Sudhir Kumar Upadhyay vs Union Of India And Others
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Allahabad High Court

Sudhir Kumar Upadhyay vs Union Of India And Others on 5 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:70761
 

 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
***
 
WRIT - A NO. 13397 OF 2024
 
Sudhir Kumar Upadhyay                                   	         	      ....Petitioner
 
Versus
 
Union of India and others          			     	 ....Respondents
 
Appearance :-
 
For Petitioner 	 		: 	 Mr. Hari Narayan Singh, Senior 						 Advocate along with Mr. Pranjal 						 Singh, Advocate
 
For Respondents			: 	 Mr. Sanjay Kumar Om, Advocate 						 for respondent Nos. 2 & 3
 

 
HON'BLE J.J. MUNIR, J.

The petitioner, who is a Manager (Liaison) with the British India Corporation Limited, a government company, posted at their Kanpur unit, claims to be going without salary since the month of June, 2019. The petitioner also says that he has not been paid his pending medical reimbursement and hospitalisation expenses, all of which, the respondents have unlawfully stopped. The petitioner is still serving them regularly. He, therefore, prays that a mandamus be issued, ordering the respondents to pay his current salary month-to-month, as and when it falls due. He further seeks a command, ordering the respondents to release the arrears of his salary with effect from June, 2019 until date along with the interest accrued. There is a further prayer for a direction to the respondents to reimburse the petitioner's medical and hospitalisation expenses, all within a determinate time.

2. The petitioner was appointed as a Management Trainee with the British India Corporation Limited1 in the year 1989 and is currently working as the Manager (Liaison). He holds the charge of Committee Head of the Corporation Head Office as well as the Cawnpore Woollen Mills Branch, Lal Imli, Kanpur, Uttar Pradesh. The short case of the petitioner is that without any rhyme or reason, his salary was stopped with effect from the month of June, 2019. Also, his pending medical reimbursement, together with hospitalisation expenses, have been withheld and not paid. He says that salary of several other employees was also in arrears since the month of April, 2022, but salary of these employees in general was paid up to the month of March, 2022.

3. On the 29th July, 2021, an order was passed by the Chairman & Managing Director of the Corporation to the effect that there is an excess deposit of the employer's contribution to the provident fund of some employees, whose details have been given in Annexure 'A' and 'B' to the said order. In Annexure 'C', the name of employees, including the petitioner, finds mention, because, it is stated that it is their lapse that has resulted in excess deposit of the employer's contribution to the provident fund of the various employees. It is pointed out that the order dated 29.07.2021 passed by the Chairman & Managing Director of the Corporation provides that out of the employees mentioned in Annexure 'B', twenty have already retired and excess contribution in the sum of ₹10,27,434 paid to them is liable to be recovered. It is then averred in paragraph No. 8 that in paragraph No. 6(iv) of the order dated 29.07.2021, it is directed as follows :

The dues of the employees identified by CVO, NTC as listed in Annexure-C responsible for above lapses and financial loss to company, will not be paid till further order.

4. The petitioner's case is that the order passed by the Chairman & Managing Director does not provide for withholding of salary. To the contrary, it appears that the same operates to withhold release of dues such as post-retiral benefits of employees mentioned in Annexure 'C' to the said order. It is pleaded specifically that no determination of lapse in individual capacity of officers has yet been made and it is alleged that at the relevant time, the petitioner was posted as the Manager (Administration). The petitioner says that he had no concern with the financial activities of the Corporation, that were under the control of the Finance Department. There is reference to an order by the petitioner passed by the Officer on Special Duty2 of the Corporation for release of salary in accordance with a letter of the Ministry of Textiles dated 19.06.2023 up to 31.03.2022 to the eligible employees, subject to forfeiting advance, penal rent charges and recoveries, if any, from their pending salary. The said order is also on record. It is averred in paragraph No. 12 that in compliance with the OSD's order dated 20.06.2023, the salary of several employees was released up to the month March, 2023, but the petitioner's salary has not been paid till date. After a lapse of 29 months since the order dated 29.07.2021 was made, a charge-sheet has been issued to the petitioner on 22.12.2023 with the Article of Charge No. 1 providing that while the petitioner was working with the Corporation as a Manager with effect from 07.04.2010 to 17.12.2017, it was found that excess employer's share was contributed to the Employees' Provident Fund3 without following the EPF guidelines for the Public Sector Undertakings. The excess employer's contribution was deposited in the EPF account of several employees. The charge says that the details of such employees have already been given in the order dated 29.07.2021. The charge-sheet goes on to say that the petitioner was not diligent in his work, despite holding charge of the Administrative Department.

5. The petitioner submitted a reply to the charge-sheet on 01.01.2024, denying the charges on the ground that payment of employer's EPF contribution was processed by the then Head of the Finance Department, and not the petitioner. The employees concerned, in whose EPF account, more than the due share of the employer was deposited, had not taken the petitioner's approval, clarification or sanction. Therefore, there would be no responsibility in this regard for the petitioner. The petitioner refers to a number of representations in paragraph No. 16 of the writ petition, that he made for the release of his salary and other dues, but, in vain. The petitioner's further case is that he has not been suspended or terminated from service. He is continuously working and discharging his duties as a Manager (Liaison) of the Corporation at Kanpur. He has not been restrained from discharging his duties, but his salary has not been paid or the medical reimbursement. It is emphasised that the order dated 29.07.2021 passed by the Chairman & Managing Director of the Corporation, withholding dues of employees mentioned in Annexure 'C' to the order, is not an order for stopping the salary, as no such order could ever be passed.

6. Aggrieved by the non-payment of his salary, the petitioner has instituted the present petition under Article 226 of the Constitution.

7. A notice of motion was issued on 02.09.2024. On 25.10.2024, a counter affidavit was filed on behalf of respondent Nos. 2 and 3. The matter was adjourned to 06.11.2024. On that date, when the writ petition came up, a rejoinder affidavit was filed by the petitioner. The parties having exchanged affidavits, the petition was admitted to hearing, which proceeded forthwith. Judgment was reserved.

8. Heard Mr. Hari Narayan Singh, learned Senior Advocate assisted by Mr. Pranjal Singh, learned Counsel for the petitioner and Mr. Sanjay Kumar Om, learned Counsel appearing for respondent Nos. 2 and 3.

9. Upon hearing learned Counsel for parties and perusing the record, what we find is that it is not the Corporation's case that in the inquiry initiated against the petitioner, he has been found guilty of depositing or causing the deposit of the employer's share of the EPF in excess. Guilt, if proved, would entail some punishment, and if not proved, would lead to exoneration. We also find that neither as a result of the inquiry or dehors the inquiry, is there any determination of the petitioner's liability for the loss occasioned to the Corporation, if any, on account of excess deposit of the employer's share to the EPF. The figure recoverable from the petitioner is also not liquidated or shown. It is all in the realm of uncertainty, if at all the petitioner has, in any way, been responsible for the alleged excess deposit. It is not the case of the petitioner in the rejoinder affidavit that the inquiry has come to its logical conclusion. At the same time, in the counter affidavit, there is no specific denial of the case in paragraph No. 10 of the writ petition that no determination of lapse in individual capacity of any officer has yet been made, or that the petitioner was posted as a Manager (Administration) at the relevant time, where, financial activities of the Corporation were the concern of the Finance Department. All that is said in paragraph No. 10 of the counter affidavit filed on behalf of respondent Nos. 2 and 3 is that it is incorrect to say that the financial activities were not his concern and it would be evident that he was responsible for the financial irregularities, according to the Chief Vigilance Officer's report. The Chief Vigilance Officer's report cannot fix responsibility for the petitioner. It can only arraign him, which has been done by issuing a charge-sheet. It is not in dispute that the inquiry has not come to its logical conclusion and fixed responsibility for the petitioner. The assertions in paragraph No. 17 of the writ petition to the effect that the petitioner has not been suspended from service or his service terminated, has not been denied. However, the part of the assertion that there is no order passed to stop his salary and reimbursement of the medical expenses and hospitalisation charges is disputed. It is said that vide Office Order dated 29.07.2021, the Corporation have withheld the petitioner's dues/salaries as he discharged his duties negligently. It is also not denied that the petitioner has not been stopped from working and that he is discharging his duties with the Corporation.

10. This then being the position on facts, the law is very clear that for the mere arraignment of an employee and without conclusion of disciplinary proceedings, his salary cannot be withheld. There is no order fixing for the petitioner responsibility about the loss alleged by the Corporation on account of excess deposit of the employer's contribution to the EPF account of the employees. Salary and medical reimbursement are conditions attached to an employee's service, as in the case of the petitioner. Unless there is a lawful order of punishment that terminates the employer-employee relationship or directs recovery from his salary, the entire salary of an employee, who is working for the Corporation, cannot be stopped. If an order of recovery is passed, the entire salary cannot be stopped, though recovery may be made from post-retiral dues and in instalments from the salary.

11. As matters stand, with no determination of liability for the petitioner in point of fact and liquidation of that liability, the Corporation cannot withhold the petitioner's salary in the whimsical fashion they have done. Taking work from the petitioner and not paying his salary clearly amounts to the taking of begar, which is prohibited under Article 23 of the Constitution. Medical reimbursement, if due under the rules, also cannot be denied, so long as there is no determination of liability for the petitioner and liquidation of the sum. Both of these are not there. There is, therefore, no justification for withholding reimbursement of medical expenses or hospitalisation charges, of course, subject to verification of medical bills etc. in this regard. The action of the respondents in withholding the petitioner's salary, while he is working, clearly constitutes violation of Articles 14, 21 and 23 of the Constitution and the said action of the Corporation cannot be sustained.

12. In the result, this petition succeeds and stands allowed with costs, which we quantify at ₹15,000. A mandamus is issued to the respondents, ordering the Chairman & Managing Director of the Corporation to ensure payment of the petitioner's current salary forthwith. The entire arrears of salary due to the petitioner for the month of June, 2019 until date shall be paid within six weeks of the date of receipt of a copy of this order, together with 6% simple interest per annum. The medical reimbursement and hospitalisation expenditure bills pending with the respondents shall also be sanctioned and paid to the petitioner by the Chairman & Managing Director of the Corporation within six weeks of the date of service of a copy of this order upon the Chairman & Managing Director.

13. The Registrar (Compliance) is directed to communicate this order to the Chairman & Managing Director, The British India Corporation Limited, 11/6, Parwati Bagla Road, Kanpur Nagar, Uttar Pradesh through the learned Civil Judge (Senior Division), Kanpur Nagar.

Allahabad

May 05, 2025

I. Batabyal

(J.J. MUNIR)

JUDGE

Whether the order is speaking : Yes

Whether the order is reportable : No