Calcutta High Court (Appellete Side)

Sri Sanjay Sengupta vs Union Of India & Ors on 20 April, 2022

05    20.04.2022
      Ct.15
                                   W.P.A. 19254 of 2017
rkd

                                      Sri Sanjay Sengupta
                                              -vs-
                                      Union of India & Ors.

                   Mr. Ayan Banerjee,
                   Ms. Debasree Dhamali,
                   Ms. Riya Ghosh
                                                            ....for the petitioner.

                   Mr. Soumya Majumder,
                   Mr. Partha Banerjee,
                   Mr. Saptarshi Mukherjee
                                                                  ....for the NTC.


                           Petitioner      was    a   Senior      Investigator

                   (Technical) in the Western Regional Office of

                   National Textile Corporation and was appointed on

                   26th February, 1973 and while discharging his duty

                   as   Deputy     Manager        (Sales)     a   disciplinary

                   proceeding was initiated against him on allegation

                   of causing pecuniary loss to the National Textile

                   Corporation, being the principal respondent. The

initiation of disciplinary proceeding on issuance of

charge sheet was questioned before this Court and

the same was set aside upon granting leave to the

respondent to initiate disciplinary proceeding de

novo if it is permissible in accordance with law.

However, pursuant to such leave granted by this

Court on the writ petition preferred by the

petitioner no subsequent disciplinary proceeding

was initiated against him. Pending initiation of

disciplinary proceeding petitioner was suspended

with effect from 22nd July, 1985 and on setting

aside the disciplinary proceeding by this Court he

was permitted to resume his duty and petitioner

was paid salary on resumption of his duty.

However, in connection with the criminal

proceeding which was pending before the CBI,

Special Court at Patna petitioner was taken into

judicial custody and subsequently he was released

on bail on 21st May, 1993. During the period when

petitioner remained in custody he was placed

under suspension and subsequently the

suspension order was withdrawn. Petitioner was

further allowed to discharge his duty and

subsequently superannuated on 30th September,

2008. Meanwhile, petitioner was convicted by the

CBI, Special Court at Patna and such order of CBI,

Special Court was carried in appeal before the High

Court at Patna and the order of sentence was

stayed by the High Court. The criminal appeal is

still pending before the High Court at Patna.

Petitioner is aggrieved due to denial of

release of leave encashment benefits and the

benefits which according to the petitioner is

payable as submitted by Mr. Banerjee, learned

advocate representing the petitioner. It has also

been submitted that during the period of

suspension petitioner was not paid incremental

benefits and which became subsequently payable

since by virtue of the order of this Court the

initiation of disciplinary proceeding was negated

which permitted the petitioner to resume his duty.

Petitioner has accordingly prayed for grant of such

incremental benefits.

It is also contended on behalf of the

petitioner by Mr. Banerjee that had there been

extension of benefits in favour of the petitioner in

terms of 6th Pay Commission recommendation there

would have been upward revision of salary which

would have benefited the petitioner financially that

has not been done till date.

While arguing the case on behalf of the

petitioner reliance has been placed on the order

passed by a coordinate Bench dated 20th January,

2015 passed on two writ petitions one filed by the

petitioner and another by the respondent. In these

two writ petitions the issue was implemented of the

order of the Appellate Authority passed under the

relevant provisions of Payment of Gratuity Act,

1972 wherein it was decided albeit pendency of the

criminal appeal before the High Court at Patna that

the petitioner was entitled to receive gratuity

amount along with interest.

The coordinate Bench by the order dated

20th January, 2015 after considering the rival

contentions of the parties to this writ petition

directed the respondent authorities to release the

gratuity in favour of the petitioner along with

necessary interest as directed by the Appellate

Authority under the Payment of Gratuity Act, 1972.

It is also contended on behalf of the petitioner that

argument was advanced on behalf of the

respondent that in view of pendency of the criminal

proceeding the gratuity amount is not payable to

the petitioner but the same was negated by the

coordinate Bench.

In addition thereto on behalf of the

petitioner reliance has also been placed on the

judgment of the Hon'ble Apex Court, reported in

(2013) 12 SCC 210 (State of Jharkhand & Ors. -vs-

Jitendra Kumar Srivastava & Anr.), paragraphs 2,

8, 10, 11, 16 & 17. Upon placing reliance on this

judgment it is also contended that in absence of

specific statutory rules empowering the employer to

withhold or withdraw retiral dues including leave

encashment it is not open to the employer to deny

such benefits at the time of superannuation of the

petitioner even during the pendency of the criminal

proceeding.

It is also submitted on behalf of the

petitioner that he is entitled to get the benefit

under the recommendation of 6th Pay Commission

which has not been extended in his favour,

however similarly circumstanced other

employees/officers are in receipt for such benefits.

Therefore, prayer has also been made for releasing

the benefits under the recommendation of the 6th

Pay Commission in favour of the petitioner

forthwith.

Per contra, Mr. Majumder, learned advocate

representing the respondent has submitted that the

issue relating to payment of gratuity in terms of the

order of the coordinate Bench dated 20th January,

2015 ought not to be equated with release of leave

encashment benefits as well as benefits, if at all

payable, in terms of the 6th Pay Commission

recommendation since release of benefits of leave

encashment arises out of contractual obligation of

the employer therefore the writ of mandamus

cannot be issued for granting such relief to the

petitioner.

It has further been submitted on behalf of

the respondent that still the criminal appeal is

pending before the High Court at Patna and if the

said appeal fails in that event the alleged loss

which has been caused to the employer cannot be

recovered in the event during pendency of this

criminal appeal the claimed benefits are released. It

is submitted that simply sentence is stayed in

connection with the appeal preferred by the

petitioner against the order of conviction passed by

the CBI, Special Court therefore the issue remains

to be decided finally by the High Court at Patna on

the said criminal appeal.

This Court while hearing Mr. Majumder has

posed a question whether there is any statutory

rules or provisions operating in the field which

empowers the respondent to withdraw leave

encashment benefits and benefits which were

payable in terms of 6th Pay Commission

recommendation or not. This Court does not get

any satisfactory answer with regard to the

existence of such rules but it has been submitted

on behalf of the respondent that the benefits of the

recommendation of 6th Pay Commission may not be

payable to the petitioner if certain conditions are

not fulfilled in this regard.

It has also been submitted that difference of

salary is only payable to the petitioner in the event

recommendation of 6th Pay Commission has been

implemented in connection with the service of the

petitioner upon upward revision of his salary but

unless and until a final decision is taken in this

regard question of sanctioning enhanced salary

with retrospective effect does not arise.

Mr. Majumder has also made an endeavour

to distinguish the decision of the coordinate Bench

dated 20th January, 2015 on the score that such

decision of the coordinate Bench pertains to release

of gratuity in terms of the relevant provisions of the

Payment of Gratuity Act, 1972. In the present case

since the prayer has made for release of leave

encashment benefits, the benefit of such decision of

the coordinate Bench dated 20th January, 2015

may not be extended. It is also contended on behalf

of the petitioner that the ratio of the judgment as

reported in (2013) 12 SCC, 210 of the Hon'ble Apex

Court is not applicable in the present case since

such relief pertains to payment of pension and

gratuity and it cannot be applied in the case of

release of leave encashment benefits in fvaour of

the employer.

This Court has considered the rival

submissions made on behalf of the parties and

perused documents available on record. Since the

petitioner has already superannuated on 30th

September, 2008 the terminal benefits are payable

to the petitioner in terms of the extant rules of the

respondent. Previously dispute arose with regard to

the payment of gratuity amount in favour of the

petitioner which the respondent authority thought

it fit to withhold the same in view of pendency of

the criminal proceeding before the High Court at

Patna against the petitioner.

Ultimately, the matter travelled before the

coordinate Bench and issue has been decided

succinctly that in absence of any rules empowering

the respondent to withhold or withdraw gratuity

amount it is not open to the respondent to deny

such benefits on the plea of pendency of the

criminal proceeding. The said decision of the

coordinate Bench has not been appealed against by

the respondent and it has attained finality in the

meantime.

In the present case though Court is not

considering the payment of gratuity which has

already been settled by virtue of the decision of the

coordinate Bench dated 20th January, 2015 but the

Court has to consider the entitlement of the

petitioner to receive leave encashment benefits,

benefits relating to recommendation of 6th Pay

Commission and the incremental benefits which

were stopped during the suspension period of the

petitioner.

In consideration of the view expressed by

the coordinate Bench in the order dated 20th

January, 2015, it appears to this Court on posing

query to the learned advocate representing the

respondent that there is no such rule which

empowers the respondent to deny the benefit of

leave encashment and benefits relating to 6th Pay

Commission Recommendation and incremental

benefits which were payable to the petitioner

during the period of suspension in view of

pendency of the criminal proceeding. Therefore,

this Court finds it fit to apply the view expressed by

the coordinate Bench in the order dated 20th

January, 2015 while deciding the issue of release of

gratuity in favour of the petitioner. Had there been

existence of any appropriate statutory provisions

empowering the respondent to deny such benefits

in view of pendency of the criminal proceedings

question would have been different. In the present

case in absence of any such statutory provisions,

this Court does not find any legal impediment in

the matter of releasing leave encashment benefits

and other aforementioned benefits to the petitioner.

In this regard reliance has also been placed on the

judgment of the Hon'ble Apex Court in State of

Jharkhand (supra). Paragraph 16 of the said

judgment runs infra:-

"16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under:

                   "300-A.         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."

(emphasis supplied)

In view of above discussion, this Court

finds it apposite to direct the concerned respondent

authorities to release the leave encashment benefits

to the petitioner forthwith but not later than eight

weeks from the date of communication of this

order.

Now question comes with regard to

entitlement of the petitioner to receive benefits

under the 6th Pay Commission recommendation. It

is contended on behalf of the respondent by filing

an affidavit there are certain conditions which are

required to be fulfilled for getting such benefits. At

this stage, Court finds it fit not to enter into this

aspect but to remand the issue to the General

Manager (HR/LEGAL) of National Textile

Corporation Limited being the respondent no.4 for

taking appropriate decision.