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S K Pattanayak vs Ministry Of Railways & Ors on 12 September, 2022

Author: Najmi Waziri

Bench: Najmi Waziri

                              $~9
                              *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                              +      LPA 541/2019, CM APPL. 37728/2019, CM APPL. 8208/2020 &
                                     CM APPL. 346/2022 (For directions)
                                     S K PATTANAYAK                            ..... Appellant
                                                       Through:    Mr. Sudharshan Rajan and Mr. Hitain
                                                                   Bajaj, Advocates.

                                                       versus

                                     MINISTRY OF RAILWAYS & ORS                ..... Respondents
                                                       Through:    Ms. Bharathi Raju, Sr. Panel Counsel
                                                                   for R-1 and R-2.
                                                                   Ms. Reeta Chaudhary, Advocate for
                                                                   IRFC/R-4.


                                     CORAM:
                                     HON'BLE MR. JUSTICE NAJMI WAZIRI
                                     HON'BLE MR. JUSTICE VIKAS MAHAJAN
                                                       ORDER

% 12.09.2022 The hearing has been conducted through hybrid mode (physical and virtual hearing).

1. On 27.07.2022, the following order was passed:

"1. The appellant's services were terminated, yet a departmental inquiry has been initiated by the respondent no.4. It has withheld his retiral benefits, which includes Performance Related Pay (PRP). The petitioner was terminated in the year 2018. There is no progress in the so called departmental proceedings.

2. According to learned counsel for the appellant no such Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:19.09.2022 11:35:20 emoluments can be held back because the provision of law which the respondents rely upon i.e., Rule 30.1 of the IRFC (Conduct, Discipline & Appeal) Rules do not provide for withholding of the PRP. It is limited only to gratuity and leave encashment in cases of superannuation/ retirement. The said Rule is reproduced hereunder:-

"Rule 30.1 CONTINUATION OF DISCIPLINARY PROCEEDINGS AFTER SUPERANNUATION/ RETIREMENT" Any disciplinary proceedings instituted against an employee, while he was in service, whether before his retirement or during his re- employment, shall after final retirement of the employee, be continued and concluded in service until the proceedings are concluded and final order passed in respect thereof. Such employee will not be entitled to receive any pay and/or allowance after the date of superannuation/retirement. He will also not be entitled for the payment of any gratuity and leave encashment benefits till the proceedings are completed and final orders passed thereon. In case, the employee, as a result of the disciplinary proceedings instituted against him, is found guilty of offences/misconduct as mentioned in sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the Company by misconduct or negligence, during his service including service rendered on e-employment after retirement, the disciplinary authority may order recovery from gratuity of the whole or part of any pecuniary loss caused to the Company. However, the provisions of Section 7(3) and 7(3A) of the Payment of Gratuity Act, 1972 shall be kept in view in the event of delayed payment, in case the employee is fully exonerated. For the purpose of this Rule, departmental proceedings shall be deemed to be instituted on the date, on which the statement of charges is issued to the employee, or if the employee has been placed under suspension from Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:19.09.2022 11:35:20 an earlier date, on such date."

3. Ex-facie, what is evident from the above is that the Rule does not extend to withholding of PRP in the first place and in any case, it will not extend to cases of termination.

4. The learned counsel for the respondents seeks time to obtain instructions, yet again.

5. At request, re-notify on 03.08.2022."

2. It is noted that there is a typographical error in the first paragraph of the aforesaid order. The sentence "The petitioner was terminated in the year 2018." should be read as "The appellant's services were terminated in the year 2018...". The order stands so corrected.

3. No rule is shown to the court as to whether the Performance Related Pay ('PRP') could be withheld, specifically in the instances of termination of services.

4. The appellant has claimed the said amount through a letter dated 22.11.2019, which is annexed as CM-1 to the application. The same is reproduced as under:

5. The learned counsel for the appellant submits that the PRP dues have been approved by the Indian Railway Finance Corporation ('IRFC') Board itself, therefore, the amount is not in dispute.

6. Since there is no rule which permits withholding of PRP, the monies, which are due to the appellant, shall be released to him along with interest. Let R-4 release the appropriate amounts to the appellant within a period of eight weeks from the receipt of a copy of this order.

7. CM APPL. 346/2022 is disposed-off in terms of the above.

8. At joint request, list the appeal for arguments on 14.02.2023.

9. The learned counsel for the parties may file their written submissions, not exceeding three pages each, with cross-references to the pleadings and citations relied upon.

NAJMI WAZIRI, J VIKAS MAHAJAN, J SEPTEMBER 12, 2022 SS Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:19.09.2022 11:35:20