CIVIL WRIT PETITION NO.14615 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 05, 2009 Smt.Krishna .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rakesh Nehra, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. What would be the fate of family pension when the deceased employee was receiving pension with cut imposed by way of a punishment is an issue of significant importance arising in the present writ petition. The petitioner would ofcourse plead that full family pension is to be paid to her without considering the cut imposed in the pension payable to her late husband. The respondent-Department would join issues on this count with the petitioner. CIVIL WRIT PETITION NO.14615 OF 2008 :{ 2 }: The husband of the petitioner, who was appointed in Haryana Police, retired from the service on superannuation on 31.1.2006 after rendering 39 years of service. A few months prior to his retirement, two Departmental enquiries were initiated against him. The enquiry reports in this regard came to be submitted after his retirement. The husband of the petitioner was exonerated in both the enquiries by the Enquiry Officer. The Commandant also agreed with the findings of the Enquiry Officer and on 10.5.2006 directed that the files be consigned to the records. Inspector General Haryana, Armed Police, Madhuban, however, differed and issued a show cause notice to the husband of the petitioner on 27.9.2006/4.10.2006 in both the abovesaid enquiries. The husband of the petitioner submitted his replies pleading innocence. Thereafter, Inspector General, HAP, Madhuban, passed two separate orders imposing cut of 8% and 25% on the pension payable to the petitioner on the basis of these two enquiries. The husband of the petitioner filed an appeal against the same, when on 23.6.2008, the order was modified in one case to reduce a cut in pension from 25% to 20%. It appears from the record that before the decision was taken on the appeals filed by husband of the petitioner, he died on 24.11.2007. The pension payable to the late husband of the petitioner, thus, came to an end. The petitioner became entitled to the family pension, which was granted to her by imposing a cut of 33% on the family pension. This is accordingly under challenge in the present writ petition. The respondents would justify their action in paying the family pension with 33% cut. Reference is made to the two enquiries initiated against the husband of the petitioner for taking illegal CIVIL WRIT PETITION NO.14615 OF 2008 :{ 3 }: gratification and for not arresting four accused in an FIR under N.D.P.S. Act. The second enquiry was for not taking action against Head Constable Gamdur Singh, who had allegedly taken illegal gratification. In the reply, it is admitted that the petitioner was exonerated in both the enquiries. It is also conceded that the Commandant had agreed with the findings and had filed the enquiries on 10.5.2006. It is then pointed out that Inspector General, after disagreeing with the findings of the Enquiry Officer, had issued a show cause notice for imposing punishment of 50% cut in the pension in both the enquiries. After considering the replies, the cut of 8% in the first enquiry and 25% cut in the second enquiry was ordered on 3.4.2007. It is further stated in the reply that the late husband of the petitioner had filed a revision before the Director General of Police, who had rejected one petition on 26.3.2008 but partly accepted the second, reducing the cut in pension from 25% to 20%. As can be seen from the reply, the main concentration is to justify imposing of cut on the pension payable to the late husband of the petitioner. No clear answer or justification is noticed about the stand in fixing the family pension by taking this cut into account. It is simply stated that upon the death of the husband of the petitioner, cut in the pension will be operative on the family pension as the cut is not a corporeal punishment awarded to an employee on the basis of an criminal act but it is a punishment awarded on the basis of a grave misconduct. Thus, to justify this cut, an attempt has been made to draw distinction between a punishment awarded for criminal offence and the one which is a punishment for misconduct and imposed on CIVIL WRIT PETITION NO.14615 OF 2008 :{ 4 }: the basis of departmental enquiry. No provision of law or statute or service Rules have been so pointed out in support of this stand and the distinction as has been drawn by the respondents. This apparently is not a valid consideration to regulate the grant of family pension with cut. This issue is required to be seen and analyzed from a broader angle regarding the theme and purpose behind the grant of family pension. Pension, as is by now well settled, is a deferred portion of the payment for the service rendered. It is not a bounty payable at the sweet will of the employer, though good conduct in future may be a condition precedent for continued payment of the pension. That being the theory behind grant of pension, the family pension may then be considered as a part of deferred portion of the payment for service rendered by the employee. A look at the scheme of family pension would show that this has been formulated to afford relief to the family of the deceased Government employee and provides for the benefit of monthly pension to a widow or the children. Right to receive family pension is that of the family members and is admissible even when an individual dies after retirement and was on the date of death in receipt of retiring pension etc. Thus, the entitlement to family pension depends upon the right of a late employee to pension and it is immaterial if this pension was being paid in full or with a cut. There is hardly any justification to draw distinction between the corporeal punishment and the punishment for misconduct. It is conceded that the effect of corporeal punishment could not have come on to the petitioner. How can then the effect of CIVIL WRIT PETITION NO.14615 OF 2008 :{ 5 }: any other punishment be made to fall on to the petitioner? If the family can not be passed on the effect of credit, then it should not suffer the effect of some wrong done by the late employee. That is why specific clause has been incorporated on the basis of instructions issued in implementation of various Pay Commission recommendations that no reduction in family pension will be made even if a cut was imposed in the pension of the individual whose death gives rise to the claim for family pension. Though neither the counsel for the petitioner nor the State counsel has made reference to the instructions issued on the basis of Pay Commission recommendations adopted by the State but such provision has been found in the instructions issued by the other organizations like Army on the basis of Pay Commission recommendations. Para 4.3 of the instructions issued in case of Army reads as under:- “No reduction in ordinary family pension will be made:- (i)even if a cut was imposed in the pension of deceased and (ii)where any compensation is payable from public revenues for death of the individual. The operation of cut if allowed, as such, would be unfair and harsh and, thus, not legally sound. The issue can be looked from other angle. As per the scheme of family pension, the monthly pension to widow or children is payable at the rate of 30% of the pay. Thus, the monthly family pension is payable having regard to the pay and not in regard to the pension that the employee was receiving. The pay has also been defined for this purpose to mean, which the person was drawing on CIVIL WRIT PETITION NO.14615 OF 2008 :{ 6 }: the date of his death while in service or immediately before retirement. This pay also includes dearness pay. Thus, in the entire scheme, the family pension is payable not on the basis of pension, which the employee was drawing but is required to be calculated on the basis of a last pay drawn. This can further be elaborated by making reference to Para 13 of the Family Pension Scheme. It says that commutation of a pension would have no effect on the quantum of family pension as the rate of family pension is based on the pay, which the Government employee was drawing immediately before his retirement and not on the pension sanctioned to him. Said para reads as under:- “Effect of commutation of pension on the quantum of Family pension:- The commutation of pension has no effect on the quantum of family pension as the rate of family pension is based on the pay which the Government employee was drawing immediately before his retirement and not on the pension sanctioned to him.” The action of the respondents, thus, to fix the family pension of the petitioner by imposing a cut is not justified. The petitioner, being wife of the employee, would be entitled to get her family pension fixed at the rate now applicable on the last pay drawn by her late husband, as per the Scheme. Thus, the writ petition is allowed. Direction is issued to the respondents to release the full family pension to the petitioner without imposing any cut on the same from the date she is entitled to receive CIVIL WRIT PETITION NO.14615 OF 2008 :{ 7 }: the same. The arrears due shall be released to the petitioner within a period of one month from the date of receipt of copy of this order. There shall, however, be no order as to costs. September 05, 2009 ( RANJIT SINGH ) khurmi JUDGE