Punjab-Haryana High Court
Gobind Ram Verma vs State Of Punjab And Others on 12 March, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:035377
CWP-19954-2018 (O&M) 1 2024:PHHC:035377
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
1. CWP-19954-2018 (O&M)
Gobind Ram Verma ... Petitioner
Versus
State of Punjab and others ... Respondents
2. CWP-19957-2018 (O&M)
Manjit Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
3. CWP-20012-2018 (O&M)
Sewa Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
4. CWP-20016-2018 (O&M)
Ram Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
5. CWP-20059-2018
Nahar Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
6. CWP-19175-2018 (O&M)
Sudarshan Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
Date of decision : 12.03.2024
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Neutral Citation No:=2024:PHHC:035377
CWP-19954-2018 (O&M) 2 2024:PHHC:035377
CORAM: HON'BLE MR.JUSTICE VIKAS BAHL
Present: Mr.Gurcharan Dass, Advocate
for the petitioners in all the petitions.
Mr.T.P.S. Chawla, Sr. DAG, Punjab.
VIKAS BAHL, J.(ORAL)
1. This order will dispose of six writ petitions i.e., CWP-19954-
2018 filed by Gobind Ram Verma, CWP-19957-2018 filed by Manjit Singh,
CWP-20012-2018 filed by Sewa Singh, CWP-20016-2018 filed by Ram
Singh, CWP-20059-2018 filed by Nahar Singh and CWP-19175-2018 filed
by Sudarshan Singh as common questions of law and fact arise in all the six
writ petitions.
2. Prayer in all the writ petitions is for issuance of a writ in the
nature of mandamus directing the respondents to pay the interest @ 10% per
annum from the date of gratuity was payable till the date of its payment.
3. The undisputed facts in the present case are that all the
petitioners had joined the services in the Public Works Department, Punjab
and had retired in the period between 2005-08 but their gratuity was
sanctioned and paid in the year(s) 2016-17, after much delay. The sole
reason for non-release of the gratuity was the pendency of FIR no.9 dated
29.06.2004 registered under Sections 406, 420, 467, 468, 471, 120-B IPC
and Sections 7, 12, 13(1) A.C.D. read with Section 13(2) of the Prevention
of Corruption Act, 1988 at Police Station Vigilance Bureau, Flying Squad-I,
Mohali. It is not in dispute that on the date when the petitioners retired, no
challan / report under Section 173 Cr.P.C. had been presented before the
criminal Court and no judicial proceedings were pending. Admittedly, no
departmental proceedings were initiated against any of the petitioners and
even with respect to the FIR an untraced report was submitted on
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04.07.2014 by the Vigilance Bureau which was accepted by the Judge,
Special Court, S.A.S. Nagar (Mohali) vide order dated 05.05.2015 (which
has been annexed as Annexure P-2 with each of the six writ petitions). A
perusal of the said order dated 05.05.2015 would show that after the
untraced report had been presented, Darshan Singh, Superintendent of
Police had appeared and had submitted that he had no objection in case the
same was accepted and even the complainant had appeared and had also
given "no objection" to the acceptance of the said untraced report. It was
observed by the Judge, Special Court, S.A.S. Nagar (Mohali) while passing
the order dated 05.05.2015, that during the investigation of the case, the
Investigating Officer had found no material with regard to purchase of
furnace oil by the concerns dealing in furnace oil and had observed that it
had been opined by the Investigating Officer that when Bitumen was not
purchased by the department, then as to how the official(s) could sell the
said Bitumen to anyone. The necessary details with report to each petitioner
are detailed hereinbelow in the form of a chart:-
Sr. CWP Name of Date of Amount of FIR no., date and Date of
No. no. petitioner retirement / gratuity, dateof offence order
designation sanction / passed
payment by ld.
Judge
1 19175 of Sudarshan 31.1.2006 3,85,440/- FIR no.09 dated 05/05/15
2018 Singh Retired as Sanctioned on 29.6.2004
J.E. 24.6.2016 Paid registered under
on 10.10.2016 Sections 406, 420,
467, 468, 471,
120-B IPC and 7,
12, 13(1) A.C.(D)
read with 13(2) of
the Prevention of
Corruption Act,
P. S. Vigilance
Bureau, Flying
Squad-I at Mohali
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Sr. CWP Name of Date of Amount of FIR no., date and Date of
No. no. petitioner retirement / gratuity, dateof offence order
designation sanction / passed
payment by ld.
Judge
2 19954 of Gobind 28.2.2006 3,95,835/- -do- -do-
2018 Ram Retired as sanctioned on
Verma A.E. 31.3.2017 and
paid on
16.5.2017
3 19957 of Manjit 30.9.2008 5,82,434/- -do- -do-
2018 Singh Retired as sanctioned on
SDE 16.12.2016,
received on
19.6.2017
4 20012 of Sewa 31.12.2005 3,49,190/- -do- -do-
2018 Singh Retired as sanctioned on
A.E. 29.8.2016, paid
on 20.12.2016
5 20016 of Ram 31.05.2008 5,62,353/- -do- -do-
2018 Singh Retired as sanctioned on
SDE 16.9.2016, paid
on 5.12.2016
6 20059 of Nahar 31.12.2007 4,63,122/- -do- -do-
2018 Singh Retired as sanctioned on
Superintend 28.4.2016
ent
4. It is the case of the petitioners that since no judicial
proceedings were pending, thus, at the time of retirement, the respondents
could not have withheld the gratuity muchless for a period of more than 10
years and since they had illegally withheld the gratuity, thus, they were duty
bound to pay interest on the same.
5. On the other hand, learned State counsel has submitted that
since the FIR has been registered against all the petitioners prior to the date
of retirement, thus, till the time the proceedings emanating from the FIR
were not finally concluded, the respondent department was entitled to
withhold the release of gratuity and when the untraced report was submitted
in the year 2015, the process was started and the amount of gratuity was
released in the years 2016-17 and thus, the State cannot be faulted and all
the petitions deserve to be dismissed on the said ground. Reference has
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been made to Rule 9.14 (c) of the Punjab Civil Services Rules, Vol.II in the
said regard.
6. This Court has heard the learned counsel for the parties and has
perused the paper book.
7. The question that arises for consideration and determination
before this Court in the present cases is as to whether the action of the
respondents in withholding the gratuity of the petitioners solely on account
of pendency of FIR no.9 dated 29.06.2004 in which no challan / report
under Section 173 Cr.P.C. had been filed on the date when the petitioners
had retired, was justified or not.
8. A similar question arose before a Coordinate Bench of this
Court and the Coordinate Bench of this Court vide judgment dated
09.02.2024 passed in CWP-28933-2022 titled as "Baljit Singh vs. State of
Punjab and others" after taking into consideration the law laid down by the
Hon'ble Supreme Court in Union of India vs. K.V. Jankiraman reported as
1991(3) SCT 317 had observed that the criminal proceedings would be
deemed to have been initiated when challan is presented in the criminal
proceedings and departmental proceedings are deemed to have been
initiated after the charge memo is issued to the delinquent employee. It was
also observed that the Coordinate Bench of this Court in CWP-3567-2006
titled as "Atam Bodh Sharma vs. State of Haryana and others" decided on
09.10.2006 had observed that mere pendency of an FIR without there being
any challan presented in the said FIR on the date of the retirement of the
employee, would not give any right to the department to withhold the
pensionary benefits of the employee and the Court in Baljit Singh's case
(supra) had after considering the entire matter, allowed the writ petition and
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directed the respondent authorities to pay interest @ 6% per annum to the
petitioner therein from the date the gratuity became due till its payment.
The relevant portion of the said judgment in Baljit Singh's case (supra) is
reproduced hereinbelow:-
"7. The only question which arises for determination before this Court
in the present writ petition is whether the action of the respondents in
withholding the gratuity of the petitioner keeping in view the pendency of
the FIR No.5 dated 12.07.2011 is justified or not?
8. For deciding the said issue, it is to be considered that on the date
of the retirement of the petitioner i.e. 31.03.2012, whether any criminal
proceedings were pending against the petitioner so as to give the right to
the respondents to withhold the payment of gratuity of the petitioner.
9. It is an admitted case of the parties that FIR No.5 dated
12.07.2011, was registered against the petitioner, which was pending at
the time of his retirement but no challan was presented prior to the
retirement of the petitioner. Perusal of order dated 13.01.2021 passed by
the learned Special Judge, Patiala, would show that cancellation report in
the said FIR was filed originally on 11.09.2014, however, vide order dated
09.10.2014 the said cancellation report was declined and the case was
sent back for further investigation. Subsequently, fresh cancellation report
was submitted, which was again returned unaccepted vide order dated
09.03.2018 by the learned Special Judge, Patiala, with direction to
conduct further probe. Again, the cancellation report was submitted
wherein it was stated that contractor Sudhir Kumar had made payment for
chlorine purchased by him from Una through cash and there was no bar
to the making of said payment by cash and finally the third cancellation
report was accepted by the learned Special Judge, Patiala, vide order
dated 13.01.2021. That being so, on the date, when the petitioner retired
after attaining the age of superannuation, only FIR No.5 dated 12.07.2011
was pending which was being investigated. The question that can mere
pendency of an FIR on the date of retirement gives right to the
respondents to withhold the retiral benefits on the ground that the
criminal proceedings are pending, is required to be decided in the present
writ petition.
10. Hon'ble Supreme Court in Union of India v. K.V. Jankiraman
1991(3) SCT 317 decided the question of law as to when a proceedings
are deemed to be pending against an employee in respect of the
departmental inquiry as well as in respect of the criminal proceedings so
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as to give right to the department to withhold the benefits. Hon'ble
Supreme Court held that it is only when a charge-sheet is served upon a
delinquent employee during the departmental proceedings, the
departmental inquiry is stated to be pending against an employee, which
will give right to the respondents to take an action against the employee in
accordance with law. Similarly, where a Challan/charge-sheet has been
presented against a person in the criminal proceedings, the criminal
proceedings are to be treated as pending against the said person so as to
give jurisdiction to the employer to take action against an employee. The
relevant paragraph of the judgment in K.V. Jankiraman's case (supra) 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 commenced, the Full Bench of the Tribunal has
held that it is only when a charge-memo in a disciplinary
proceedings or a charge-sheet in a criminal prosecution is issued
to the employee that it can be said that the departmental
proceedings/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 initiated at
the instance of the interested persons, they are kept pending
deliberately. Many times they never result in the issue of any
charge memo/charge-sheet. If the allegations are serious and the
authorities are keen in investigating them, ordinarily it would 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
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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."
11. In the present case, it is admitted by the learned counsel for
respondent No.3 that only FIR No.5 dated 12.07.2011 was pending
against the petitioner at the time of his retirement, which was under
investigation and three cancellation reports were filed in the Court of
learned Special Judge, Patiala, and finally third cancellation report was
accepted on 30.01.2021. Therefore, it cannot be said that any criminal
proceedings were pending against the petitioner on the date of his
retirement so as to give right to the respondent/State to withhold the
gratuity of the petitioner.
12. This Court while deciding CWP No.3567 of 2006 decided on
09.10.2006, titled as Atam Bodh Sharma v. State of Haryana and
Others, held that mere pendency of an FIR without there being any
Challan presented in the said FIR on the date of the retirement, there is no
jurisdiction with the department to withhold the pensionary benefits of an
employee.
xxx xxx xxx
13. In the present case, only an FIR was pending against the petitioner
and no challan had been presented against him upto the date of his
retirement or even thereafter also, therefore, the claim of the petitioner
will be squarely covered by the judgment in Atam Bodh Sharma's case
(Supra). Learned counsel for the respondents has not been able to show
any Rule or Regulation which gives the right to the respondent/State to
withhold the retiral benefits merely upon the registration of an FIR. The
right with the respondents is only to withhold the benefits in case of the
pendency of the criminal proceedings and the criminal proceedings can
only be deemed to be pending on the date when a Challan is presented
against the accused. Hence, in the case of the petitioner withholding of his
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benefits by the respondents was beyond their jurisdiction.
14. Keeping in view the above, present petition is allowed. Respondent
No.3 is directed to grant interest to the petitioner @ 6% per annum on his
retiral benefits, from the date it became due till its actual payment was
made. Likewise, interest @ 6% per annum be also granted to the
petitioner from the due date of gratuity till its payment made on
03.11.2022. Said exercise be carried out within a period of three months
from the date of receipt of certified copy of this order."
9. The abovesaid case squarely covers the case of the petitioners.
No judgment to contrary has been cited. It would be relevant to note that
Rule 9.14 (c) provides that no gratuity would be paid to the government
employee until the conclusion of departmental or judicial proceedings and
issue of final order thereon and the term which has been used in the said
clause is "judicial proceedings". As has been held in the abovesaid
judgment and also in the judgment of the Hon'ble Supreme Court of India in
Union of India vs. K.V. Jankiraman's case (supra), the "proceeding"
would only be considered to be initiated / pending in case the challan has
been filed in the criminal Court and the same having not been done on the
date when the petitioners had retired in the present case, It cannot be said
that there were any judicial proceedings pending so as to entitle the
respondent authorities to withhold the gratuity of the petitioners. The
Coordinate Bench of this court in the case of Lakhdev Singh vs. State of
Punjab reported as 2001(3) RSJ 599 while considering a case in which
Clause (c) of Rule 9.14 of the Rules was applicable, had held that in a case
where an FIR had been registered but no challan had been filed, it could not
be said that judicial proceedings were pending on the date of retirement so
as to entitle the authorities to withhold the gratuity and the other retiral
benefits. The relevant portion of the said judgment is reproduced
hereinbelow:-
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"The argument is that the right would ensue to the Government to
withhold the retiral benefits only if the departmental or judicial
proceedings are pending on the retiree on the date of retirement.
Admittedly, no proceedings were pending on the date of retirement of the
petitioner. In support of his argument, the learned counsel relied upon the
dicta of this Court expressed in L.R.Dhawan v.State of Haryana and
others, 1996(3) Service Cases Today 11.
4. So far as initiation of judicial proceedings is concerned, the same
is entertained under clause (3) supra and presently period of four years
having expired long back, no judicial proceedings could be initiated in
pursuant to the said FIR against the petitioner for the purpose of
withholding the retiral benefits. In support of his arguments, my attention
was drawn to Walaiti Ram Gupta v. Punjab State, 1977(4) SCT 230 and
K.C. Duggal, Sub Divisional Engineer v. The State of Punjab, 1989(2)
RSJ 513.
xxx xxx xxx
6. Learned counsel appearing for and on behalf of the State has not
been able to rebut the argument of the learned counsel for the petitioner
and has candidly admitted that in fact no judicial proceedings were
pending at the time of retirement and even now the challan is yet to be
put in Court.
xxx xxx xxx
7. I am of the view that the respondents did not have any authority
in withholding the amount due and payable as leave encashment,
DCRG and the commutation of the pension because no judicial
proceedings or departmental proceedings were pending against the
petitioner at the time of retirement. In fact no judicial proceedings have
been initiated for the last four years from the date of incident and in fact
as per the said rule, before passing final orders, the Public Service
Commission is required to be consulted. Admittedly, even the challan has
not been put up in the court pursuant to the FIR till date."
10. The question which arose for consideration in the present case
as detailed in para 7 of the present order is answered in favour of the
petitioners and it is held that the respondent authorities had no right to
withhold the gratuity due to the petitioners solely on account of the
pendency of the FIR no.9 dated 29.06.2004, when admittedly no challan had
been presented on the date the petitioners retired.
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11. Once this Court has held that the respondent authorities had no
right to withhold the gratuity payable to the petitioners, it necessarily
follows that the petitioners are entitled to interest for the delay in payment.
12. The Coordinate Bench of this Court in CWP-15867-2001 titled
as "J.S. Cheema vs. State of Haryana and others" decided on 20.11.2013
had held that the jurisprudential basis for grant of interest to a person was
that the said person's money had been used by somebody else and thus,
even if there was no negligence on the part of the State, it could not be
denied that money which rightly belonged to the employee, was in the
custody of the State and was being used by it and thus, interest was granted
to the petitioner therein on the delayed payment of retiral benefits. The
relevant portion of the said judgment is reproduced hereinbelow:-
"1 to 3. xxx xxx
4. In the written statement, the plea taken is that the petitioner
submitted his pension papers very late and that is why some delay was
caused in the disbursal of his retiral benefits.
5. In my opinion, even if the assertion made in the written
statement is presumed to be correct it would not disentitle the petitioner
for claiming interest. 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 laying
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.
6. Learned Assistant Advocate General has further argued that some
reasonable time has to be granted for processing the papers and the
requirement of law is not that strict that interest must be ordered from the
first day after retirement. I find some weight in this assertion.
7. Learned counsel for the petitioner has argued that as per the
Government instructions the period of three months has to be taken as
maximum period within which the retiral benefits has to be released. After
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deducting those three months there is still a delay as mentioned above.
8. In the circumstances, I hold the petitioner entitled to interest @
8% p.a. on the delayed payment of retiral benefits. The interest will
become due w.e.f. 01.05.2000. Let the interest on the above components
i.e. gratuity, arrears of pension and leave encashment be computed @
8% p.a. from 01.05.2000 till the date of payment and the same be
released to the petitioner within a period of two months from the date of
receipt of a certified copy of this order, failing which, the petitioner
would be entitled to claim the same with interest @ 9% p.a.
Petition stands disposed of in the above terms.
Since the main case has been decided, the pending civil
miscellaneous application, if any, also stands disposed of."
13. Keeping in view the abovesaid facts and circumstances, all the
six writ petitions are partly allowed and the petitioners are held entitled to
interest @ 6% per annum as granted in the case of Baljit Singh (supra) on
the delayed payment of gratuity and the said interest would accrue to the
petitioners after three months from their date of retirement(s) till the date of
actual payment. The respondent authorities are directed to release the
amount to the petitioners on account of the said interest within a period of
three months from the date of receipt of certified copy of the present order.
(VIKAS BAHL)
JUDGE
March 12, 2024
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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