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Judgment
Prafulla C. Pant, J.—By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought mandamus for arrears of salary, pensioner benefits including payment of provident fund dues and gratuity etc. Also quashing of notice dated 8.5.2002 issued in pursuance of departmental enquiry against the petitioner has been sought,
Brief facts of the case, as narrated in the writ petition, are that the petitioner joined his services on 1.4.1977 as a Driver in the Bharat have Electricals Limited, Ranipur. District Haridwar (hereinafter B.H.E.L. tor sake of brevity) which is a corporate body of public sector. A First Information Report was lodged against the petitioner on 28.2.1995 for an offence punishable u/s 381/411 of IPC registered at Police Station Ranipur, District Haridwar on the basis of which a criminal case with crime No. 39 of 1995 was registered against him. Consequently, the petitioner was arrested and was tried for the said alleged offence by the Chief Judicial Magistrate, Haridwar, who after recording evidences, acquitted the petitioner on 15.3.2001 of the charge of theft and that of receiving stolen property, (copy of the judgment Annexure-1 to the writ petition). Meanwhile, the petitioner was placed under suspension by the respondent No. 4 on 28.2.1995 and a departmental charge-sheet was also served on him. On acquittal from the Court the petitioner sought withdrawal of his suspension order, however it appears that before the suspension order is withdrawn, the petitioner got retired on 24.9.2001 on attaining the age of superannuation and as such became entitled to the dues relating to provident. fund and gratuity etc. On 8.6.2002 (copy of letter Annexure-4 to the writ petition), the Deputy General Manager of BHEL informed the petitioner that in the departmental enquiry he has been punished with a censure entry. The petitioner in view of his retirement contacted the finance department BHEL for his arrears of salary and pensionary benefits and sent a letter dated 22.11.2001 (copy Annexure-5 to the writ petition) to the concerned authorities. Complaining that pensionary benefits have not been paid to him, this writ petition has been filed by the petitioner.
A counter affidavit has been filed on behalf of the respondents in which it has been stated that the petitioner was initially appointed as a unskilled worker and not a Driver on 11.2.1975 (copy Annexure C.A. 1 to the counter affidavit). It is not disputed in the counter affidavit that a FIR was lodged on 28.2.1995 u/s 381/411 of IPC at Police Station Ranipur, District Haridwar against the petitioner and he was arrested in said crime. As to the acquittal from the charge from the Court of Chief Judicial Magistrate, Haridwar, it is stated in the counter affidavit that though he was acquitted but he was not exonerated either as to his involvement in the crime. It is admitted that the petitioner was placed under suspension on his arrest. It is further stated in the counter affidavit that on 28.2.1995 the petitioner was caught red handed committing theft and seizure memo was prepared on the spot before the two witnesses by the Central Industrial Security Force personnel at the gate of the BHEL and was handed over to the Police. In the departmental enquiry in view of the confessional statement of the petitioner he was found guilty though considering his acquittal from the Court, punishment of only censure was awarded. On attaining age of superannuation the petitioner''s suspension did not stood recalled for the period under went on suspension as such he was not entitled from 28.2.1995 to full salary but only to the subsistence allowance. Denying the fact that the petitioner was not paid post retiremental benefits it is stated in para 11 of the counter affidavit that the dues relating to provident fund, gratuity, bonus, PP., LTC and other retiremental benefits to which he was entitled were paid to him as per the details given in Annexure CA 6. As to the pension it has been categorically stated in the counter affidavit that the petitioner is not entitled to pension for, as per the rules of company, pension is not paid by it to its employees. However, he can approach for remaining dues if any from the office of the Regional Provident Fund, Commissioner, Dehradun.
I heard learned Counsel for the parties and perused the affidavit, counter affidavit, and rejoinder affidavit along with the annexures annexed thereto.
The short question for consideration before this Court is whether, the petitioner is wrongly denied pensionary benefits as claimed by him and, is the notice of departmental enquiry dated 8.5.2002 (copy Annexure-7 to the writ petition) is liable to be quashed?
Admittedly the petitioner was employed with the respondent BHEL. It is also admitted that an FIR was lodged on 28.2.1995 u/s 381/411 of IPC with Police Station Ranipur, District Haridwar where it was registered as crime No. 39 of 1995 against the petitioner. There is no dispute as to the fact that petitioner was arrested on the very day but later acquitted from the charges from the Court of Chief Judicial Magistrate, Haridwar on 15.3.2001. This fact is also not disputed that on 24.9.2001 petitioner stood retired on attaining the age of superannuation. The question before this Court is whether the petitioner was not paid the amount due, on attaining retirement relating to the post retirement benefits as was the departmental enquiry initiated against him was liable to be quashed?
So far as the departmental enquiry is concerned it is an independent proceeding as against the criminal trial in respect of the alleged theft in which the petitioner was arrested and stood trial. Perusal of the copy of the judgment dated 15.3.2001 (copy Annexure-1 to the writ petition) shows that the petitioner who was caught at the gate of the factory of the respondent taking certain articles of the factory on interception by the security personnel in consequence of which he was arrested, stood trial and in the trial learned Chief Judicial Magistrate, Haridwar acquitted the petitioner as he did not believe the prosecution evidences in view of the contradiction in their statements. The principles of Evidence Act which arc applicable to the criminal trial are not applicable to the departmental enquiry as such the respondents were well within their competence to proceed with the departmental enquiry after giving opportunity to the petitioner and holding him guilty on the basis of the confessional statement made by him at the time of interception at the gate of the factory. The respondents have in the departmental enquiry after giving to the petitioner due opportunity to defend himself, have already given a lenient view by awarding merely a censure entry. As such in the opinion of this Court, the notice dated 8.5.2002 relating to the departmental enquiry cannot be said to be illegal as such it needs no interference.
This Court also examined the fact relating to the dispute regarding payment of post retiremental benefits to the petitioner. In Annexure CA 6 filed with the counter affidavit, respondents have clearly stated that following payment have been made to the petitioner after he stood retired--
Employees Provident Fund Scheme Rs. 6,276.00 up to period of suspension in 1995 2. Subsistence Allowance @ 50% of wages (3 months) 28.2.1995 (-) 27.5.1995" 3. Subsistence Allowance @ 100% of wages (3 months) Rs. 4,72,788.00 27.5.1995(-) 24.9.2001 4. P.P. & Bonus (Ex-Gratia) payment from 28.2.1995(-) 24.09.2001 5. P.F. released Rs. 77,799.00 6. Gratuity paid Rs. 95, 440.00
In the rejoinder affidavit, the petitioner has not denied the above figures rather in para 8 of the rejoinder affidavit it has been stated that Rs. 95,450/- is paid to the petitioner out of Rs. 2,50,000/- he claims on account of gratuity but he has not explained how he has claimed gratuity amount to the tune of Rs. 2.50,000/-. It is further stated in the rejoinder affidavit that he has not been paid full salary for the period of 1.1.1996 to 24.9.2001. In this regard it is pertinent to mention here that during this period admittedly the petitioner remained under suspension and he was entitled only to the subsistence allowance and his suspension order has been withdrawn not with the full wages. As far as the pension is concerned, learned Counsel for the respondents stated that the respondent company do not pay pension to its employees. The learned Counsel for the petitioner failed to show me any provision under which his services were pensionable.
In the circumstances and in view of the above discussion, the writ petition is liable to be dismissed as against respondents, for the quashing of the proceeding of departmental enquiry and for the payment of provident fund and gratuity as the same appears to have been already paid to the petitioner. Accordingly, the writ petition is dismissed as against respondents with the observation that the petitioner may move to the Regional Provident Fund Commissioner for his remaining dues if any payable by said office. No order as to costs.