Retiral dues cannot be withheld without pending disciplinary charges at the time of retirement.

HARPREET SINGH BRAR, J. (Oral)

1. The present writ petition has been filed under Article 226/227 of the Constitution of India with a prayer for issuance of an appropriate writ, order or directions especially in the nature of certiorari for quashing/setting aside the impugned order dated 28.09.2021(Annexure P-25) and order dated 02.11.2021(Annexure P-26) to the extent of withholding Rs.4,18,734/-

passed by respondent No.2.

2. Learned counsel for the petitioner inter alia contends that the petitioner was a regular employee of the respondent-Federation since 26.09.1983. He worked on different posts during his service tenure till attaining the age of superannuation on 30.04.2021. The retiral dues of the petitioner were withheld on the ground that respondent No.4 has made a deduction of Rs.81,307/- from the bill generated by respondent No.2. The charge-sheet was issued against the petitioner vide memo No.531 dated 28.01.2021 and was filed on 11.05.2021. Admittedly, when the petitioner retired from the service there were no disciplinary or criminal proceedings pending against him. It is trite law that in the absence of any charge sheet or framing of charge, retiral dues of an employee cannot be withheld.

3. Per contra, learned counsel for respondents No.1 to 3 submits that while petitioner was working as a field inspector at Gohana. On 10.05.2002 wheat was loaded for its delivery in West-Bengal upon the instructions of Food Corporation of India, Gohana (hereinafter ‘FCI’). The petitioner gave an undertaking on 10.05.2002 to the officials of respondent No.4-FCI confirming the quality and quantity of the loaded wheat without seeking any approval or intimation of the Centre Incharge and District Manager (Annexure R-1). Consequently, respondent No.4-FCI deducted an amount to the tune of Rs.81307/- on account of negligence and the loss caused to the respondent-Federation.

4. Learned counsel for respondent No.4-Federation submits that respondent No.4 is not a necessary party in the present case and they have only made deduction from the respondent-Corporation amounting to the tune of Rs.81,307/- on justifiable reasons.

5. Further, learned counsel for respondent No.4-Federation could not controvert the fact that the reported lapse had occurred in the year 2002 and deduction was ordered later on by respondent No.2 whereas, when the petitioner retired in the year 2021, there was no charge sheet pending against him.

6. I have heard the learned counsel for the petitioner as well as the respondent(s) and gone through the case file with their able assistance.

7. The action of the respondent(s) in making the petitioner liable for any loss suffered in the year 2002 post his retirement is not sustainable in the eyes of law.

8. It is no longer res integra that in case a disciplinary or criminal proceedings are pending against an employee on the date of retirement, the employer would be well within its right to withheld the gratuity as well as the leave encashment. However, the Hon’ble Supreme Court in ‘ Union of India Vs. K.V. Jankiraman ’ 1991 (3) SCT 317 has authoritatively laid down that the pending proceedings would mean that charge sheet is served in departmental proceedings or the charges have been framed in criminal proceedings by the competent Court of law on or before the date of retirement of an employee. The relevant paragraph of the judgment is reproduced 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 Trib