Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Punjab-Haryana High Court
Shanti Nandan vs State Of Punjab And Others on 16 March, 2021Civil Writ Petition No.14029 of 2020 & Connected case …1…
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.14029 of 2020
Date of Decision: 16-03-2021
Shanti Nandan
…Petitioner
Versus
State of Punjab & Others
…Respondents
Civil Writ Petition No.14493 of 2020
Ajmer Singh
…Petitioner
Versus
State of Punjab & Others
…Respondents
(Heard through Video-Conferencing)
CORAM: HON’BLE MRS. JUSTICE MEENAKSHI I. MEHTA
Present: Mr. Amit Sharma Advocate,
for the petitioner(s).
Mr. N.K.Banka, DAG, Punjab,
for respondents No.1 and 2.
Mr. Naresh Gopal Sharma, Advocate for
Mr. Mehardeep Singh, Advocate,
for respondents No.3 & 4 in CWP No.14029 of 2020.
Mr. Tripjeet Singh Sidhu, Advocate,
for respondents No.3 & 4 in CWP No.14493 of 2020.
* * * * ** * *
MEENAKSHI I. MEHTA, J.
Vide this single judgment, both the above-mentioned writ petitions
1 of 10
::: Downloaded on – 17-03-2021 00:58:12 :::
Civil Writ Petition No.14029 of 2020 & Connected case …2…
are being disposed of together as the identical question of law is involved therein.
2. The petitioners, in both these petitions, have sought the indulgence of
this Court for issuance of a writ in the nature of mandamus directing the
respondents to ensure the payment of all the retiral dues to them, along-with
interest thereon @ 18% per annum, from the date of accrual till the actual payment
thereof with a further prayer for issuing an interim direction to respondent No.4 to
take a final decision on the enquiry report dated 05.12.2018 in respect of the
charge-sheets dated 10.03.2017 as served to them.
3. For the sake of precision and brevity and also to avoid the repetition
of facts, it would be expedient to cull out the common facts as canvassed by both
the petitioners in their respective petitions. The petitioners had remained employed
with the respondent-Federation and have already superannuated. The services of
the employees of the respondent-Federation are governed by the Punjab State
Co-operative Supply and Marketing Federation Employees (Common Cadre
Service) Rules, 1990 (here-in-after referred to as “the Service Rules”) and the
Punjab State Co-operative Supply and Marketing Federation Employees
(Punishment and Appeals) Rules, 1990 (here-in-after referred to as “the
Punishment and Appeal Rules”). They were issued separate charge-sheets dated
10.03.2017 with the allegations of having caused monetary loss to the respondent-
Federation and in pursuance of the same, an enquiry had also been conducted
against them. The Enquiry Officer, vide his report dated 05.12.2018, held that the
charges, levelled against them, stood proved. However, the decision qua the said
disciplinary proceedings has not yet been taken whereas the said proceedings in
respect of some of the similarly placed employees have already been finalized.
The respondents have withheld their retiral dues, i.e the amounts of gratuity and
2 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …3…
leave encashment and have, thus, wrongly deprived them of their said dues, as
admissible to them on their retirement and they are suffering financial hardship on
account of the delay on the part of the respondents in taking the final decision qua
the said disciplinary proceedings as pending against them.
4. Respondents No.1 and 2 have filed their reply in both the petitions, by
way of the affidavits of Mr. Baljinder Singh, Joint Registrar-2, Cooperative
Societies, Punjab, wherein he has deposed that no interest of the State is involved
in these petitions as the actual dispute lies between the petitioners and respondents
No.3 and 4 because the petitioners have sought the afore-claimed relief from these
respondents only and the respondent-Federation, being a body corporate under the
Punjab Cooperative Societies Act, 1961, has its own independent legal existence.
5. It is worth-while to mention here that in pursuance of the order as
passed by this Court in both these petitions on 14.01.2021 whereby respondents
No.3 and 4 were directed to explain the delay caused in completion of the
disciplinary proceedings against the petitioners, these respondents have placed the
affidavits of the Law Officer of the respondent-Federation on the record and the
depositions, as made by him therein, shall be discussed and dealt with while
discussing the merits of both these writ petitions separately in the later part of this
judgment.
6. I have heard Mr. Amit Sharma, learned counsel for the petitioners,
Mr. N.K.Banka, learned Deputy Advocate General, Punjab; Mr.Naresh Gopal
Sharma, Advocate for Mr. Mehardeep Singh Advocate and Mr. Tripjeet Singh
Sidhu, Advocate, learned counsel for respondents No.3 and 4 in these petitions and
have also perused the files thoroughly.
3 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …4…
7. At the very outset, learned counsel for the petitioners has conceded that
the respective amounts of the retiral benefits have already been released to both
the petitioners during the pendency of these petitions. It being so, it is explicit that
the sole dispute, that now survives between the parties for adjudication by this
Court, is qua the claim of the petitioners for the grant of interest on their retiral
dues on account of the alleged delayed payment thereof.
8. Learned counsel for the petitioners has contended that after the
submission of the report by the Enquiry Officer on 05.12.2018, though vide the
letter dated 28.12.2018, the respondents had supplied the copies thereof to the
petitioners and had directed them to file their reply in respect thereof and the
petitioners had also filed the same but however, no decision had been taken in
respect of the disciplinary proceedings as carried out against both the petitioners
and their retiral dues have also been withheld by the respondents on account of the
pendency of the said proceedings whereas the petitioners were entitled to the
release of the said dues, i.e the amounts of gratuity and leave encashment, with
effect from the respective dates of their superannuation and on account of this
unjustifiable delay on the part of the respondents in payment/release of these dues,
the petitioners are entitled to the interest on the same.
9. However, learned counsel for respondents No.3 & 4, in both the
petitions, have argued that the respondent-Federation was well within its rights to
withhold the payment of the retiral dues of the petitioners in view of the
departmental/disciplinary proceedings as were pending against them at the time of
their superannuation and since several other employees of the respondent-
Federation had also been charge-sheeted along-with the petitioners, therefore, the
Punishing Authority deemed it appropriate to finalize the disciplinary proceedings
4 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …5…
against all such employees simultaneously and thus, there is no unreasonable delay
on the part of the respondents in releasing the payment of the said dues to the
petitioners and therefore, they are not entitled to claim any interest on the said
amounts.
10. Admittedly, the services of the petitioners were governed by the
Service Rules. Rule 5.7 of the said Rules specifically provides as under:-
“If these Rules are silent on any issue or no provision has
been made on any specific point, the Punjab Government
Rules/instructions on that issue will apply.”
The Service Rules do not define the term “gratuity” and are also silent
on the point of release or withholding of the retiral benefits of an employee against
whom the disciplinary proceedings were initiated during the tenure of his service/
before his superannuation. In view of the afore-cited Service Rule, the provisions
of the Punjab Civil Services Rules (here-in-after referred to as the ‘PCS Rules’), as
applicable to the employees of the State of Punjab, are required to be looked into
to deal with such a situation.
11. Rule 2.45(b) of the PCS Rules, Vol.I Part I defines the term “pension”
as under:-
“Except when the term, “pension” is used in contradistinction
to “Gratuity”, pension includes Gratutity.”
The above-discussed definition makes it quite clear that gratuity is
one of the retiral benefits and unless otherwise intended, it is included in the term
“pension”. It being so, the benefit of Gratuity can safely be construed to be
analogous to the benefit of pension admissible under the PCS Rules as
5 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …6…
undisputedly, the benefit of Pension is not admissible to the employees of the
respondent-Federation.
Rule 2.2 (b) of the PCS Rules Vol.II provides as under:-
“x x x x x x
The Government further reserve to themselves the right of
withholding or withdrawing a pension or any part of it,
whether permanently or for a specified period and the right of
ordering the recovery from a pension of the whole or part of
any pecuniary loss caused to Government, if, in a
departmental or judicial proceedings, the pensioner is found
guilty of grave mis-conduct or negligence during the period of
his service, including service rendered upon re-employment
after retirement:-
Provided that-
(1) Such departmental proceedings, if instituted while the
officer was in service, whether before his reteirement or
during his re-employment, shall after the final retirement of
the officer, be deemed to be a proceeding under this article
and shall be continued and concluded by the authority by
which it was commenced in the same manner as if the officer
had continued in service;
(2) xxxxxxx”
Further, the explanation as appended to Proviso 3 of the said Rule is
as under:-
” (a) a departmental proceeding shall be deemed to be
instituted on the date on which the statement of charges is
issued to the officer or pensioner, or if the officer has been
placed under suspension from an earlier date, on such date; and
(b) xxxxxx ”
6 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …7…
In view of the above-mentioned Rules, it further becomes explicit that
since the charge-sheets had been issued to both the petitioners during the tenure of
their employment/re-employment with the respondent-Federation, therefore the
respondent-Federation was well within its rights to withhold the amount of
gratuity, as payble to the petitioners, till the conclusion of the disciplinary
proceedings launched against them.
12. Moreover, it has, recently, been observed by a three Judges’ Bench of
the Hon’ble Supreme Court in “Chairman-cum-Managing Director, Mahanadi
Coalfields Limited vs. Sri. Rabindranath Choubey” 2020(2) SCT 554 that
“where the disciplinary proceedings were initiated before the superannuation of
an employee, the payment of gratuity could be withheld till the proceedings were
concluded”. In the light of these observations also, it becomes crystal clear that
the respondents could withhold the amounts of the Gratuity of the petitioners,
against whom the disciplinary proceedings had, admittedly, been initiated before
their superannuation, till the conclusion of the disciplinary proceedings carried out
against them.
13. Further, the Service Rules are also silent qua the payment of the leave
encashment amount to an employee retiring in the above-discussed circumstances.
However, Rule 8.21 (aa) of the PCS Rules Vol.I Part I provides as under:-
“(aa) Notwithstanding anything contained in sub-rule (a), the
authority competent to grant leave may withhold whole or part
of cash equivalent of earned leave in the case of Government
employee, who retires from service on superannuation while
under suspension or while disciplinary or criminal proceedings
are pending against him, if in the opinion of such authority,
there is a possibility of some money becoming recoverable from
7 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …8…
him on conclusion of the proceedings against him and on
conclusion of the proceedings, he shall become eligible to the
amount so withheld after adjustment of Government dues, if
any.”
Thus, the above-said Rule also provides for withholding the leave
encashment amount of an employee superannuating during the pendency of the
disciplinary proceedings initiated against him/her till the finalization of such
proceedings and the same would be applicable to the case of the petitioners also in
view of Rule 5.7 of the Service Rules as discussed earlier.
14. Now, as regards the interest as claimed by both the petitioners on the
above-said retiral dues, the same shall be discussed separately in case of each
petitioner in view of the different factual position qua their respective claims.
15. CWP No.14029 of 2020 :- Petitioner-Shanti Nandan was due to retire
on 30.09.2016 but in view of his request for extension in service as well as the
relevant instructions of the Government in this regard, the period of his service
was extended for one year w.e.f. 01.10.2016 to 30.09.2017. After having been
charge-sheeted on 10.03.2017, he was retired from the service on 31.03.2017 vide
the order Annexure P-4. Thereafter, vide Annexure P-5, i.e the copy of letter
dated 28.12.2018, he was supplied the copy of the enquiry report dated 05.12.2018
pertaining to his said charge-sheet and was also intimated to move representation
within 15 days. However, the petitioner has not placed any document on the
record to show that he had so represented within the above-mentioned stipulated
period. Rather, Annexure P-6 is the copy of letter dated 22.08.2019 as shown to
have been addressed by the petitioner to respondent No.4 with a request to drop
the charges levelled against him and to release his retiral dues.
8 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …9…
16. As deposed by the Law Officer of the respondent-Federation in his
afore-referred affidavit, the petitioner had appeared for personal hearing on
22.08.2019 but however, the fact remains that order Annexure R-1 qua the
finalization of the disciplinary proceedings and thereby, awarding the punishment
to the petitioner, has been passed on 31.12.2020, i.e about one year four months
thereafter. Though, the said Law Officer has also deposed in his affidavit that
some of the delinquent employees, who were issued charge-sheets, had not
appeared for personal hearing on the afore-said date and they had, rather, been
personally heard on 19.12.2019 and thereafter, lockdown was imposed and hence,
the said disciplinary proceedings could not be finalized but this explanation does
not seem to be plausible at all so as to justifiably explain the afore-said delay
caused in the decision/finalization of the disciplinary proceedings against the
petitioner. After giving personal hearing to the petitioner on 22.08.2019, the
Punishing Authority, at the most, could be presumed to be requiring time upto
30.09.2019 to take the final decision in respect of these proceedings. In these
circumstances, it is held that the petitioner is entitled to the interest on his said
retiral dues w.e.f. 01.10.2019 till the actual payment of the same, on account of the
said inordinate delay in the release thereof to him.
Resultantly, the present petition is hereby allowed to the extent that
the respondents are liable to pay the interest to the petitioner on the amount of his
retiral benefits @ 7.5% per annum for the above-said period.
17. CWP No.14493 of 2020 :- Petitioner-Ajmer Singh had superannuated
on 31.03.2020 vide order Annexure P-6. Admittedly, the disciplinary proceedings
were still pending against him at that time despite the facts that as deposed by the
said Law Officer in his affidavit, he (petitioner) had appeared for personal hearing
9 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Civil Writ Petition No.14029 of 2020 & Connected case …10…
on 19.12.2019 and thus, the competent authority had more than three months’ time
till his superannuation, to take the final decision regarding the disciplinary
proceedings carried out against him meaning thereby that the same should have
been decided well before his retirement. However, he has also been awarded the
punishment vide order dated 31.12.2020 (Annexure R-1). In the normal course of
events, a period of three months after the superannuation is to be taken as
reasonable enough for releasing the retiral benefits to an employee and it being so,
the petitioner should have been paid his retiral dues, in any case, upto 30.06.2020.
Therefore, he is also entitled to the interest on his retiral dues w.e.f. 01.07.2020 till
the actual payment thereof.
Resultantly, this petition is also allowed to the effect that the
respondents are liable to pay the interest to the petitioner on the amount of his said
retiral benefits @ 7.5% per annum for the afore-mentioned period.
Both the instant petitions stand allowed accordingly.
(MEENAKSHI I. MEHTA)
16.03.2021. JUDGE
seema
Whether speaking/reasoned? Yes/No
Whether Reportable? Yes/No
10 of 10
::: Downloaded on – 17-03-2021 00:58:13 :::
Comments