JUDGMENT :

Heard through V.C.

2. The instant writ application has been preferred by the petitioner praying for a direction upon the respondent-authorities to release post-retiral benefits i.e. the MACP/Due Increments/Gratuity/Earned Leave/Pension etc., pursuant to his retirement on 31.01.2015.

3. Mr. D. K. Dubey, learned counsel for the petitioner submits that he initially joined as Junior Engineer on 07.07.1979 and was promoted to the post of Assistant Engineer. In the year 2013 in connection with a departmental proceeding, the disciplinary authority vide its order dated 13.11.2013 awarded punishment of censure with a further direction that the decision with regard to salary of the petitioner for the period of suspension would be taken after the decision in the criminal case. The petitioner has challenged the said order passed by the disciplinary authority in W.P.(S) No. 686 of 2014.

4. Learned counsel further submits that the Deputy Secretary Rural Development Department informed the other authorities that no proceeding is pending against this petitioner and finally he retired on 31.01.2015.

5. Learned counsel further submits that the entire no dues certificate issued to the petitioner has been submitted by him; however, he has not been paid the retiral benefits etc. It is specific averment in the writ application that no departmental proceeding is pending against this petitioner.

6. Learned counsel for the respondent-State submits that as per Memo No. 194 dated 16.06.2008 of Finance Department, if there is any criminal case pending against the Government servant post his retirement then instead of full pension it is to be sanctioned provisionally. Further as per Memo No. 115 dated 29.03.2010, pension can be stopped or taken back only after conclusion of the departmental proceeding against him. Since a criminal case is still pending against this petitioner before the competent court, the pension and gratuity has been withheld.

7. In reply to the aforesaid contention of learned counsel for the petitioner, Mr. Dubey submits that unless there is any force of law, the pension and/or gratuity cannot be withheld only due to pendency of a case. He further submits that these things are earned by long continuous and unblemished service and as per the Hon’ble Apex Court as held in the case of State of Jharkhand and others Vs. Jitendra kumar Srivastava and Another, as reported in (2013) 3 JLJR SC 537, pension and gratuity is in the nature of property and right to this property cannot be taken away without the due process of law. He contended that when it is an admitted fact that no departmental proceeding is pending then there is no ground for withholding the payment. He further submits that so far as the punishment which was awarded to this petitioner is concerned, the same is subject matter of W.P.(S) No. 686 of 2014 and that too is only of censure. As such, the respondent may be directed to release the pensionary benefits along with statutory interest.

8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits it clearly transpires from the letter dated 06.01.2015 (Annexure-2) that no departmental proceeding is pending against this petitioner. The Hon’ble Apex Court in the case of Jitendra Srivastava (supra) has held at para 7 and 13 as under;

“7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:

“The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the em