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Judgment
The applicant has filed this OA seeking the following reliefs:-
"(a) To pass an order directing the respondents to fix the provisional pension to the extent of 100 percent as per law from the date of retirement of the applicant.
(b) To pass an order directing the Respondent to disburse the amount of gratuity, balance EPF amount and leave encashment along with interest at the rate applicable to GPF;
(c) pass any other order or orders may deem fit in the circumstances of the case."
Brief facts of the case as narrated by the applicant that the applicant, who was working as Traffic Inspector and retired on 30.4.2017, has not been given his retiral dues. The applicant however wrote several letters on 27.4.2017, 16.5.2017 and 18.5.2017 wherein he contended that there has been no departmental enquiry pending against him at the time of retirement nor there was any contemplation with regard to initiation of a departmental enquiry.
2.1 When nothing was done by the respondent, the applicant approached the office of Deputy Chief Minister, Govt. of Delhi and pursuance of which, a letter dated 24.5.2017 was sent by the office of Deputy Chief Minister to the respondent in this regard and the respondent in pursuance of the said letter dated 24.5.2017, issued a letter dated 9.6.2017 addressed to the applicant whereby informing that his retiral benefits are withheld in compliance of order/letter No.VS/14/3489 dated 1.9.2014 issued by the Manager Vigilance, DTC, referring to a pending criminal case vide FIR No.314 dated 7.6.2015 u/s 306/34 IPC in the learned Court of Sh. Harbir Singh Dahiya, Additional Sessions Judge Jhajjar, Haryana.
2.2 Feeling aggrieved by the aforesaid order, the applicant has filed this OA seeking the reliefs as quoted above.
Pursuant to notice issued to the respondent, he has filed counter affidavit in which it is stated that the applicant was involved in a criminal case pending in the learned Court of Harbir Singh Dahiya, Addl. Session Judge, Jhajjar (HR) against him under Section 306/34 of IPC vide FIR No.314 dated 7.6.2015 of PS Sadar, Bhadurgarh, Dist. Jhajjar, Haryana (Annexure R/1).
3.1 The applicant being aggrieved with the lawful action of the answering respondent made a representation dated 27.4.2017 for releasing of his gratuity. Thereafter, another representation of the applicant dated 16.5.2017 under receipt through OSD to Hon"ble Dy. Chief Minister, Delhi Govt., Delhi vide letter dated 24.5.2017 in regard for non-payment of retirement dues, i.e., gratuity, GPF final payment etc., which was duly replied by the answering respondent vide letter dated 18.7.2017.
3.2 It is further stated that in compliance of Manager (Vigilance) letter dated 1.9.2014, the retiral benefits have to be withheld in case where disciplinary or criminal proceedings against employee is/are pending on the date of his retirement as per the instruction already circulated by Manager Administration vide Memo dated 15.09.2011 and further instructions issued by Manager (Admn.) vide Office Memo dated 1.5.2012. The applicant was under trial of the Hon"ble Court on the date of his retirement. Therefore, in compliance of the above said orders of the Corporation, his all dues have been withheld in accordance with the Office Memo dated 1.5.2012 till pending and outcome of the trial in the above said learned Court.
3.3 It is further stated that 90% of CPF has already been released to the applicant vide letter dated 3.1.2017 and after completing the formalities, remaining amount of CPF has been released vide letter dated 10.8.2017 under the intimation to the employee through Speed Post. Al the dues have been released in favour of the applicant except the dues to be withheld in compliance of letter/circular dated 1.9.2014, 1.5.2012 and 15.9.2011.
3.4 It is also stated that vide reference letter dated 31.8.2016 received from DM Shadipur Depot along with a complaint submitted by Sh. Sumit S/o late Sh. Suresh Kumar, Ex. Driver B. No.17252 R/o Vill. Kharar, Distt. Jhajjar, Haryana along with which he had also annexed a copy of order dated 2.6.2016 passed by the learned Court of Shri Harbir Singh Dahiya, Addl. Sessions Judge, Jhajjar. On the basis of aforesaid complaint, the disciplinary authority issued a letter dated 14.9.2016 and again on 4.3.2017, disciplinary authority issued another letter dated 4.3.2017, regarding submission of court document, i.e., FIR and latest information/status in case. On 14.3.2017, vide letter dated 14.3.2017, the applicant submitted his reply along with which he had submitted a FIR copy and also a copy of the order dated 2.6.2016 passed by the learned Court (supra).
3.5 The answering respondent also stated that the pension case file in respect of the applicant has been sent to Pension Department vide letter dated 8.8.2017 for taking necessary action as per rule of the Corporation under intimation to the applicant through Speed Post.
The applicant has not chosen to file any rejoinder.
During the course of hearing, learned counsel for the applicant submitted that although 90% of CPF has already been released to the applicant and the remaining amount of CPF was released only on 10.8.2017, but still the amounts of gratuity and leave encashment have not been released by the respondents till date in the garb of pendency of the said criminal case, despite the fact that no departmental proceedings have been initiated by the respondents till the date of his retirement, i.e., 30.4.2017. Counsel further submitted that the applicant has faced the criminal charge not on account of his misconduct in the Respondent-DTC but due to the FIR No.314 dated 7.6.2015 in which he was falsely made party and the same case is pending before the concerned learned Court and the said FIR has no relation with any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer-DTC, nor he has caused any loss to the DTC. The applicant requested the respondent to release the amounts of gratuity and leave encashment but the respondent instead of applying its mind has withheld the same in the garb of pendency of the said criminal case. Contention of the applicant is that he is eligible to get gratuity as per the payment of Gratuity Act 1972, and also the encashment of leave and the Hon"ble Courts in catena of judgments held that in the grab of pendency of criminal case, which has no nexus with his misconduct in the Respondent-DTC, the same cannot be withheld by the respondents. Counsel further submitted that there is no provision to withhold the amount of leave encashment, if there is no question of any recovery from the employee in relation of any amount to be recovered by the employer.
On the contrary, learned counsel for the respondent, submitted that due to pendency of the said criminal case and as per the instructions from the Corporation vide letters dated 1.9.2014, 1.5.2012 and 15.9.2011, the respondent has withheld the amounts of gratuity and leave encashment, which is in accordance with law and rules on the subject.
The issues that come up for determination are in narrow compass - whether the Applicant is entitled to (a) Gratuity and (b) leave encashment or not?
This Court now examines the issue whether the applicant is entitled to get the leave encashment. After giving the thoughtful consideration to the rival contentions of the parties, this Court finds that leave encashment is part of the salary and is covered under the expression Pay and Allowances". The Respondent admitted that the applicant was paid salary and other allowances up to 30.4.2017, but after his retirement due to pendency of the said criminal case, the leave encashment was not paid, which is not a reasonable ground to withhold the amount of leave encashment. Therefore, the applicant is entitled to get the entire leave encashment due to service rendered by him.
The next issue of the applicant relates to the payment of gratuity. The Section 4 of the Payment of Gratuity Act 1972 provides that the gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service of not less than 5 years on his superannuation or on his retirement or resignation or on his death or disablement due to accident or disease. The Clause 6 of Section 4 of the Payment of Gratuity Act 1972 prescribes the grounds under which gratuity can be withheld or forfeited partly or fully. The relevant provisions of Payment of Gratuity Act, 1972, quoted as under:-
"Section 4 Sub-clause (1) says that gratuity shall be payable to an employees on the termination of his employment after he has rendered continuous service for not less than five years--(a) on his superannuation; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; and Sub-clause (6) reads as under:
(6). Notwithstanding anything contained in Sub-section (1)--
(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
(b) the gratuity payable to an employee may be wholly or partially forfeited--
(i) If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."
In the present OA, the applicant has tried to demonstrate that the said criminal case has no nexus with any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer-DTC, nor he has caused any loss to the DTC. Gratuity is earned by an employee by virtue of his service over a period with his employer. As back as 1975, the DTC has adopted the Payment of Gratuity Act 1972 and has been implementing. The Provisions of Section 4 (6) (a) do not come into operation unless there is a termination on the grounds set out in that sub section.
The action of the respondents not releasing the gratuity is on the ground that an FIR has been registered against the applicant which contains grave charges under the IPC but the said FIR is yet to be adjudicated by the concerned Court. A plea has been raised by the learned counsel for the applicant that after registration of the said FIR attaching of the amount of his gratuity will cause him a severe loss as he is now retired and could have deposited this amount in the Bank and earned interest on the same. The release of amount of gratuity at a later stage will result in a major loss of his interest earnings. Hence, in the peculiar facts and circumstances of the case and taking into account that this is an FIR registered because of violence between private parties and not directly related with his work as an employee of the respondents. Hence, this Court directs that the admissible amount of gratuity be made into a fixed deposit and the same may be released to the applicant only after conclusion of the said pending criminal case.
So far as leave encashment is concerned, as observed above, the same is the benefit resulting from the service rendered by the applicant and there is no ground subsisting in this case for withholding the same. Hence, the respondents are directed to release the amount of leave encashment to the applicant.
In view of the above, the decision of the respondents withholding the gratuity and leave encashment of the applicant is quashed and the respondents are directed to act in accordance with observations made by this Court in preceding paragraphs. The said exercises shall be completed within a period of 45 days from the date of receipt of certified copy of this Order.
In the result, the instant OA is disposed of as indicated above. There shall be no order as to costs.