Having heard Mr. K.D. Chetri, the learned counsel for the petitioner, Mr. U.K. Goswami, the learned standing counsel for Education (Secondary) Department, Assam, Mrs. K. Devi, the learned Government Advocate, Assam and Mr. R.K. Talukdar, the learned standing counsel for AG, I am of the view that this writ petition shall have to be allowed.

2. Before proceeding further, I may briefly refer to the facts leading to the filing of this writ petition. The petitioner is aggrieved by the refusal of the respondents to release a sum of Rs.48,600/- which was deducted from his death-cum-retirement gratuity after his retirement from service on superannuation on 31-8-2012: a paltry sum of Rs.9,510/- per month was, however, paid to him by way of provisional pension. This Court by the order dated 23-6-2014 had directed the respondents to finalize his pension case on or before 31-8-2014, for which the President & Secretary of the School Management Committee, Tarun Ram Phukan Hindi High School and the present Headmaster of the school should furnish the non-liability certificate forthwith. Pursuant to this order, the respondent No. 2 issued the order dated 3-9-2014 directing the payment of provisional pension and provisional DCRG amounting to Rs.5,15,245/- to the petitioner while refusing to release Rs.48,6000/-. The respondent No. 2 in his affidavit-in-opposition has justified the withholding of the aforesaid amount on the ground that there is allegation of financial irregularities on the part of the petitioner and, as such, the Headmaster of the school could not issue the non-liability certificate. The question which now falls for consideration in this writ petition is whether the justification of the respondents for withholding the amount in question, which is withheld for payment, is tenable in law or not?

3. It is now well settled that gratuity and pension are not bounties. An employee earns this benefit by the dint of his long, continuous, faithful and unblemished service. It is thus a hard-earned benefit which accrues to an employee and is in the nature of a “property”. The right to property cannot be taken way except in accordance with the procedure laid down by law. The term “pension” is defined by Rule 9 of Assam Services (Pension) Rules, 1969 (“the Rules” for short) as follows:-

“9. Pension.- Except when the term “Pension” is usedin contradistinction to Gratuity, “Pension” includes Gratuity and Death-cum-retirement Gratuity.”

4. The provision dealing with the right of the Governor to withhold or withdraw pension is provided for in Rule 21 of the Rules, the relevant portions whereof are reproduced below:-

“21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pension the petitioner is found guilty of grave misconduct or negligence during the period of his service, including, service rendered upon re-employment after retirement provided that –

(a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service:

Explanation. - The continuation of the proceeding after the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary.

The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases.

(b) such departmental proceeding, if not instit