Punjab-Haryana High Court
Rajinder Kumar Dania vs State Of Punjab & Others on 18 September, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
C.W.P. No.14185 of 2010
Date of Decision: 18.09.2012
Rajinder Kumar Dania
...Petitioner
Vs.
State of Punjab & others
...Respondents
Coram: Hon'ble Mr. Justice Tejinder Singh Dhindsa.
Present: Mr. P.K. Garg, Advocate,
for the petitioner.
Mr. Suvir Sehgal, Additional Advocate General, Punjab.
****
Tejinder Singh Dhindsa, J.(Oral)
The petitioner, who was holding the post of Inspector, Grade I, under Food Supplies & Consumer Affairs Department, State of Punjab, retired on 31.8.2001, upon attaining the age of superannuation.
The precise prayer made in the present writ petition is for issuance of writ in the nature of mandamus for directing the respondents to release to the petitioner the pensionary/retiral benefits towards gratuity as also leave encashment that have not been released till date.
The facts would require notice. Undisputedly, the petitioner was issued three chargesheets post retirement. The first chargesheet was issued on 19.6.2002 relating to PR Centre, Dhuri, with regard to allegations of causing losses by the concerned rice miller to the Government. Said chargesheet was dropped by the respondent-authorities on 22.4.2009. C.W.P. No.14185 of 2010 -2- Thereafter, two more chargesheets dated 3.11.2004 and 28.9.2005 were issued upon the petitioner. In so far as the chargesheet dated 28.9.2005 is concerned, the same was quashed by this Court in terms of the judgement dated 5.5.2010 passed in CWP No.870 of 2009 holding the same to be violative of Rule 2.2 (b) of the Punjab Civil Services Rules, Volume II (for short 'the PCS Rules'). In furtherance of chargesheet dated 3.11.2004, the petitioner was held guilty and a punishment of recovery of Rs.80,942/- was imposed on the petitioner. In a statutory appeal preferred by the petitioner, the appellate authority enhanced the punishment and the entire recovery of an amount of Rs.4,04,714/- was imposed upon the petitioner. Such orders of imposition of penalty in pursuance to the chargesheet dated 3.11.2004 have been impugned by the petitioner in terms of filing separate writ petition No.15158 of 2010, which is pending adjudication before this Court.
Learned counsel appearing for the petitioner would vehemently contend that in terms of Rule 2.2(b) and 2.2 (c) of the PCS Rules, the amount of gratuity and leave encashment due to the petitioner could not have been withheld as on the date of retirement no chargesheet has been served upon him. In furtherance of such submission, counsel has placed reliance upon the Division Bench judgment of this Court in Ram Narain Dua Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. & others, 2007(1) SCT
161. Further reliance has been placed upon the judgement passed by Coordinate Bench of this Court in Narinder Dev Sharma Vs. State of Punjab and another, 1996(1) SCT 623 as also another judgement in L.R. Dhawan Vs. State of Haryana and others, 1996(3) SCT 11. In the judgement of L.R. Dhawan's case (Supra), this Court has held in the C.W.P. No.14185 of 2010 -3- following terms:-
"Gratuity due to an employee is payable to him on the date of retirement,. Payment of the gratuity can be deferred in a case where the employee is under cloud at the time of his retirement, namely, in a case where he is facing departmental inquiry or judicial proceedings. If no inquiry or judicial proceedings is pending on the date of retirement of the employee, the Government/employee does not have any authority to withhold the payment of gratuity. Similarly, full pension payable to an employee can be withheld during the pending of the departmental inquiry or judicial proceedings. The Government is also possessed with the power to withhold the pension or a part thereof or recover any pecuniary loss caused to the Government from the pension payable to an employee in case such Government servant is found guilty of grave misconduct or negligence in the discharge of his duties during the course of service. Deduction from the pension can be made even on the basis of an inquiry which may be initiated against the employee after his retirement but subject to the fulfilment of the conditions enumerated in proviso to Rule 2.2(b). However, proceedings initiated against an employee under proviso to Rule 2.2 (b) cannot be made a ground for Withholding of death-cum-retirement gratuity or the pension payable to an employee on the date of his retirement. In the case in hand, no inquiry was pending against the petitioner on the date of his retirement. The proceedings have been initiated against him after over three years and nine months of his retirement from service. That may ultimately lead to the withholding of the pension or part thereof or recovery therefrom in terms of Rule 2.2(b) but there does not appear to be any legal justification for withholding of death-cum-retirement gratuity payable to the petitioner on the ground that inquiry has been initiated against him under Rule 2.2(b) with the issue of notice dated C.W.P. No.14185 of 2010 -4- 26.12.1986."
Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, has not controverted the fact that on the date of retirement of the petitioner i.e. 31.8.2001, no chargesheet has been issued to him. Learned State counsel would submit that two days prior to his retirement, the petitioner has been placed under suspension and thereafter, even a show cause notice had been issued to him, which process finally culminated in the issuance of a chargesheet dated 3.11.2004.
It is now well settled that the initiation of departmental proceedings takes effect from the date chargesheet is served upon the employee. In the light of the admitted position of fact that as on the date of superannuation of the petitioner i.e. 31.8.2001, no chargesheet has been served upon him, there can be no justifiable reason to deny and withhold the pensionary benefits of gratuity as also leave encashment to the petitioner. Withholding of such amount is also violative of Rule 2.2 (b) of the PCS Rules as also Rule 2.2 (c)of the PCS Rules.
For the reasons recorded above, the present petition is allowed. The respondent-authorities are directed to release to the petitioner the withheld amount of gratuity as also the leave encashment within a period of three months from the date of receipt of certified copy of this order.
September 18, 2012 (TEJINDER SINGH DHINDSA) monika JUDGE