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2019 Supreme(P&H) 2257
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Harsimran Singh Sethi, J.
Anoop Singh - Appellant
Versus
State Of Haryana And Another - Respondent
CWP No. 21049 of 2017
Decided On : 14-10-2019
Mr. Sanjay Vashisth, Advocate, for the Appellant; Mr. C.S. Bakhshi, Additional Advocate General, Haryana, for the Respondent
Gratuity is payable on the date of retirement and can only be deferred if an employee is facing departmental inquiry or judicial proceedings on that date. Withholding gratuity based on a charge-sheet issued after retirement is impermissible and beyond the jurisdiction of the respondents.
Headnote:
Gratuity - Pensionary Benefits - Rule 7 Proceedings - CWP No. 3493 of 1986, CWP No. 20687 of 2012, CWP No. 8095 of 2005, CWP No. 13449 of 2014 - The court discussed the withholding of gratuity based on the issuance of a charge-sheet after retirement. It highlighted the legal principle that gratuity is payable on the date of retirement and can only be deferred if an employee is facing departmental inquiry or judicial proceedings on that date. The court emphasized that the position is to be seen on the date of retirement and not subsequently, and held that withholding gratuity based on a charge-sheet issued after retirement is impermissible and beyond the jurisdiction of the respondents.
Fact of the Case:
The petitioner retired on 30.11.2014, and the respondents withheld his gratuity based on a charge-sheet issued on 25.10.2017, approximately 3 years after his retirement. The petitioner argued that the gratuity should have been released immediately upon his retirement as there were no pending proceedings against him on the retirement date.
Finding of the Court:
The court found that on the date of the petitioner's retirement, there were no proceedings pending against him, which would have entitled the respondents to withhold the pensionary benefits. It held that withholding gratuity based on a charge-sheet issued after retirement was impermissible and beyond the jurisdiction of the respondents.
Issues: The main issue was whether the respondents had the jurisdiction to withhold the gratuity of the petitioner based on a charge-sheet issued after his retirement, despite no pending proceedings against him on the retirement date.
Ratio Decidendi: The court relied on previous judgments and legal principles to establish that gratuity is payable on the date of retirement and can only be deferred if an employee is facing departmental inquiry or judicial proceedings on that date. It emphasized that the position is to be seen on the date of retirement and not subsequently, and held that withholding gratuity based on a charge-sheet issued after retirement is impermissible and beyond the jurisdiction of the respondents.
Final Decision: The court directed the respondents to release the gratuity to the petitioner and held that the petitioner was entitled to interest on the delayed payment of gratuity.
JUDGMENT
Harsimran Singh Sethi, J. (Oral) - The grievance which is being raised in the present writ petition is that though the petitioner had retired from service on 30.11.2014 and on the said date, there was no charge-sheet pending against the petitioner, still the respondents have withheld the gratuity of the petitioner on the basis of a charge-sheet, which has been issued to the petitioner on 25.10.2017 i.e. approximately after 3 years of his retirement. The prayer of the petitioner is that on the basis of a charge-sheet, which has been issued to him after retirement, his pensionary benefits such as gratuity could not have been withheld as there were no proceedings pending against him on the date of retirement as the position is to be seen on the date of retirement and not subsequently with regard to the with holding of the pensionary benefits.
2. The facts leading to the filing of the present writ petition are that the petitioner had joined as Excise and Taxation Officer on 29.03.1989 and after rendering approximately 25 years of service, petitioner retired on 30.11.2014. It is the case of the petitioner that on the day when the petitioner retired, there was no charge-sheet pending against him but still, the respondents withheld his gratuity only on the ground that there was a complaint pending against him before the Haryana Vigilance Department.
3. Learned counsel for the petitioner argues that as there were no proceedings pending against the petitioner on the date of retirement, petitioner is entitled for the release of all his pensionary benefits and withholding of the gratuity is beyond the jurisdiction of the respondents.
4. Upon notice of motion, respondents have filed reply. In the reply, the respondents have admitted that the benefit of leave encashment and provisional pension has already been extended to the petitioner and only the gratuity amounting to Rs. 10 lacs have been withheld keeping in view the charge-sheet which has been served upon the petitioner on 25.10.2017. The relevant portion of the reply is as under :-
"1. It is submitted that the petitioner retired on 30.11.2014 as Additional Excise and Taxation Commissioner. Before retirement disciplinary proceeding under rule-7 were pending against the petitioner and Government vide letter dated 14.08.2014 (Annexure R-l) allowed him provisional pension only and leave encashment vide Government Order 11.02.2015 (Annexure R-2). In compliance of the government order provisional pension was disbursed to him and leave encashment was sanctioned vide order dated 11.03.2015 (Annexure R-3). All the other retirement benefits i.e. GPF and GIS were also given to the petitioner well in time. In compliance of CSR Vol.11 Rule 9.15 (1) (c) (Annexure R-4) gratuity amounting to (sic) Rs. 10 lacs has been withheld due to rule -7 proceedings being pending against the petitioner before retirement and petitioner was charge-sheeted under rule 7 read with rule 12(2)(b) of the Haryana Civil Service (Punishment & Appeals) Rules, 2016 by the Government vide order dated 25.10.2017, CSR Vol.11 Rule 9.15 (1) (c) (Annexure R-4) is reproduced below for ready reference:-
'No gratuity shall be paid to the Government employee until the conclusion of the departmental or judicial proceedings and issue of final orders thereon."
5. I have heard learned counsel for the parties and have gone through the record with their able assistance.
6. The only question raised for consideration of this Court in the present writ petition is as to whether, the respondents have the jurisdiction to withhold the gratuity of the petitioner even if, there was no disciplinary proceeding or any proceeding pending before the department or Competent Court of Law respectively against the petitioner on the date of his retirement. Whether, the issuance of a charge-sheet three years after retirement, will be good enough to bestow the jurisdiction upon respondents to withhold the gratuity for which the petitioner became entitle
