HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 21135/2018 Basant Ram Maurya Son Of Late Sh. Jai Ram Maurya, Aged About 68 Years, Resident Of House No. 7, Monika Vihar-I, Mansarovar, Jaipur. (Senior Citizen) ----Petitioner Versus 1. The State of Rajasthan Through Principal Secretary, Department of Forests, Secretariat, Jaipur. 2. Secretary, Department of Personnel (A- 3/complaints), Secretariat, Jaipur. 3. Principal Chief Conservator of Forests, Rajasthan, Aranya Bhawan, Jhalana Institutional Area, Jaipur. 4. Director, Pension and Pensioners Welfare, Rajasthan, Jaipur. ----Respondents For Petitioner(s) : Mr. Surendra Singh For Respondent(s) : Mr. Dheeraj Tripathi, AGC Mr. Rahul Lodha, AGC JUSTICE ANOOP KUMAR DHAND Order 28/01/2025 Reportable 1. Golden thread rule of criminal law is that a person shall be presumed to be 'innocent until proven guilty'. 2. The presumption of innocence is a legal principle that every person who is accused of any offence is considered innocent until proven guilty. The burden of proof is thus upon the prosecution to prove its case beyond reasonable doubt against the accused. If reasonable doubt remains in trial, the accused is liable to be acquitted. (2 of 23) [CW-21135/2018] 3. In many countries and under many legal systems, including common law, the presumption of innocence is a legal right of the accused in criminal trial. Under Article 11.1 of the Universal Declaration of Human Rights, 1948, it is also recognized as human right. Article 11.1 reads, as under:- “11.1 Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” 4. The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Article 9.1, as under:- “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law;” 5. The European Convention for the Protection of Human Rights and Fundamental Freedoms provides in Article 6(1) that every person charged has a right to ‘fair’ trial and Article 6(2) thereof states, as under:- “Art. 6(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 6. Article 7 (b) of the African Charter on Human and People’s Rights and Section 11(d) of the Canadian Charter of Rights and Freedoms mandate that the accused shall be presumed to be innocent till he is proved guilty. (3 of 23) [CW-21135/2018] 7. All the above instruments declare the basic and fundamental human right which every person shall enjoy and it is the duty of the States to facilitate such enjoyment. Many countries have accorded presumption of innocence a status of constitutional right. The presumption of innocence shapes the approach towards fundamental values of right to life and personal liberty. But this golden thread of rule in criminal justice system has not been specifically incorporated in the Indian Constitution or the criminal statutes. The Hon'ble Supreme Court has widely interpreted Article 21 of the Constitutionof India, thereby bringing many rights including right of fair trial within the ambit of Right to life. However, presumption of innocence has not been raised to the level of fundamental right under Part III of the Constitution of India. The Hon’ble Supreme Court in the case of Noor Aga Vs State of Punjab reported in 2008 (16) SCC 417 has held that, “Presumption of innocence is a human right, as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty, adumbrated in Article 21 of the Constitution of India. 8. Every accused person is presumed innocent until proven guilty. This presumption of innocence is not just a legal principle but a fundamental human right. While there are statutory exceptions to this Rule, it forms the cornerstone of criminal jurisprudence. Even when a statute (4 of 23) [CW-21135/2018] presumes guilt, it must meet the standards of reasonableness and liberty, enshrined in Article 14 and 21 of the Constitution of India. Suspicion, however strong, is no substitute for proof. There is a significant distance between "may be true" and "must be true", and the presumption must cover this distance by proving its case beyond all reasonable doubts. But, once an accused is acquitted of the alleged charges levelled against him, the proceedings of criminal case stands terminated against him and mere filing of an appeal against the judgment of his acquittal cannot be treated as continuing part of criminal trial unless the appeal is allowed and the acquittal of the accused is quashed and set-aside. 9. Now, the issue which remains for consideration of this Court is "Whether, even after acquittal of the petitioner in a criminal case, the government authorities can withhold the retiral dues and gratuity of the petitioner (pensioner) only because the State has submitted an appeal against the judgment of his acquittal ?" 10. By way of filing this petition, the petitioner is seeking directions against the respondents for releasing the amount of gratuity with interest. 11. Counsel for the petitioner submits that the petitioner was facing trial for the offence under Section 13(1)(e)(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') before the Court of Special Judge, Prevention of Corruption Act, Cases, Jaipur and he was acquitted of all the (5 of 23) [CW-21135/2018] charges vide judgment dated 20.07.2007. Counsel submits that thereafter, the petitioner stood retired on 30.04.2008 upon attaining the age of superannuation, but in-spite of passing of more than 16 years, till date, the amount of gratuity has not been released to the petitoiner. Counsel submits that the reason for withholding the gratuity amount of the petitioner is that a criminal appeal against the judgment of acquittal of the petitioner, has been filed by the State before the Appellate Court. Counsel submits that filing of a criminal appeal against the judgment of acquittal cannot be a ground for withholding the amount of gratuity. In support of his contentions, he has placed reliance upon the judgment passed by the Co-ordinate Bench of this Court in the case of Virendra Kumar Singhal vs. The Chairman and Managing Director, Rajasthan Rajya Vidhyut Utpadan Nigam Ltd. and Ors. (SB Civil Writ Petition No.16994/2016) decided on 25.10.2017. Counsel submits that appropriate directions be issued to the respondents for releasing the amount of gratuity along with interest. 12. Per contra, learned counsel for the respondents oppose the arguments raised by the counsel for the petitioner and submit that the petitioner faced trial for the offence under Section 13 (1)(e)(2) of the Act of 1988. Though, he was acquitted by the Trial Court vide judgment dated 20.07.2007, but against the said judgment, an appeal has been preferred by the State and the same is pending before the Appellate Court, and as the appeal is considered as continuation of the trial, hence, under these circumstances, (6 of 23) [CW-21135/2018] the petitioner is not entitled to get the amount of gratuity, in terms of Rule 90 (c) of the Rajasthan Civil Services (Pension) Rules, 1996 (for short 'the Rules of 1996'). Counsel submits that under these circumstances, interference of this Court is not warranted. 13. Heard and considered the submissions made at the Bar and perused the material available on the record. 14. A conjoint reading of Rule 7 and Rule 90(c) of the Rules of 1996 reveals that if any judicial proceeding is pending against a delinquent employee, the gratuity can be withheld and only provisional pension can be released. 15. This fact is not in dispute that a criminal case under Section 13 (1)(e)(2) of the Act of 1988 was pending against the petitioner prior to his retirement, but he was acquitted of all the charges by the Court of Special Judge, Prevention of Corruption Act Cases vide judgment dated 20.07.2007. Indisputably, respondent State has assailed the aforesaid judgment before the Appellate Court by way of filing an appeal and the said appeal is still pending consideration before the Appellate Court. This fact is also undisputed that after acquittal, the petitioner has retired from service on 30.04.2008 upon attaining the age of superannuation. 16. For reading reference Rule 7 and 90 of the Rules of 1996 are reproduced as under: "7. Right of Governor to withhold or withdraw pension (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a (7 of 23) [CW-21135/2018] pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement: Provided that the Rajasthan Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of [rupees eight thousand eight hundred fifty per mensem]. (2) (a) The departmental proceedings referred to in sub rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report recording its findings to the Governor. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment- (i) shall not be instituted save with the sanction of the Governor, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made inrelation to the Government servant during his service. (8 of 23) [CW-21135/2018] (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub rule (2), a provisional pension as provided in Rule 90 shall be sanctioned: [Provided that in case of Government Servant against whom departmental proceedings have been institutted under rule 17 of the Rajasthan civil Services (Classification, Control and Appeal) Rules, 1958 for imposing any of the penalties specified in clauses (i) and (ii) of rule 14 of the said rule, the hundred percent final gratuity shall be paid.] (5) Where the Governor decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule, - (a) departmental proceedings shall be deemed to be instituted on the date on which the charges together with a statement of allegations on which they are based, or the proposal of Government to take disciplinary action together with the allegations on which it is proposed to be taken, are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted - (i) in the case of criminal proceeding, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (9 of 23) [CW-21135/2018] (ii) in the case of civil proceedings, on the date the plaint is presented in the court. Rule 90. Provisional pension and provisional retirement gratuity where departmental or judicial proceedings are pending. (1) (a) In respect of a Government servant referred to in sub rule (4) of Rule 7, the Director, Pension Department, Rajasthan, on receipt of pension case alongwith sanction of provisional pension from the appointing authority shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant, or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension: Provided that in cases where pension case could not be prepared finally for one or the other reason the appointing authority shall sanction provisional pension in Form 33 after following procedure laid down in sub-rule (3) of Rule 86 and send the case to the Director, Pension for issue of Provisional Pension Payment Order till the Departmental Enquiry is finalised. (b) The provisional pension shall be authorised by the Director, Pension Department, during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority: [Provided that no recovery shall be made from provisional pension paid under sub-rule (1), where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period] (c) In respect of the Government Servant referred to in sub-rule (4) of the rule 7, the privisional retirement gratuity may be paid as under:- (i) fifty percent amount of gratuity of the Government servant against whom departmental (10 of 23) [CW-21135/2018] proceedings have been instituted under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal), Rules 1958 or against whom criminal case involving moral turpitude or offence relating to this official duty is pending; and (ii) twenty percent of amount of gratuity to the Government Servant against whom amount of House Building Advance has been set apart for recovery out of retirement gratuity at the time of grant of House Building Advance or against house rent of Government Accommodation is due.] [(2) The provisional retirement gratuity paid under clause (c) of sub-rule (1) (i) shall be adjusted against final retirement gratuity sanctioned to such Government servant upon conclusion of departmental proceedings or Judicial proceedings and if amount paid is in excess of amount payable such excess amount shall be recovered; and (ii) shall be recovered from the Government servant who is removed or dismissed from the service on finalization of departmental proceedings under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 or criminal case involving moral turpitude or offence relating to his official duty.] 17. Upon perusal of the above provisions it is nowhere expressly provided that even after acquittal the retiral benefits shall not be released, if any appeal is filed against the order of acquittal. Meaning thereby, no such bar is imposed in the scheme for not releasing the retiral benefits before the decision of the appeal filed against the judgment of acquittal. In this connection, this Court has considered the judgment of the Hon'ble Supreme Court in the case of Narayan Prabhu Venkateswara Prabhu vs. Narayana Prabhu Krishna Prabhu reported in AIR 1977 SC 1268, (11 of 23) [CW-21135/2018] in which the Hon''ble Supreme Court in para No. 16 observed as under:- "16. So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question Whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal. The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the un-amended Article 133(1)(c)in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for Special Leave to appeal." 18. The law is quite settled in this regard that mere pendency of an appeal is no ground to withhold retiral benefits. There are catena of judgments/ orders passed by the Co-ordinate Benches of this Court which has crystallized the position of law in this regard. 18.1 In Virendra Kumar Singhal Vs. Chairman and Managing Director, Rajasthan Rajya Vidhyut Utpadan Nigam Ltd. and Ors. (SB Civil Writ Petition No.16994/2016) decided on 25.10.2017, the Co-ordinate (12 of 23) [CW-21135/2018] Bench of this Court held that, it is a well settled law that criminal revision filed before the High Court cannot be said to be a continuation of criminal trial or criminal proceedings against an individual within the meaning of Rule 7 of the Pension Rules of 1966, and, therefore, the embargo contained under Rule 90(1)(c) would be no more applicable once a person has been discharged of the criminal offence. Thus, merely because of pendency of criminal revision or for that matter any appeal against an discharge or acquittal as the case may be, a person cannot be denied regular service benefits. 18.2 In Jagan Ram Vs. The State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 19178/2015) decided on 08.02.2019, it was held by the Co-ordinate Bench of this Court that pendency of the appeal against the petitioner's acquittal vide judgment dated 17-7-2006 cannot be held to be a pendency of "judicial proceeding" entitling the respondents to withhold petitioner's gratuity, commutation or for that matter any other retiral benefits due following the petitioner's superannuation on 31-8-2008. 18.3 In Prasan Kumar Jain Vs. National Insurance Co. Ltd. and Ors. (S.B. Civil Writ Petition No. 8932/2009) decided on 08.07.2015, the Co-ordinate Bench of this Court at Principal Seat at Jodhpur has held that, the fact that the petitioner was acquitted from the criminal charges levelled against by the competent criminal court, the respondents cannot deny the retiral benefits to the petitioner because for (13 of 23) [CW-21135/2018] the purpose of releasing retiral benefits there is no bar in the scheme. 18.4 In Goma Bhura Ram Vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 12859 of 2016) decided on 31.01.2018, the Co-ordinate Bench of this Court has held that, mere pendency of an appeal before the Appellate Court against the order of acquittal cannot be a ground for depriving the superannuated incumbent of his retiral benefits. 19. Likewise, the Supreme Court in the case reported in (2013) 12 SCC 210 [State of Jharkhand & Ors. Vs. JitendraKumar Shrivastava & Anr.] has very specifically observed that in absence of any provision in the Pension Rules, the State Government cannot withhold a part of pension and/or gratuity even during pendency of departmental/criminal proceedings. However, in the said case, the Supreme Court has dealt with the provisions of Bihar Pension Rules, but the analogy as has been applied by the Supreme Court in the aforesaid case has direct impact in the present case. In the aforesaid case, the Supreme Court has also discussed the rights of an employee to receive pension and also observed that pension includes gratuity. The observations made by the Supreme Court in the case of Jitendra Kumar Shrivastava (supra) are as under:- “7. The aforesaid arguments of the learned Senior Counsel based on the judgment in Sant Ram Sharma v.State of Rajasthan, AIR 1967 SC 1910 would not cut any ice insofar as present case is concerned, because of the reason that (14 of 23) [CW-21135/2018] case has no applicability in the given case. Sant Ram judgment governs the field of administrative law wherein the Constitution Bench laid down the principle that the rules framed by the authority in exercise of powers contained in an enactment, would also have statutory force. Though the administration can issue administrative instructions for the smooth administrative function, such administrative instructions cannot supplant the rules. However, these administrative instructions can supplement the statutory rules by taking8 W.P. No.13798/2013 care of those situations where the statutory rules are silent. This ratio of that judgment is narrated in the following manner: (AIR p. 1914, para 7) “7. … It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions and inconsistent with the rules already framed.” There cannot be any quarrel on this exposition of law which is well grounded in a series of judgments pronounced post Sant Ram Sharma case as well. However, the question which is posed in the present caseis altogether different. 8. 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. Conceptually it is so lucidly described in D.S. Nakara v. Union of India [(1983) 1SCC 305] by D.A. Desai, J. who spoke for the Bench, inhis inimitable style, in the following words: (SCC pp.319-20, paras 18-20)“ (15 of 23) [CW-21135/2018] 18. 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 employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? 19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. 20. The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the9 W.P. No.13798/2013 Constitution Bench in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330] wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh[(1976) 2 SCC 1]. (16 of 23) [CW-21135/2018] It is thus a hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India. 9. Having explained the legal position, let us first discuss the rules relating to release of pension. 10. The present case is admittedly governed by the Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43 (b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under: “43. (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re- employment after retirement:” 11. From the reading of the aforesaid Rule 43(b),following position emerges: (i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. (ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending. (iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings. (17 of 23) [CW-21135/2018] (iv) This power can be invoked only when the proceedings are concluded finding guilty and not before. 12. There is also a proviso to Rule 43(b), which provides that: “(a) such departmental proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made— (b) judicial proceedings, if not instituted while the government servant was on duty either before retirement or during re- employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b)puts some conditions i.e. departmental proceeding as indicated in Rule 43(b), if not instituted while the government servant was on duty, then it shall not be instituted except: (a) With the sanction of the Government, (b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. (18 of 23) [CW-21135/2018] Thus, insofar as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated. 13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. 14. The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330], as is apparent from the following discussion: (SCC pp. 342-43, paras 27-33) “27. The last question to be considered, is, whether the right to receive pension by a government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 28. According to the petitioner the right to receive pension is property and the respondents by an executive order dated 12- 6-1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on 5-8-1996. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr Jha, learned counsel for the respondents, was not prepared to take (19 of 23) [CW-21135/2018] up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution. 29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of qualifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognise the right of persons like the petitioners to receive pension under the circumstances mentioned therein. 30. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India [AIR 1962 Punj 503] It was held that such a right constitutes ‘property’ and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. The Letters Patent Bench in its decision in Union of India (20 of 23) [CW-21135/2018] v. Bhagwant Singh [ILR (1965) 2Punj 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is ‘property’ within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as ‘property’ cannot possibly undergo such mutation at the whim of a particular person or authority. 31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab [AIR 1967 Punj279]. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in (21 of 23) [CW-21135/2018] the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action byway of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.32. This Court in State of M.P. v. Ranojirao Shinde [AIR 1968 SC 1053] had to consider the question whether a ‘cash grant’ is ‘property’ within the meaning of that expression in Articles19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing ‘it is obvious that a right to sum of money is property’. 33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause (5) of Article 19. Therefore, it follows that the order dated 12- 6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. (22 of 23) [CW-21135/2018] It may be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.”” 15. In State of W.B. v. Haresh C. Banerjee [(2006)7 SCC 651] this Court recognised 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. 20-6-1979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A 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.” As per the aforesaid enunciation of law, it is clear that in absence of any specific provision empowering the employer to withhold the pension of an employee, the same cannot be withheld. 20. A look at the provision contained under Rule 90 of the Rules of 1996 clearly indicates that release of gratuity depends upon conclusion of departmental and judicial proceedings. Thus, if a person has been acquitted in judicial proceedings or exonerated in the departmental proceedings, the gratuity amount shall be released. 21. Hence, it is clear that, mere filing of a criminal appeal before the Appellate Court against the judgment of acquittal (23 of 23) [CW-21135/2018] cannot be treated as continuation of criminal trial or criminal proceedings against an individual within the meaning of Rule 7 read with Rule 90 of the Rules of 1996, hence, under these circumstances, the embargo contained under Rule 90 is not applicable in such alike matters. 22. Consequently, the instant writ petition stands allowed. The respondents are directed to release the gratuity amount to the petitioner, forthwith, without any further delay with interest @9% per annum with effect from the date it became due till its actual payment. 23. Needless to observe that the respondents would comply the order passed by this Court within a period of three months from the date of receipt of certified copy of this order. 24. Pending applications, if any, stand disposed of. (ANOOP KUMAR DHAND),J KuD/105