Punjab-Haryana High Court
Sh. R.D.Kamboj vs State Of Haryana & Anr on 1 September, 2023
Neutral Citation No:=2023:PHHC:114839
CWP-16723-1998 (O&M) . 2023:PHHC:114839
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
323 CWP-16723-1998 (O&M)
Date of Decision :-01.09.2023
R.D. Kamboj ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: None for the petitioner.
Mr. Harish Rathee, Senior DAG, Haryana.
Ms. Himani Jian, Advocate for Mr. H.S. Oberoi, Advocate
for applicant-respondent No.2.
***
Harsimran Singh Sethi, J. (Oral)
Present petition has been filed by the petitioner seeking interest
on the delayed release of the amount of gratuity. No one appears on behalf
of the petitioner, hence, present petition is being decided on the basis of the
facts/pleadings already on record.
As per the petition, the petitioner retired on attaining the age of
superannuation on 30.04.1997 but the payment of gratuity was made to the
petitioner much after the said date due to which fact, a claim has been raised
for the grant of interest on the said delayed release of payment of gratuity.
In reply to the petition, the respondents have stated that at the
time when the petitioner retired from service, a chargesheet was pending
against the petitioner which was issued to him on 17.05.1996 and as the said
charge sheet was pending consideration with the respondent-department,
payment of gratuity was withheld by them keeping in view the rules
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governing the service. As per the reply, the petitioner made a request to the
respondent-department that in case, any order is passed in the enquiry
proceedings, he will abide by the same and hence, by taking a lenient view,
his gratuity was released by the respondent-department in the month of
October, 1997 despite the pendency of the disciplinary proceedings against
him even at that stage.
Keeping in view the fact that the disciplinary proceeding were
pending against the petitioner on the date when he retired from service and
was pending even on the date when the payment of gratuity was released on
the request of the petitioner, the claim of the petitioner for the grant of
interest on the delayed release of the payment of gratuity is not justifiable.
As per the rules governing the service and the settled principle of law settled
by the Full Bench of this Court in LPA No.113-2012 titled as Punjab State
Civil Supplies Corporation Limited vs. Pyare Lal decided on 11.08.2014 in
case at the time of retirement, the disciplinary proceeding are pending
against an employee, the respondent-department is well within its
jurisdiction to withhold the amount of gratuity. The relevant paragraphs of
the said judgment are as under:-
09. In view of thereof, we find that the ratio laid down in the
said judgments cannot be extended in respect of the claim of leave
encashment governed by the Punjab Civil Service Rules or the
analogous Rules. In fact, in terms of the conclusion (i) in para
No.81 of the judgment in Dr. Ishar Singh's case (supra), the State
Government has no right to withhold or postpone pension or the
payment on account of commutation of pension. The State is
bound to release 100% pension at the time of superannuation. It is
conclusion No. (ii) which permits the Government to withhold
gratuity or other rerital benefits. The pension is to be paid, may be
provisionally, during the pendency of the enquiry. Similarly,
conclusion (vii) provides recovery of Government dues from
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gratuity and other retiral dues. Therefore, the judgment in Dr.
Ishar Singh's case (supra), is applicable only DALBIR SINGH
2014.08.12 12:57 I attest to the accuracy of this document High
Court Chandigarh LPA No. 113 of 2012 (O&M) [6] in respect of
payment of provisional pension pending disciplinary or criminal
proceedings and has no applicability in respect of withholding of
other retrial benefits. The payment or withholding of other retrial
benefits is subject matter of applicable Rules, if any. Since in the
present case, Rule 8.21(aa) provides for withholding of leave
encashment, the same cannot be released to an employee, as the
amount, if any, could be recovered from such benefits.
10. In fact the above view gets support from the recent Supreme
Court Judgment reported as State of Jharkhand v. Jitendra Kumar
Srivastava, (2013) 12 SCC 210, wherein the court held as under:-
"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.
17. It hardly needs to be emphasised that the executive
instructions are not having statutory character and, therefore,
cannot be termed as "law" within the meaning of the
aforesaid Article 300-A. On the basis of such a circular, which is
not having force of law, the appellant cannot withhold even a part
of pension or gratuity. As we noticed above, so far as statutory
Rules are concerned, there is no provision for withholding
pension or gratuity in the given situation.
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11. In view thereof, since the right to withhold leave
encashment is part of the Statutory Rules, it satisfies the test laid
down by the Supreme Court. Thus, we approve the judgment in
Harbhajan Singh Riar's case while overruling the view taken in
Gurdial Singh's case (supra). The judgments in two other cases
i.e. B.S. Gupta's case (supra) and Dayal Singh's case (supra),
pertain to Haryana. Since, the Rules applicable to Haryana, have
not been brought to our notice, we leave the said matter open, to
be adjudicated at an appropriate stage."
Keeping in view the above, no ground is made out for
interference by this Court.
Dismissed.
Civil miscellaneous application pending, if any, is disposed of.
September 01, 2023 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:114839
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