Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana And Others on 25 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:062603
CWP-6683-2024 -1- 2024:PHHC:062603
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
256 CWP-6683-2024
Date of Decision :25.04.2024
Ashok Kumar ...Petitioner
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Rajender Singh Malik, Advocate for the petitioner.
Mr. Tapan Yadav, DAG, Haryana
***
Harsimran Singh Sethi, J. (Oral)
1. Present petition has been filed challenging the action of the
respondents in denying the benefit of gratuity to the petitioner on the ground
that the judicial proceedings were pending against the petitioner by passing
impugned order dated 05.05.2020 (Annexure P/5).
2. As per the averments made in the petition, the petitioner retired
from the post of Patwari on 31.03.2018. At the time when the petitioner
retired from service, he was facing FIR No.11 dated 14.01.2014 registered
under Sections 420, 409 120-B, 34 and 201 of the IPC at Police Station
Murthal, District Sonepat. On the basis of the said FIR, gratuity of the
petitioner has been withheld by the respondents by invoking Rule 81 of the
Haryana Civil Services (Pension) Rules 2016 (hereinafter referred to as
"2016 Rules')
3. Learned counsel for the petitioner submits that mere pendency
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of an FIR will not mean that judicial proceedings are pending especially,
when on the date when the petitioner retired from service even charges were
not framed in the criminal proceedings and charges were only framed after
the retirement of the petitioner hence, action of the respondents in
withholding the gratuity of the petitioner is arbitrary and illegal.
4. Learned counsel for the respondents submits that Section 81 of
the 2016 Rules gives power to the respondents to withhold the pensionary
benefits of the employee in case, the judicial proceedings are pending
against an employee and in the present case, on the day when the petitioner
retired from service, an FIR was registered against him and on the date when
the petitioner approached this Court, even the charges had already been
framed hence, action of the respondents in denying the benefit of gratuity to
the petitioner by passing impugned order dated 05.05.2020 is perfectly valid
and legal.
5. Learned counsel for the respondents further submits that
impugned order was passed in the year 2020 whereas, the said order has
been challenged by the petitioner in the year 2024 hence, the present petition
is liable to be dismissed being time barred and no interference is called for
qua the stale order.
6. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
7. It is a settled principle of law settled by the Full Bench of this
Court in A.S. Randhawa Vs. State of Punjab and others, 1997(3) SCT 468,
that an employee is entitled for the release of his/her pensionary benefits
within a period of two months of his/her retirement in case, there is no
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impediment and in case, the benefits are not released within the said
prescribed period, the employee concerned is entitled for the benefit of
interest. The relevant paragraph of said judgment is as under:-
"Since a government employee on his retirement
becomes immediately entitled to pension and
other benefits in terms of the Pension Rules, a
duty is simultaneously cast on the State to ensure
the disbursement of pension and other benefits to
the retirer in proper time. As to what is proper
time will depend on the facts and circumstances
of each case but normally it would not exceed
two months front the date of retirement which
time limit has been laid down by the Apex Court
in M. Padmanabhan Nair's case (supra). If the
State commits any default in the performance of
its duty thereby denying to the retiree the benefit
of the immediate use of his money, there is no
gainsaying the fact that he gets a right to be
compensated and, in our opinion, the only way
to compensate him is to pay him interest for the
period of delay on the amount as was due to him
on the date of his retirement."
8. Keeping in view the settled principle of law cited hereinbefore,
the respondents were under an obligation to release the pensionary benefits
of the petitioner within a period of 02 months of his retirement, which they
failed to do.
9. The question which arises for adjudication before this Court is
whether or not, on the date when the petitioner retired from service i.e.
31.03.2018, there was any impediment so s to give jurisdiction to the
respondents to withhold the pensionary benefits of the petitioner. Rule 81 of
the 2016 Rules is being cited to give jurisdiction to the respondents to
withhold the gratuity of the petitioner, which is as under:-
"81. Provisional pension where proceedings are
pending at the time of retirement.―
(1) (a) In respect of a Government employee against whom
departmental or judicial proceedings are pending at the
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time of retirement, the Principal Accountant General
(Accounts & Entitlement), Haryana shall authorize the
provisional pension equal to the maximum pension which
shall have been admissible on the basis of qualifying
service up to the date of retirement of the Government
employee, or if he was under suspension on the date of
retirement, upto the date of immediately preceding the date
on which he was placed under suspension.
(b) The provisional pension shall be authorised by the
Principal Accountant General (Accounts & Entitlement),
Haryana during the period commencing from the date of
retirement up to and including the date on which, after the
concluding of departmental or judicial proceedings. Final
orders are passed by the competent authority.
(c) No gratuity and commuted value of pension shall be
authorised to the Government employee until the
conclusion of the departmental or judicial proceedings and
issue of final orders thereon
Note.▬ This provision shall also be applicable where─
(i) the departmental proceedings under Rule 8 of Haryana
Civil Services (Punishment & Appeal) Rules, 2016
involving any financial loss to Government are pending at
the time of retirement.
(ii) any complaint against the Government employee
pertaining to his dishonesty is pending in State Vigilance
Bureau, Lok Ayukat or in any Government Investigation
Agency at the time of retirement.
(2) Payment of provisional pension made under sub-rule
(1) (a) shall be adjusted against final pensionary benefits
sanctioned to such Government employee upon conclusion
of such proceedings but no recovery shall be made where
the pension finally sanctioned is less than the provisional
pension or the pension is reduced or withheld either
permanently or for a specified period.
Note.▬ Where any complaint against a Government
employee is pending in the office of Lokayukat Haryana
shall be given pensionary benefits after consultation with
the Lokayukat."
10. Bare perusal of the above rule would show that where any
departmental or judicial proceedings are pending against an employee,
gratuity of the concerned employee can be withheld by the respondents.
11. In the present case, the question which arises is, as to whether
or not, on the date when the petitioner retired from service i.e. 31.03.2018
any judicial proceedings are stated to be pending against the petitioner.
12. The said question of law has already been decided by the
Hon'ble Supreme Court of India in Civil Appeal Nos.3018-21 of 1987
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Union of India vs. K.V. Jankiraman decided on 27.08.1991 with other
connected appeals, wherein, it has been held that in case of departmental
proceedings when charge sheet is issued, departmental proceedings can be
stated to be pending, similarly in the case of judicial proceedings when
charges have been framed against an employee, judicial proceedings can be
stated to be pending. Relevant paragraph of the said judgment is as under:-
"16. On the first question, viz., as to when for the
purposes of the sealed cover procedure the
disciplinary/criminal proceedings can be said to have
com- menced, the Full Bench of the Tribunal has
held that it is only when a charge-memo in a
disciplinary proceedings or a chargesheet in a
criminal prosecution is issued to the employee that it
can be said that the departmental proceed-
ings/criminal prosecution is initiated against the
employee. The sealed cover procedure is to be
resorted to only after the charge-memo/charge-sheet
is issued. The pendency of preliminary investigation
prior to that stage will not be sufficient to enable the
authorities to adopt the sealed cover procedure. We
are in agreement with the Tribunal on this point. The
contention advanced by the learned counsel for the
appellant-authorities that when there are serious
allegations and it takes time to collect necessary
evidence to prepare and issue charge-memo/charge-
sheet, it would not be in the interest of the purity of
administration to reward the employee with a
promotion, increment etc. does not impress us. The
acceptance of this contention would result in injustice
to the employees in many-cases. As has been the
experience so far, the preliminary investigations take
an inordinately long time and particularly when they
are initi- ated at the instance of the interested persons,
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they are kept pending deliberately. Many times they
never result in the issue of any
charge-memo/chargesheet. If the allegations are
serious and the authorities are keen in investigating
them, ordi- narily it slould not take much time to
collect the relevant evidence and finalise the charges.
What is further, if the charges are that serious, the
authorities have the power to suspend the employee
under the relevant rules, and the suspension by itself
permits a resort to the sealed cover procedure. The
authorities thus are not without a ,remedy. It was then
contended on behalf of the authorities that
conclusions nos. 1 and 4 of the Full Bench of the
Tribunal are inconsistent with each other. Those
conclusions are as follows:
"(1) consideration for promotion, selection grade,
crossing the efficiency bar or higher scale of pay
cannot be withheld merely on the ground of
pendency of a disciplinary or criminal proceedings
against an official;
( ) ................................................
(2).....................................
(3).....................................
(4) the sealed cover procedure can be resorted only
after a charge memo is served on the concerned
official or the charge sheet filed before the criminal
court and not before."
13. In the present case, on the date when the petitioner retired from
service i.e. 31.03.2018 though an FIR was registered against the petitioner
but charges had not been framed. It is a conceded position that charges
against the petitioner were framed in the year 2023 hence, on the date when
the petitioner retired from service, there was no impediment to withhold the
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pensionary benefits of the petitioner. Rule 81 of the 2016 rules has wrongly
been interpreted in the case of the petitioner by ignoring the settled principle
of law in settled by the Hon'ble Supreme Court of India K.V. Jankirman's
case (supra).
14. Keeping in view the above, as there was no impediment in the
release of the gratuity of the petitioner on the date when the petitioner
retired from service, action of the respondents in withholding the gratuity of
the petitioner is arbitrary and illegal and is contrary to the settled principle
of law settled by the Hon'ble Supreme Court of India in K.V. Jankiraman's
case (supra). Hence, the respondents are directed to release the gratuity of
the petitioner forthwith without any further delay.
15. Next question is, whether the petitioner is entitled for the grant
of interest on the said delayed release of the gratuity or not.
16. A Coordinate Bench of this Court in of J.S. Cheema Vs. State
of Haryana, 2014(13) RCR (Civil) 355, has held that where an amount
belonging to an employee, has been retained and used by the respondents,
upon the release of the said amount, on a later date, the interest has to be
given. The relevant paragraph of J.S. Cheema's case (supra) is as under: -
"The jurisprudential basis for grant of interest
is the fact that one person's money has been
used by somebody else. It is in that sense rent
for the usage of money. If the user is
compounded by any negligence on the part of
the person with whom the money is lying it may
result in higher rate because then it can also
include the component of damages (in the form
of interest). In the circumstances, even if there
is no negligence on the part of the State it
cannot be denied that money which rightly
belonged to the petitioner was in the custody of
the State and was being used by it."
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17. In the present case, gratuity of the petitioner has been retained
by the respondents without there being any impediment in the release of the
same. Hence, the petitioner is also held entitled for the grant of interest @
6% per annum on the said amount of gratuity from the date the same became
due i.e. 01.04.2018 till the actual payment is made.
18. As far as the argument of the learned counsel for the
respondents that impugned order was passed in the year 2020 and writ
petition was filed in the year 2024, it may be noticed that as per the settled
principle of law, claim for the pensionary benefits is a recurring cause and
no claim for the grant of pensionary benefits can be declined on the basis of
delay.
19. Keeping in view the above, present petition is allowed in the
above terms.
20. Civil miscellaneous application pending if any is also disposed
of.
April 25, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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