeeretiresfromaplacefallingunder theterritorialjurisdictionoftheStateofJharkhand,theliabilityto pay pension to such an employee would be with the [ENTITY].Tofortifyhiscontention,hereliesondifferentorders [CASE NUMBER]. [CASE NUMBER] an order passed in "[ENTITY] Vs. Sidhu Kanhu University,Dumkaandothers"reportedin(2002)1JLJR491.
11. Beforeadvertingtothefactsofthecase,itwouldbe appropriate to notice the provisions under [SECTION] and [SECTION],2000.
"53.Pensions-TheliabilityoftheexistingStateofBihar inrespectofpensionsandotherretirementbenefitsshall passto,orbeapportionedbetween,thesuccessorStatesof Bihar and Jharkhand in accordance with theprovisions containedintheEighthScheduletothisAct.
THEEIGHTHSCHEDULE APPORTIONMENT OF LIABILITY IN RESPECT OF PENSIONSANDOTHERRETIREMENTBENEFITS
1. Subjecttotheadjustmentsmentionedinparagraph 3,eachofthesuccessorStateshallinrespectofpension and other retirement benefits sanctioned before the appointeddate,payfromtheirrespectivetreasuries.
2. Subjects to the said adjustments, the liability in respectofpensionsandotherretirementbenefitsofofficers servinginconnectionwiththeaffairsoftheexistingState of Bihar,whoretireor proceed onleavepreparatory to retirementbeforetheappointedday,butwhoseclaimsfor pensions and other retirement benefits are outstanding immediatelybeforethatday,shallbetheliabilityofthe StateofBihar.
3. Subjecttothesaid adjustments,sanctionsof such pension and other retirement benefits by the competent authoritymaybegiveninthosecases,inwhichtheiroffice fallsintheterritoryofJharkhandState.
4. There shall be computed, in respect of the period commencingontheappointeddayandendingonthe31st dayofMarchofthatfinancialyearandinrespectofeach subsequentfinancialyear,thetotalpaymentsmadeinthe successorstatesinrespectofpensionsandotherretirement benefits referred to in paragraphs 1 and 2. the total representingtheliabilityoftheexistingStateofBiharin respectofpensionsandotherretirementbenefitsshallbe apportioned betweenthesuccessor Statesintheratioof number of employees of each successor State and any successor Statepayingmorethanitsdueshareshallbe reimbursed the excess amount by the successor State or Statepayingless.
5. TheliabilityoftheexistingStateofBiharinrespect ofpensionsandotherretirementbenefitsgrantedbefore the appointed day and drawn in any area outside the territoriesoftheexistingstateshallbetheliabilityofthe StateofBiharpayingsubjecttoadjustment,tobemadein accordancewithparagraph3asifsuchpensionsandother retirementbenefitshadbeendrawninanytreasuryinthe StateofBiharunderparagraph1.
6. The liability in respect of the pensions and other retirement benefits of any officer serving immediately beforetheappointeddayinconnectionwiththeaffairsof theexistingStateofBiharandretiringonorafterthat day,shallbethatofthesuccessorStategrantinghimthe pensionandotherretirementbenefits,buttheportionof thepensionandotherretirementbenefitsattributableto theserviceofanysuchofficerbeforetheappointeddayin connectionwiththeaffairsoftheexistingStateofBihar shall be allocated between the successor States in the population ratio and the Government granting, the pensionandotherretirementbenefitsshallbeentitledto receivefromeachoftheothersuccessorStatesitsshareof thisliability.
7. Any reference in this Schedule to a pension and otherretirementbenefitsshallbeconstruedasincludinga referencetothecommutedvalueofthepensionandother retirementbenefits."
12. Atthisstage,itwouldbeusefultonoticetheorders passed by this Court which have been relied on by the learned counsel appearing for the State of Bihar. In "[ENTITY]" (supra),thisCourthasobservedthatthepensionofan employeeretiringpriorto15.11.2000maybegivenbytheStateof Jharkhandincasetheofficefromwhichtheofficerretired,fallsin theterritoryoftheStateofJharkhand.Ifindthatasaproposition oflawthisCourthasnotheldthat,ifapersonretirespriortothe appointed date i.e., 15.11.2000, from a place falling within the territoryofJharkhand,theliabilityofpensionwouldbefastened totheStateofJharkhand.Inthepeculiarfactsandcircumstances ofthecase,anorderwaspassedbythisCourtin "[ENTITY] inthesaidcase.
13. Similarly, from all other cases which the learned counselappearingfortheStateofBiharhascited,Iamunableto gatherthatthisCourthaslaiddownthelawthatitwouldbethe liabilityoftheStateofJharkhandtopaythepensionarybenefitof anemployeewhohasretiredpriortotheappointeddayfroma place which now falls under the territory of the [ENTITY].
14. From a bare reading of the provisions contained in paragraph nos. 2 and 5 of the [SECTION] of the [ACT]However,aprovisionhasbeen madeinParagraph3foradjustmentofliabilitybetweenthetwo States. Iamoftheviewthat,aprovisionforadjustmenttobe arrivedatbetweenthetwoStates,wouldnotabsolvetheStateof Bihar from its liability to pay pension, as mentioned under [SECTION].Itistheliabilityof theStateofBihartopaytheretiralbenefittoanemployeewho has retired prior to the appointed day. The reason for incorporatingsuchaprovisionisapparentlyclear.Since,priorto the appointed dayany person whowasan employee under the Government, was an employee ofthe Government ofBiharand therefore,therewasnoquestionofapportionmentoftheliability betweenthetwoStates.
15. Now,comingtothefactsofthecase,admittedlythe petitionerwasappointedundertheGovernmentofBiharandhe wassentondeputationon01.10.1973totheBiharFoodandCivil SuppliesCorporation.Thedeputationofthepetitionerwouldnot terminatehisserviceundertheGovernmentofBihar.Theorderof deputationwaspassedbytheSecretaryofthedepartment.
16. In "[PRECEDENT] has held that, a government servant cannot be deprived of his status as "Civil Servant" without his consent. In "State of Gujarat Vs. Raman Lal Keshav Lal Soni"
reportedin(1983)2SCC33,theHon'bleSupremeCourthasheld that,
30. " Government servants do not ceasetobegovernmentservantsmerelybecause, forthetimebeing,theyareallottedtodifferent PanchayatInstitutionsandarepaidoutofthe fundsofthoseinstitutions "
17. In the present case, it is not the case of the respondentsthattherewasanyoptiongiventotheemployeeson deputation with Bihar State Civil Supplies Corporation to get permanentabsorptioninthecorporationandthepetitioneropted forexercisingsuchoptiongiventohim.Itisalsonotthecaseof therespondentsthatthepostonwhichthepetitionerwasworking wastransferredtotheCorporation.
18. IthasbeenbroughttothenoticeoftheCourtthatthe Jharkhand Food and Civil Supplies Corporation came into existenceon01.04.2011andtherefore,itisamplyclearthattill 31.03.2011, all the employees like the petitioner who were on deputation with the Bihar Food and Civil Supplies Corporation remained the employees of the Government of Bihar. The petitionerhas retired fromservice w.e.f. 31.07.1991 andanew [ENTITY] was created on 15.11.2000 and thus, the petitionerhasremainedanemployeeoftheGovernmentofBihar. FromthecounteraffidavitfiledonbehalfoftheStateofBihar,I donotfindanydefiniteobjectioninsofaras,theentitlementof the petitioner for grant of pension is concerned. The only objectiontakenbytheStateofBiharisthat,therehasbeenno responsetotheletterswrittenbytheStateofBihartotheStateof Jharkhand.IfindthatsuchlettershavebeenwrittentotheState ofJharkhandon24.05.2013and26.08.2013thoughthepetitioner superannuatedfromserviceintheyear,1991itself.Theseletters havebeenwrittenonlyforavoidingtheclaimofthepetitioner. TheStateasalitigantcannotbepermittedtoplayhideandseek. In the present proceeding only after a direction for seeking instruction was passed, a vague affidavit has been filed by the StateofBihar.
19. [PRECEDENT], the plea raisedbytherespondentsthataclaimforthepensionwasraised after more than 20 years, has been rejected by the Hon'ble SupremeCourtandithasbeenheldthatitisanobligationofthe employertocalculateandpaytheretiralduesoftheemployee. DenialofpensiontoanemployeeisviolativeofArticle21ofthe [ACT]TheHon'bleSupremeCourthasdealtwith theissueasunder:
6. "We notice that the appellant's husband wasworkingasaGangmanwhodiedwhilein service.Itisonrecordthattheappellantisan illiteratewhoatthattimedidnotknowofher legalrightandhadnoaccesstoanyinformation astoherrighttofamilypensionandtoenforce hersuchright.Onthedeathofthehusbandof the appellant, it was obligatory for her husband's employer viz. the Railways, in this case to have computed the family pension payabletotheappellantandofferedthesameto her without her having to make a claim or without driving her to a litigation. The very denialofherrighttofamilypensionasheldby thelearnedSingleJudgeaswellastheDivision Benchisanerroneousdecisiononthepartofthe Railwaysandinfactamountingtoaviolationof the guarantee assured to the appellant under Article21ofthe[ACT].Thefactumofthe appellant's lack of resources to approach the legal forum timely is not disputed by the Railways.Thequestionthenarisesonfactsand circumstances of this case, was the Appellate Benchjustifiedinrestrictingthepastarrearsof pension to a period much subsequent to the deathoftheappellant'shusbandonwhichdate shehadlegallybecomeentitledtothegrantof pension? In this case as noticed by us hereinabove, the learned Single Judge had rejectedthecontentionofdelayputforthbythe Railways and taking note of the appellant's righttopensionandthedenialofthesameby theRailwaysillegallyconsidereditappropriate to grant the pension with retrospective effect fromthedateonwhichitbecameduetoher.
TheDivisionBenchalsowhileagreeingwiththe learnedSingleJudgeobservedthatthedelayin approachingtheRailwaysbytheappellantfor the grant of family pension was not fatal, in spite of the same it restricted the payment of family pension from a date on which the appellantissuedalegalnoticetotheRailways i.e.on141992.Wethinkonthefactsofthis case inasmuch as it was an obligation of the Railwaystohavecomputedthefamilypension and offered the same to the widow of its employeeassoonasitbecameduetoherand alsoinviewofthefactthatherhusbandwas onlyaGangmanintheRailwayswhomightnot have left behind sufficient resources for the appellanttoagitateherrightsandalsoinview ofthefactthattheappellantisanilliterate,the learned Single Judge, in our opinion, was justifiedingrantingtherelieftotheappellant fromthedatefromwhichitbecameduetoher, that is the date of the death of her husband. Consequently,weareoftheconsideredopinion that the Division Bench fell in error in restrictingthatperiodtoadatesubsequentto 141992."
20. In a welfare state, pension is treated not only as a rewardforpastservicebutitisextendedwithaviewtohelpthe employeetoavoiddestitutioninoldage. Theconceptofretiral benefitshasevolvedontheconsiderationthatanemployeewho renderedserviceduringtheusefulyearsofhislifemustnotbeleft topenuryinhisoldage.
21. The term 'pension' has been defined in American Jurisprudenceasthus, "However,bymodernusage,the'pension'isnot restrictedtopure gratuities. Thus, it has been held that a pension paid to a governmental employeeforlongandefficientserviceisnotan emolumentthepaymentofwhichisbarredbya Stateconstitutionalprovision,butisadeferred portionofthecompensationearnedforservices rendered Apensioniscloselyakintowages inthatitconsistsofpaymentsprovidedbyan employer, is paid in consideration of past services, andservesthepurposeofhelpingthe recipientmeettheexpenseofliving."
22. The concept of 'pension' has been discussed in Halsbury'sLawsofEnglandinthefollowingwords:
"Meaning of 'pension': 'Pension' means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfiedthatitistobepaidinaccordancewith anyschemeorarrangementhavingitsobjector oneofitsobjectstomakeprovisioninrespectof persons serving in particular employments for providing them with retirement benefits 'Pension'doesnotinclude:
(i) apaymenttoanemployeewhichconsistssolely of a return of his own contributions, with or withoutinterest;
(ii) thatpartofapaymenttoanemployeewhichis attributable solely to additional voluntary contributions by that employee made in accordancewiththeschemeorarrangement;
(iii) aperiodical paymentor lump sum, insofar as that payment or lump sum represents compensationunderthestatutorycompensation schemes and is payable under a statutory provision,whethermadeorpassedbefore,onor after3171978."
23. The concept of 'pension' has also been described in CorpusJurisSecundumasthus, "Apensionisaperiodicalallowanceofmoney grantedbytheGovernmentinconsiderationor recognition of meritorious past services, or of lossorinjurysustainedinthepublicservice.A pension is mainly designed to assist the pensionerinprovidingforhisdailywants,and it presupposes the continued life of the recipient."
24. In"DeokinandanPrasadVs.StateofBiharandOthers", reportedin(1971)2SCC330,theHon'bleSupremeCourtfinally setatresttheongoingdebateregardingthenatureofpensionby holdingthattherightofapersontoreceivepensionisakintoright topropertyunderArticle31(1)andbyamereexecutiveorderthe Statehasnopowertowithholdthesame. Thedecisionbythe [ACT] Bench of the Hon'ble Supreme Court in "[PRECEDENT]agratuitouspayment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforcedthroughCourt,aswrong.
25. In "D.S. Nakara and Others Vs. Union of India", reportedin(1983)1SCC305,a[ACT]BenchoftheHon'ble SupremeCourthasheldasunder,
28. "Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in [PRECEDENT] it consists of payment provided by an employer,ispaidinconsiderationofpastservice andservesthepurposeofhelpingtherecipient meettheexpensesofliving.Thisappearstobe thenearesttoourapproachtopensionwiththe added qualification that it should ordinarily ensurefreedomfromundeservedwant.
29. Summing 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 mentalprowessisebbingcorrespondingtoaging process and, therefore, one is required to fall back on savings. One such saving in kind is whenyougiveyourbestintheheydayoflifeto youremployer,indaysofinvalidity,economic security by way of periodical payment is assured.Thetermhasbeenjudiciallydefinedas a stated allowance or stipend made in consideration ofpast serviceor a surrender of rightsoremolumentstooneretiredfromservice. Thus the pension payable to a government employee is earned by rendering long and efficientserviceandthereforecanbesaidtobea deferred portion of the compensation or for service rendered. In one sentence one can say thatthemostpracticalraisond'etreforpension istheinabilitytoprovideforoneselfduetoold age.Onemayliveandavoidunemploymentbut notsenilityandpenuryifthereisnothingtofall backupon.
31. Fromthediscussionthreethingsemerge:
(i)thatpensionisneitherabountynoramatter 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 characterbecausetheyareenactedinexerciseof powersconferredbytheprovisotoArticle309 and clause (5) of Article 148 of the [ACT];(ii)thatthepensionisnotanex gratiapaymentbutitisapaymentforthepast servicerendered;and(iii)itisasocialwelfare measure rendering socioeconomic justice to thosewhointheheydayoftheirlifeceaselessly toiledfortheemployeronanassurancethatin theiroldagetheywouldnotbeleftinlurch.It must also be noticed that the quantum of pensionisacertainpercentagecorrelatedtothe average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contractofserviceandthatitcanbereducedor withdrawnasadisciplinarymeasure."
26. In [PRECEDENT], the Hon'ble SupremeCourt,hasheldasunder,
16. "Pension and gratuity coupled with contributoryprovidentfundarewellrecognised retiral benefits. These retiral benefits are now governed by various statutes such as the [ACT]. These statutes were legislative responsestothedevelopingnotionsoffairand humaneconditionsofwork,beingthepromise of [SECTION] of the [ACT]. [SECTION] providesthat"theprovisionscontainedin[SECTION] DirectivePrinciplesofStatePolicy,shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and itshall be thedutyof theStatetoapply these principles in making laws". [SECTION] providesthat"theStateshall,withinthelimits ofitseconomiccapacityanddevelopment,make effectiveprovisionforsecuringtherighttowork, toeducationandtopublicassistanceincasesof unemployment, old age, sickness and disablement, and in other cases of undeserved want".Article43obligatestheState"tosecure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure ".TheStatedischargeditsobligation by enacting these laws. But much before the State enacted relevant legislation, the trade unions either by collective bargaining or by statutoryadjudicationacquiredcertainbenefits, gratuity being one of them. Pension and gratuityarebothretiralbenefitsensuringthat theworkmanwhohasspenthisusefulspanof life in rendering service and who never got a livingwage,whichwouldhaveenabledhimto saveforarainyday,shouldnotbereducedto destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment. It must not be forgottenthatitisnotagratuitouspayment,it hastobeearnedbylongandcontinuousservice.
17. Can such social security measure be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earnedthesamebylongcontinuousservice?If Rule10isinterpretedashasbeendonebythe High Court, such would be the stark albeit unpalatableoutcome.Itisthereforenecessaryto take a leaf out of history bearing on the questionofretiralbenefitslikepensiontowhich gratuity is equated. In [PRECEDENT]BurhanpurTaptiMillsMazdoor Sangh thisCourtobservedthat:"aschemeofgratuity andaschemeofpensionhavemuchincommon. Gratuityisalumpsumpaymentwhilepension is a period payment of a stated sum".
Undoubtedlybothhavetobeearnedbylongand continuousservice.
18. Forcenturiesthecourtsswunginfavour oftheviewthatpensioniseitherabountyora gratuitous payment for loyal service rendered dependingupon thesweetwillorgraceofthe employernotclaimableasarightandtherefore, no right to pension can be enforced through court. This view held the field and a suit to recover pension was held not maintainable. With the modern notions of social justice and socialsecurity,conceptofpensionunderwenta radical change and it is now wellsettled that pensionisarightandpaymentofitdoesnot dependuponthediscretionoftheemployer,nor canitbedeniedatthesweetwillorfancyofthe employer. [PRECEDENT].IqbalSinghandD.S. [ENTITY].UnionofIndia.Ifpensionwhichis theretiralbenefitasameasureofsocialsecurity can berecovered through civil suit, wesee no justificationintreatinggratuityonadifferent footing.Pensionandgratuityinthematterof retiralbenefitsandforrecoveringthesamemust beputonpar."
27. [PRECEDENT],
7. " Pensionisarightnotabountyor gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rulesandanyoneentitledtothepensionunder the rules can claim it as a matter of right. ([PRECEDENT] and [PRECEDENT] UnionofIndia.)WheretheGovernmentservant renderedservice,tocompensatewhichafamily pension scheme is devised, the widow and the dependentminorswouldequallybeentitledto familypensionasamatterofright.Infactwe look upon pension not merely as a statutory right but as the fulfilment of a constitutional promiseinasmuchasitpartakesthecharacterof publicassistanceincasesofunemployment,old age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakarajudgment.Atthehearingofthisgroup ofmatterswepointedoutthatsincethefamily pension scheme has become noncontributory effectivefromSeptember22,1977anyattempt atdenyingitsbenefittowidowsanddependents of Government servants who had not taken advantageofthe1964liberalisationschemeby making or agreeing to make necessary contribution would be denial of equality to personssimilarlysituatedandhenceviolativeof Article14.Ifwidowsanddependentsofdeceased GovernmentservantssinceafterSeptember22, 1977 would be entitled to benefits of family pension scheme without the obligation of making contribution, those widows who were denied the benefits on the ground that the Governmentservantshavingnotagreedtomake thecontribution,couldnotbedifferentlytreated becausethatwouldbeintroducinganinvidious classification among those who would be entitledtosimilartreatment.Whenthisglaring dissimilar treatment emerged in the course of hearing in the Court, Mr [ENTITY] learned counsel appearing for the Union of India requested for a short adjournment to take furtherinstructions."
28. In"PEPSURTCVs.MangalSinghandOthers",reported in [CASE NUMBER], theHon'bleSupremeCourthasheldas under,
49. "Tosumup,westatethattheconceptof pension has been considered by this Court time andagainandinacatenaofcasesithasbeen observed that the pension is not a charity or bounty nor is it a conditional payment solely dependentonthesweetwilloftheemployer.Itis earned for rendering a long and satisfactory service.Itisinthenatureofdeferredpaymentfor the past services. It is a social security plan consistent with the socioeconomic requirements of the [ACT] when the employer is State within the meaning of [SECTION] of the [ACT] rendering social justice to a superannuatedgovernmentservant.Itisaright attached to the office and cannot be arbitrarily denied. (See [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT])."
29. InviewofthedecisionsoftheHon'bleSupremeCourt, therecannotbeanymannerofdoubtthatanemployeehasaright to receive his/her retiral dues and an employee can be denied demandoftheretiralbenefitsonlyunderaprocedureprescribed underthelaw.
30. Inviewoftheaforesaid,thiswritpetitionisallowedin sofaras,thegrantofpensiontothepetitionerbytheStateof Biharisconcerned.TheStateofBiharisdirectedtocalculateand paypensiontothepetitionerwithinaperiodofeightweeks.Such paymentshallbemadewith6%simpleinterestfrom01.08.1991.
31. With the aforesaid direction, this writ petition is disposedof.However,[ENTITY].
([ENTITY],J.) JharkhandHighCourtatRanchi The25thdayofOctober,2013 [ENTITY]/AFR/Cp.2