Madras High Court
J.Sreedharan vs The Additional Commissioner ... on 3 March, 2021
W.P.(MD)No.198 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.03.2021
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD)No.198 of 2021
J.Sreedharan : Petitioner
Vs.
1.The Additional Commissioner (Administration),
Office of the Principal Secretary /
Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai – 600 005.
2.The Joint Commissioner (Commercial Taxes),
Trichy Division, Trichy.
3.The Deputy Commissioner (Commercial Taxes),
Pudukottai District, Pudukottai.
4.The Sub Treasury Officer,
Sub Treasury Office,
Taluk Office Building, Pattukottai. : Respondents
PRAYER:- Petition filed under Article 226 of the Constitution of India seeking
a Writ of Certiorarified Mandamus, to call for the records pertaining to the
impugned order passed by the first respondent vide proceedings in
Ref.No.E1/12122/2016 dated 20.10.2020 and quash the same and consequently
to direct the first and fourth respondents to disburse the monetary benefits such
as earned leave and special provident fund to the petitioner as per the order of
the third respondent in Na.Ka.No.3434/2016/A1 dated 11.12.2019 with interest
within a time fixed by this Court.
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W.P.(MD)No.198 of 2021
For Petitioner :Mr.S.Anwar Sameem
For Respondents :Mrs.J.Padmavathi Devi
****
ORDER
In view of the petitioner's involvement in a criminal case, the monetary
benefits and retirement benefits of the petitioner were withheld. When the
petitioner herein has sought for disbursal of the monetary benefits, insofar as it
relates to Leave Salary and Special Provident Fund, this Court by order, dated
05.02.2019 passed in W.P.(MD)No.4349 of 2015, directed the respondents to
consider the petitioner's request for such disbursement, pursuant to which, the
present impugned order, dated 20.10.2020 has been passed, rejecting the
petitioner's request on the ground that, as per the instructions laid down in
Fundamental Rule 56(1)(c), which states that the petitioner's service rights will
be freezed after his superannuation and only after the finalisation of the criminal
case/departmental proceedings and regulation of the suspension period, he
would be permitted for encashment of Earned Leave and allied benefits.
2.The learned Special Government Pleader placed reliance on the
averments made in the impugned order and submitted that in view of the
pendency of the criminal proceedings and the guidelines issued in Fundamental
Rules 56(1)(c), the petitioner's claim cannot be entertained.
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W.P.(MD)No.198 of 2021
3.Such a reasoning in the impugned order cannot be sustained, in view of
the various decisions rendered by this Court that the department would not be
entitled to withhold the Special Provident Fund and encashment of Earned
Leave. In one such decision of the Honourable Division Bench of this Court in
the case of the Secretary to Government, Handlooms, Handicrafts, Textiles
and Khadi Department vs G.Devadhas, passed in W.A.No.71 of 2017, the ratio
was held as under:
5.It appears that while the respondent was in service as Under
Secretary to Government, due to certain irregularities committed by him,
he was kept under suspension and subsistence allowance has been paid
to him. In the meanwhile, the respondent retired from service on
30.06.2012 and thereafter, in view of the departmental proceedings,
provisional pension alone was paid to him from 01.07.2012. In view of
non-payment of General Provident Fund, Special Provident Fund and
Encashment of Earned Leave/Private Affairs, the respondent has sent a
representation requesting to pay the same and the said representation
was rejected by the department. Challenging the same, the respondent
came up before this Court by filing the above writ petition and the said
writ petition was allowed by the learned single Judge. Aggrieved over
the said order, the State has preferred the present writ appeal.
6. Learned counsel appearing for the respondent has relied on a
decision of the Jharkand High Court reported in 2007 (2) BLJR 2847
[Dr.Dudh Nath Pandey Vs. The State of Jharkhand], wherein, it is held
that the Government has no power to withhold Gratuity and pension
during the pendency of the departmental proceeding or criminal
proceeding. It is further held that it does not give any power to withhold
Leave Encashment at any stage either prior to the proceeding or after
conclusion of the proceeding.
7. As far as the case in hand is concerned, only subsistence
allowance has been paid to the respondent till 30.06.2012 and
subsequently, provisional pension has been paid from 01.07.2012. In
view of the above referred decision, we are of the view that the
disciplinary proceedings initiated against the respondent may continue.
However, since the appellant has got no power to withhold General
Provident Fund, Special Provident Fund and Encashment of Earned
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W.P.(MD)No.198 of 2021
Leave/Private Affairs, the appellant is directed to settle the same to the
respondent, within a period of two months from the date of receipt of
copy of this judgment.”
4.The aforesaid decision is self explanatory, as such the respondents will
not be justified in refusing the disbursement of the petitioner's encashment of
Earned Leave and Special Provident Fund.
5.Accordingly, the impugned order, dated 20.10.2020 is quashed.
Consequently, there will be a direction to the first respondent herein to disburse
the Earned Leave Salary and Special Provident Fund to the petitioner forthwith,
in any event, within a period of six weeks from the date of receipt of a copy of
this order.
6.The Writ Petition is allowed accordingly. No costs.
Index : Yes/No 03.03.2021
cmr
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W.P.(MD)No.198 of 2021
To
1.The Additional Commissioner (Administration),
Office of the Principal Secretary /
Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai – 600 005.
2.The Joint Commissioner (Commercial Taxes),
Trichy Division, Trichy.
3.The Deputy Commissioner (Commercial Taxes),
Pudukottai District, Pudukottai.
4.The Sub Treasury Officer,
Sub Treasury Office,
Taluk Office Building, Pattukottai.
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W.P.(MD)No.198 of 2021
M.S.RAMESH, J.
cmr
W.P.(MD)No.198 of 2021
03.03.2021
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