Judgment (Oral)

1. This case reflects a disturbing lack of understanding on the part of the State Government regarding the service rules governing its employees. It appears to have become a recurring practice for the State to continue paying subsistence allowance even after an employee has superannuated from service. This is the second instance that has come to the notice of this Court where such an anomalous payment has been made.

2. In the present case, the State continued to pay subsistence allowance beyond 30.09.2019, the date on which the Petitioner retired from his service, and in fact continued such payments up to 31.10.2021. Once an employee attains superannuation, the relationship of employer and employee comes to an end. Consequently, any disciplinary proceedings initiated or continued thereafter cannot serve the purpose of imposing service penalties. At best, such proceedings may be continued only to the extent permitted under the applicable pension rules for determining or regulating pensionary benefits.

3. The continuation of disciplinary proceedings after retirement is therefore not for taking disciplinary action against the employee as such, but only for regulating pensionary entitlements in accordance with law. In the absence of an employer-employee relationship after superannuation, the payment of subsistence allowance beyond the date of retirement is wholly misconceived and unsupported by the governing principles of service jurisprudence.

4. A criminal case was registered against the Petitioner alleging sexual molestation of students in the school where he was employed as a Teacher. The Petitioner was suspended with effect from 25.04.2017. The criminal proceedings culminated in his acquittal on 08.12.2021 .The disciplinary proceedings were apparently initiated after he had superannuated from his service.

5. The Disciplinary Authority imposed a penalty for dismissal of service. In appeal, the Appellate Authority reversed the said penalty and held that the Petitioner would be entitled to admissible retirement benefits. The subject of this list is actually the interpretation of the benefits to which the Petitioner is entitled.

6. The Learned Senior Counsel for the Petitioner submits that the Additional Chief Secretary passed an order nullifying the order passed by the appellate authority in the disciplinary proceedings. No doubt about the law, the learned Senior Counsel justified making such a submission, if the Additional Chief Secretary had passed an order contrary to the order passed by the authority in the disciplinary proceeding. But, as I see from the impugned order, the Additional Chief Secretary only passed an order holding that the Petitioner will not be entitled for any arrears of salary during the suspension period having regard to the fact that he did not actually discharge his duties during that period. This aspect, in fact, is not covered by the order of the Appellant Authority.

7. Normally, the Disciplinary Authority is the only authority to decide whether suspension is wholly justified or unjustified. Anyway, looking at the fact that he was involved in a criminal case, and that the proceedings continued up to 08.12.2021, there was a reason for not paying full salary to him. The Petitioner was paid subsistence allowance as applicable under the Rules. He has no case that he was not paid such a subsistence allowance. Therefore, the denial of claims for full salary for the period during which the Petitioner was suspended is justifiable.

8. The Petitioner is a native of Bihar. Prior to his superannuation, disciplinary proceedings had been initiated against him. Although he attained the age of superannuation, he was directed by the State Government to continue remaining at Mangan, North Sikkim, for the purposes of the pending disciplinary proceedings. During this period, the Government paid him a subsistence allowance up to 31.10.2021.

9. The State now seeks to recover the amount so paid from the gratuity and pensionary benefits of the Petitioner on the ground that, in law, no subsistence allowance is admissible after an employee has superannuated from service.

10. There can be no quarrel with the proposition that upon superannuation the relationship of employer and employee comes to an end and, strictly speaking, a retired employee is not entitled to subsistence allowance under the service rules. Proceedings continued after retirement are relatable only to the determination of pensionary benefits and do not revive the employer-employee relationship. However, the issue arising in the present case is not whether the Petitioner was legally entitled to subsistence allowance after retirement. The real question is whether the amount paid to him during the post-retirement period can now be recovered from his pensionary benefits.

11. It is undisputed that after his superannuation the Petitioner was not relieved to return to his home State of Bihar. On the contrary, he was required by the Government to remain at Mangan solely on account of the pending disciplinary proceedings. Had the Government chosen to relieve him on the date of superannuation, the Petitioner would have been free to return to his native place. Instead, he was compelled to continue residing at a distant station for reasons attributable entirely to the Government. Viewed in this background, the payment made to the Petitioner cannot be treated merely as subsistence allowance in the strict sense of service jurisprudence. The payment was, in substance, a financial arrangement made by the Government to sustain the Petitioner during a period when he was required to remain at a place not of his choosing and solely for the convenience of the disciplinary proceedings initiated by the State.

12. It is also significant that the payments were made by the Government voluntarily and continuously up to 31.10.2021 without any protest or reservation. The Petitioner cannot be faulted for receiving amounts sanctioned and disbursed by the competent authorities. There is nothing on record to indicate any misrepresentation or fraud on his part. Equally important is the fact that the recovery was effected from the commuted value of pension and other retiral benefits without affording the Petitioner any opportunity of hearing and without issuing any show-cause notice. Such recovery from pensionary benefits, apart from its civil consequences, is contrary to the principles of natural justice.

13. In the peculiar facts of the case, this Court is of the view that the amount paid to the Petitioner after his superannuation cannot be recovered. Though the payment may not answer the strict legal description of subsistence allowance, it was made in circumstances where the Petitioner was compelled by Government directions to remain stationed at Mangan after retirement. The equities of the case, coupled with the absence of any fault on the part of the Petitioner and the failure to follow due process before effecting recovery, clearly militate against the action of the State.

14. Accordingly, this Court holds that the amount paid to the Petitioner during the post-superannuation period shall not be recovered from his gratuity, pension, or any other retiral benefits.

15. The Petitioner claims that he was not given leave encashment for the period from 2016-2018 and 2019-2021. It is appropriate that the issue be considered by the Competent Authority if the Petitioner raises a claim for leave encashment. If a representation is filed in this regard, the same shall be considered within six (06) weeks.

16. The Petitioner has further contended that his retiral benefits were released after an inordinate delay of more than four years from the date of his superannuation. It is not in dispute that the pensionary benefits were ultimately disbursed only on 06.08.2024. Pension is not a bounty but a vested right accruing to a retired employee, and ordinarily the State is under an obligation to ensure timely settlement and release of all admissible retiral dues.

17. In the facts of the present case, the Petitioner was deprived of the use of his pensionary benefits for a considerable period. Therefore, he would be entitled for compensation in the form of interest on the delayed payment of pensionary benefits. Accordingly, the Petitioner shall be entitled to simple interest at the rate of 6% per annum on the pensionary benefits from the date on which the same became due and payable till the date of actual disbursement i.e., 06.08.2024.

18. As held hereinabove, the recovery of Rs.14,98,163/- (Rupees Fourteen Lakhs Ninety-Eight Thousand One Hundred and Sixty-Three Only) from the pensionary benefits of the Petitioner was unsustainable in law. Consequently, the Respondents are directed to refund the said amount to the Petitioner. The aforesaid payment shall be made within a period of six (06) weeks from the date of this judgment.

19. However, having regard to the peculiar facts and circumstances of the case, while the Petitioner shall be entitled to interest on the delayed release of pensionary benefits, no separate interest shall be payable on the amount of Rs.14,98,163/- directed to be refunded.

20. Accordingly, Writ Petition (C) No. 49 of 2024 stands disposed of in the above terms.