• Withholding of retirement benefits such as gratuity

Sir /Mam  
I opted for V Retirement five years before regular retirement age from a LOCAL SELF GOVT. ORG.
My employer has not paid me gratuity amt. pending an ongoing dept. inquiry which was started serving me a notice after 3 1/2 months of my retirement.. Inquiry was ordered by RTI commissioner Konkan Bhuvan Bench on JUNE 14 to complete & report in 3 months. This inquiry was about a RTI matter.not any serious monitory offence..Is my employer authorised  to withheld my retirement benefits for this small reason? EVEN If I was to be inquired about any serious matter after retirement then it was to start within 2 mths of my retirement that is what my knowledge is .Pl guide Reg.
Asked 9 months ago in Labour from Kalyan, Maharashtra
n the absence of any provision in the pension rules, a State government cannot withhold a part of pension and/or gratuity during the pendency of departmental/criminal proceedings, the Supreme Court has held.

Giving this ruling, a Bench of Justices K.S. Radhakrishnan and A.S. Sikri said: “It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Right to receive pension was treated as right to property.”

Writing the judgment, Justice Sikri said: “According to Article 300 A of the Constitution, no person shall be deprived of his property save by authority of law. A person cannot be deprived of his pension without the authority of law. It follows that the attempt of the appellant [in this case the Jharkhand government] to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”

Referring to the contention that executive instructions had been issued by the appellant government, the Bench said: “It hardly needs to be emphasised that the executive instructions do not have statutory character and, therefore, cannot be termed as ‘law’ within the meaning of Article 300A of the Constitution. On the basis of such a circular, which is not having force of law, the appellant cannot withhold — even a part of pension or gratuity. So far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.”
Ajay Sethi
Advocate, Mumbai
23291 Answers
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 [D.V. Kapoor v. Union of India] The exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment. [para 6],

(ii) 1995 (2) PLJR 51(SC) [State of Bihar v. Mohd. Idris Ansari] A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired Government servant, it must be shown that in departmental proceedings or judicial proceedings the concerned Government servant is found guilty of grave misconduct. [para 6]

(iii) 1999(3) PLJR 949 [Bajrang Deo Narain Sinha v. State of Bihar] We relied upon a decision of the Supreme Court (D.V. Kapoor v. Union of India and Ors.) for the principle that unless the pensioner is found guilty of misconduct in a Page 2853 departmental or a judicial proceeding, any part of his pension cannot be withheld. In that case, the Supreme Court was considering Rule 9 of the Civil Services Pension Rules, 1972 which is in para material with Rule 43(b) of the Bihar Pension Rules. This Court has also taken the same view in several decisions including the decision in CWJC No. 7315 of 1995 decided on 4.9.1996 and in State of Bihar and Ors. v. Idris Ansari (1995 AIR SCW 2886). Apart from decisions, the rule is quite clear, and it is only in the case of proved misconduct that a part or whole of pension can be withheld.
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
In your case it is on the directions of RTI Commissioner that the inquiry started. If disobedience of RTI rules is alleged against you then fine can be imposed on you after the conclusion of inquiry. There is no limitation in so far as the powers of Information Commission under RTI Act to order inquiry against a retired employee is concerned. Till the conclusion of inquiry the retirement benefits can be withheld.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
If the employer has not adhered to the civil service rules then your retirement benefits cannot be withheld 

2) you have a good case on merits 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
CIVIL SERVICE RULES do not hinder an inquiry under RTI Act. The powers of Information Commission under RTI Act are not curtailed by civil service rules.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0

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