Dear Hema,
May be I am junior than you in the field of HR but then also would like to suggest you that rather asking for any proof to solve your query you should read the Principle of natural justice.
Regards,
Tejas.
From India, Delhi
5May be I am junior than you in the field of HR but then also would like to suggest you that rather asking for any proof to solve your query you should read the Principle of natural justice.
Regards,
Tejas.
From India, Delhi
I think the matter should be examined under the provisions of the TN Govt.Pension Rules read with the Constitutional validity. The link is here.
http://cms.tn.gov.in/sites/default/f...Tn.pension.pdf.
Whereas the right to pension vide SC judgment .. CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009 may be relevant. Full text Could not be attached due to its volume.
xxxxx
" 13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property
14
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”.
14. Article 300 A of the Constitution of India reads as under:
“300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.”
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant 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.
15
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C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. 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. As we noticed above, 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.
16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.
……………………….J. [K.S. Radhakrishnan]
………………………….J. [A.K. Sikri]
New Delhi August 14, 2013......
This judgment gives some lead as to how a pension cannot be withheld (or recovered) except as per law, not by the administrative orders issued by the state/central govt. as the pensionary benefits are considered as 'right to property' guaranteed under the Constitution of India under Article 300 A. May be if the employer file a suit to recover the residual sum and if the appropriate court pass a judgment in favour of the recovery, it may be possible which is unlikely.
I may be wrong or right, just for arguement sake, here the punishment is 'to recover from the employee's emoluments' (and definitely not from the 'Family Pension' to the kith & kin of the deceased. The question raised here is whether the recovery left over could be continued from the Family Pension of the family/nominee of the now deceased employee or not.
This question, I like to draw parallel to another type of punishment. Let us see for e.g. an employee was sentenced to undergo imprisonment for his conviction due to his involvement in a crime during his service. Unfortunately the convicted employee dies in prison before completing the full term of imprisonment. Now, could the wife/or legal heir be asked to undergo the balance of jail term ? The query is more less like the same what I described.
And Mr.NKS is correct in citing Ms.JJ's abatement due to her death, escaping the certain to be 4 yr jail term. I was in fact reminded of the very same JJ's case when I started reading Ms.Hema's first post.
Also consider, some times capital punishments like death and life terms two times or more are ruled for heinous crimes like multiple murders and so on (more in USA). Does this mean the convicted should be hanged twice, is there any first death and second death ? Hema's reference is similar to this if not the same. The debate may be continued..
From India, Bangalore
http://cms.tn.gov.in/sites/default/f...Tn.pension.pdf.
Whereas the right to pension vide SC judgment .. CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009 may be relevant. Full text Could not be attached due to its volume.
xxxxx
" 13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property
14
Page 15
C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”.
14. Article 300 A of the Constitution of India reads as under:
“300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.”
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant 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.
15
Page 16
C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. 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. As we noticed above, 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.
16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.
……………………….J. [K.S. Radhakrishnan]
………………………….J. [A.K. Sikri]
New Delhi August 14, 2013......
This judgment gives some lead as to how a pension cannot be withheld (or recovered) except as per law, not by the administrative orders issued by the state/central govt. as the pensionary benefits are considered as 'right to property' guaranteed under the Constitution of India under Article 300 A. May be if the employer file a suit to recover the residual sum and if the appropriate court pass a judgment in favour of the recovery, it may be possible which is unlikely.
I may be wrong or right, just for arguement sake, here the punishment is 'to recover from the employee's emoluments' (and definitely not from the 'Family Pension' to the kith & kin of the deceased. The question raised here is whether the recovery left over could be continued from the Family Pension of the family/nominee of the now deceased employee or not.
This question, I like to draw parallel to another type of punishment. Let us see for e.g. an employee was sentenced to undergo imprisonment for his conviction due to his involvement in a crime during his service. Unfortunately the convicted employee dies in prison before completing the full term of imprisonment. Now, could the wife/or legal heir be asked to undergo the balance of jail term ? The query is more less like the same what I described.
And Mr.NKS is correct in citing Ms.JJ's abatement due to her death, escaping the certain to be 4 yr jail term. I was in fact reminded of the very same JJ's case when I started reading Ms.Hema's first post.
Also consider, some times capital punishments like death and life terms two times or more are ruled for heinous crimes like multiple murders and so on (more in USA). Does this mean the convicted should be hanged twice, is there any first death and second death ? Hema's reference is similar to this if not the same. The debate may be continued..
From India, Bangalore
Dear Hema,
I feel that for correct understanding of the Order you are referring to, may be either attached with your query or you may mail me order no.113 dated 2.08.2006. It is only after reading the said order, I will give further guidance. Copy of the rule will also be provided to you.
2. But rest assured, Government can't recover any amount after death of an employee. Only government dues can be recovered from terminal benefits of gratuity or leave encashment. Amount of increment, on account of withholding of increment, does not come under the category of Government dues.
3. It may also be mentioned that an increment is earned by an employee based on certain conditions of service like completion of one year service without break etc. Hence, it does not come under the category of 'monetary benefit value.'
4. The punishment order did not impose any penalty to recover any amount of monetary loss caused to the government. therefore on this account also, recover of second stopped increment cannot be made.
5. Please note that an increment is given during the active service of an employee, When the employee is dead, you can neither grant increment nor withhold it, or make recovery.
6.No recovery can be made from pension. There is Hon'ble Supreme Court Judgment on this that no recovery can be made from pension. You can search the order of Hon'ble SC on the internet.
7. If you are not satisfied, do not withhold the file of the deceased employee. Put up a note for legal advice and move the file immediately by referring it to Legal Section of your department.
8. Kindly attach copy of Order No.113 dt. 2.08.2006 with your next query or mail me at
Regards
C.M. Lal Srivastava
Professional Expert - Service Matters
09818680671
From India, New Delhi
I feel that for correct understanding of the Order you are referring to, may be either attached with your query or you may mail me order no.113 dated 2.08.2006. It is only after reading the said order, I will give further guidance. Copy of the rule will also be provided to you.
2. But rest assured, Government can't recover any amount after death of an employee. Only government dues can be recovered from terminal benefits of gratuity or leave encashment. Amount of increment, on account of withholding of increment, does not come under the category of Government dues.
3. It may also be mentioned that an increment is earned by an employee based on certain conditions of service like completion of one year service without break etc. Hence, it does not come under the category of 'monetary benefit value.'
4. The punishment order did not impose any penalty to recover any amount of monetary loss caused to the government. therefore on this account also, recover of second stopped increment cannot be made.
5. Please note that an increment is given during the active service of an employee, When the employee is dead, you can neither grant increment nor withhold it, or make recovery.
6.No recovery can be made from pension. There is Hon'ble Supreme Court Judgment on this that no recovery can be made from pension. You can search the order of Hon'ble SC on the internet.
7. If you are not satisfied, do not withhold the file of the deceased employee. Put up a note for legal advice and move the file immediately by referring it to Legal Section of your department.
8. Kindly attach copy of Order No.113 dt. 2.08.2006 with your next query or mail me at
Regards
C.M. Lal Srivastava
Professional Expert - Service Matters
09818680671
From India, New Delhi
Ms. Hema
As per your quote.:
A tamilnadu government employee (Mr.x) joined in job on 14.12.1991as junior assistant and he got a promotion as assistant at 1997 onwards. And then he got a 17(b) chargers for patta transfer and then get a punishment - stoppage of two years increment with cumulative effect on 13.08.2014. His annual increment is every January.
The word is stoppage of Increment. Which was due on 01.01.2015…they could stop that..
But employee died on 24.05.2015…next increment was due on 01.01.2016…naturally No employee is available so there is no question of stopping increment..
Even they cannot recover the increment..
We need to know the his punishment order as the nature of mistake he might have done during Patta transfer..
Tamilnadu Government has to calculate the pension to his next of kin as per the salary paid to an employee May 2015 month…calculate and try to release all emoluments to next of kin of the deceased person..
Regards
R.R.Inamdar
ADVOCATE
Mobile No.09408004617
A to Z Solutions
(Expertise Consultancy- IR,HR, Training & Development,Govt.Liaison Work & Property)
SF-03, Charbhuja Complex, Beside H.P.Petrol Station, Water Tank Road,
Karelibaug, Vadodara-390018
From India, Mumbai
As per your quote.:
A tamilnadu government employee (Mr.x) joined in job on 14.12.1991as junior assistant and he got a promotion as assistant at 1997 onwards. And then he got a 17(b) chargers for patta transfer and then get a punishment - stoppage of two years increment with cumulative effect on 13.08.2014. His annual increment is every January.
The word is stoppage of Increment. Which was due on 01.01.2015…they could stop that..
But employee died on 24.05.2015…next increment was due on 01.01.2016…naturally No employee is available so there is no question of stopping increment..
Even they cannot recover the increment..
We need to know the his punishment order as the nature of mistake he might have done during Patta transfer..
Tamilnadu Government has to calculate the pension to his next of kin as per the salary paid to an employee May 2015 month…calculate and try to release all emoluments to next of kin of the deceased person..
Regards
R.R.Inamdar
ADVOCATE
Mobile No.09408004617
A to Z Solutions
(Expertise Consultancy- IR,HR, Training & Development,Govt.Liaison Work & Property)
SF-03, Charbhuja Complex, Beside H.P.Petrol Station, Water Tank Road,
Karelibaug, Vadodara-390018
From India, Mumbai
In addition to the clarifications given by the experienced members above, I just would like to add the following three points.
i) Punishment was imposed on the employee (deceased), but not on the family;
ii) Punishment was to cut in two increments (of salary), but not to recover the amount of increments from family pension of deceased employee or from his settlement dues. You should have known the difference between various types of punishments and their import;
iii) Once an employee dies, all disciplinary cases against him abates, consequently the instant punishment against him also. You can search for relevant rule position in TN service disciplinary rules.
Hence, the method you have proposed to take to comply with the punishment order is not correct.
From India, Madras
i) Punishment was imposed on the employee (deceased), but not on the family;
ii) Punishment was to cut in two increments (of salary), but not to recover the amount of increments from family pension of deceased employee or from his settlement dues. You should have known the difference between various types of punishments and their import;
iii) Once an employee dies, all disciplinary cases against him abates, consequently the instant punishment against him also. You can search for relevant rule position in TN service disciplinary rules.
Hence, the method you have proposed to take to comply with the punishment order is not correct.
From India, Madras
Dear Hema,
I think it is a basic misunderstanding. The punishment is to stop 2 increment of Salary. This will result in monetary loss to the employee not for 2 years but during his service, till retirement.
Are you allowed the increment and collecting back the amount? Can not be. The punishment is just stoppage of increase in his Salary and not any bulk amount to be recovered. The employee had lost monetary benefit (increment) till he is in service (till his death) and the punishment automatically ceases and no question of any recovery. I hope, now you understand the matter in right sprit and recommend for the F&F settlement to the family at earliest.
Mohan Sankaranarayanan.
Chief Consultant.
Sri Sastha Consultancy.
From India, Vijayawada
I think it is a basic misunderstanding. The punishment is to stop 2 increment of Salary. This will result in monetary loss to the employee not for 2 years but during his service, till retirement.
Are you allowed the increment and collecting back the amount? Can not be. The punishment is just stoppage of increase in his Salary and not any bulk amount to be recovered. The employee had lost monetary benefit (increment) till he is in service (till his death) and the punishment automatically ceases and no question of any recovery. I hope, now you understand the matter in right sprit and recommend for the F&F settlement to the family at earliest.
Mohan Sankaranarayanan.
Chief Consultant.
Sri Sastha Consultancy.
From India, Vijayawada
Penalty was stoppage of 2 annual increments, one you had already implemented when he was alive. Second stoppage you cant enforce as the employee no longer exists for the second year's stoppage, so you cant deduct annual increment from a dead person and you also dont give annual increment to a dead person who is not in service at the time of giving or taking.
From India, Thane
From India, Thane
Dear Miss Hema,
As per your information Employee in question died on 24/05/2015.You have taken almost 2 years to decide about payment of Pension to Deceased Family by deducting Notional 2 Increments for about 19 Months.This clearly reflects the ground realities in Government Organization.We all have given our Opinion based on our knowledge, Culture etc
I have a Serious question for you?
Can Family Members of Deceased Employee recover from your Salary certain Portion for not clearing the pension from the past 2 years.please revert with your remarks.Further, please update all of us about the outcome
You have been very vigorous in recovering Money from deceased Employee family where as you have never thought about Family members hardship consequent to loss of earning. you have to be sensitive not just obedient Govt Employee
From India, New Delhi
As per your information Employee in question died on 24/05/2015.You have taken almost 2 years to decide about payment of Pension to Deceased Family by deducting Notional 2 Increments for about 19 Months.This clearly reflects the ground realities in Government Organization.We all have given our Opinion based on our knowledge, Culture etc
I have a Serious question for you?
Can Family Members of Deceased Employee recover from your Salary certain Portion for not clearing the pension from the past 2 years.please revert with your remarks.Further, please update all of us about the outcome
You have been very vigorous in recovering Money from deceased Employee family where as you have never thought about Family members hardship consequent to loss of earning. you have to be sensitive not just obedient Govt Employee
From India, New Delhi
Sorry sir I am not a government employee, even i want to not recovered money from that family so that I want to know the government orders for not recovered
1.Sir I want to know that the possibility of recovery from increment arrears or engagement of leave, if they recovered what should I do?
From India, Chennai
1.Sir I want to know that the possibility of recovery from increment arrears or engagement of leave, if they recovered what should I do?
From India, Chennai
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