O.P.Nasa & Anr. vs Delhi Urban Shelter Improvement ...
2013 Latest Caselaw 4034 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6633/2011

%                                               9th September, 2013

O.P.NASA & ANR.                                     ......Petitioners
                          Through:       Mr. Atul Kumar, Adv.


                          VERSUS

DELHI URBAN SHELTER IMPROVEMENT BOARD ...... Respondent

Through: Mr. Parvinder Chauhan and Mr. Nishant Prateek, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, two reliefs are claimed. The first relief is as

regards the challenge to the suspension order dated 29.9.2010. The second

relief pertains to claim of retirement benefits such as gratuity, pension,

earned leave encashment etc.

2. So far as the first prayer is concerned, counsel for the petitioner does

not press the same.

3. So far as the second relief is concerned, the same is fully covered by

the recent judgment of the Supreme Court in the case of State of Jharkhand

& Ors. Vs. Jitendra Kumar Srivastava & Anr. in Civil Appeal No.

6770/2013 decided on 14.8.2013. In the aforesaid judgment of Jitendra

Kumar Srivastava (supra) Supreme Court has held as under:-

(i) Terminal benefits whether they be pension or gratuity or leave

encashment are in the nature of 'property'.

(ii) Such terminal benefits etc can only be withheld and appropriated by

the government after the decision of the departmental authorities or a

judgment of a court of law i.e during the pendency of departmental

proceedings and court proceedings, the government cannot withhold and

appropriate the terminal benefits etc which are payable to employees.

(iii) The only reason because of which government can withhold and

appropriate terminal benefits etc is if there is a rule of the organization or a

statutory rule which entitles the government during the pendency of

proceedings not to pay the terminal benefits etc to the employee.

4. It is the common case of the parties that the respondent

no.1/employer is governed by CCS (Pension) Rules. As per Rule 9 of the

said CCS(Pension) Rules, and which is similar to Rule 43(b) of the Bihar

Pension Rules which the Supreme Court has dealt with in the case of

Jitendra Kumar Srivastava (supra), the employer cannot withhold or

appropriate terminal benefits etc. unless a final order is passed in the

departmental proceedings or by the court before whom the complaint is

pending.

5. Since in the present case the departmental proceedings are not

concluded and no final Court order has been passed, the ratio of Jitendra

Kumar Srivastava (supra) will be squarely applicable.

6. In view of the above, the writ petition is allowed and the

respondent is directed to pay terminal benefits, leave encashment amount

and other amounts which would have become payable to the petitioner on

his retirement. It is however clarified that in case a final order is passed in a

departmental proceeding whereby it is held not to pay terminal benefits etc.

to the employee then the respondent is entitled to recovery of any amounts

from the petitioners, then in that case, the respondent can at that stage

proceed in accordance with law to recover its dues.

SEPTEMBER 09, 2013                                 VALMIKI J. MEHTA, J
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