Ghansham Yashwant Dupate v. PEC Limited

1. The petitioner who superannuated from the service of the respondent no.1 way back on 28.06.2019, has approached this Court seeking a direction to the respondent no.1 to release all his terminal benefits including Encashment of Earned Leave, Encashment of Half Pay Leave, Gratuity, Service Award and Benevolent Fund amounting to Rs. 26,06,018/-. The petitioner also seeks a direction to the respondent no.1 to forward, in terms of the PEC Limited Employees Defined Contributable Superannuation Funds Scheme (hereinafter referred to as ‘Scheme’), his application to the Life Insurance Corporation (LIC) for release of pension to him w.e.f. July,

2019.

2. The writ petition is opposed by the respondents on the ground that, till the criminal proceedings against the petitioner, initiated by the CBI, in which a charge-sheet has already been filed, are concluded, he cannot be released either his aforesaid terminal benefits, or his pension.

3. Insofar as the petitioner’s claim regarding his terminal benefits other than pension, are concerned, learned counsel for the respondents submits that, in terms of para 32(i) of the Employees’ (Conduct, Discipline & Appeal) Rules, 1975, (hereinafter referred to as ‘Rules’) the respondent no.1 has the power to withhold these terminal benefits of the petitioner, including encashment of earned leave and half-pay leave, as also his gratuity, service award and benevolent fund, till the criminal proceedings against him are concluded.

4. Learned counsel for the petitioner, however, contends that these Rules do not deal with the payment of terminal benefits of an employee, and do not in any manner, entitle the respondents to withhold the terminal dues of an employee who stands superannuated. In order to appreciate the rival submissions of the parties on this aspect, it would be apposite to note para 32(i) of the Rules, which reads as under:

32.

SPECIAL PROCEDURE IN CERTAIN CASES: Notwithstanding anything contained in Rule 27 or 28 or 29, the Board may impose any of the penalties specified in Rule 25 in any of the following circumstances:

1. the employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial;”

5. A bare perusal of the aforesaid clause shows that the same deals with imposition of penalties on an employee on the basis of the findings of the criminal court, and does not in any manner, envisage imposition of a penalty, merely on the basis of pendency of criminal proceedings. Once it is an admitted position that the criminal proceedings against the petitioner are still pending, and as on date, no findings against him have been recorded by any criminal court, the respondents cannot rely on para 32(i) of the Rules to withhold his terminal benefits. The action of the respondents is clearly unsustainable, and amounts to unjustifiably harassing an employee, who superannuated from service almost 3½ years ago, after rendering more than 34 years of service.

6. At this stage, learned counsel for the respondent submits that even otherwise, the petitioner’s claim for gratuity is not maintainable before this Court as the petitioner has an alternative efficacious remedy to approach the Controlling Authority under the Payment of Gratuity Act, 1972.

7. In my view, even though the learned counsel for the respondent is correct in urging that the petitioner has an alternative remedy to approach the Controlling Authority, for release of his gratuity, the fact which needs to be noted is that the respondents have, without any justification, failed to release any of his terminal dues, and that too, after almost 3½ years of his superannuation. Once this Court is examining the petitioner’s grievances regarding non-payment of all his other terminal benefits, which claim is being opposed on wholly frivolous grounds by placing reliance on a rule which is not at all applicable to the facts, as also the fact that the writ petition has been pending before this Court for over two years during which period, the petitioner has neither received his terminal benefits, nor his pension, it will be against the interest of justice to now direct the petitioner at this belated stage to approach the Controlling Authority for release of his gratuity. I, therefore, do not, see any reason to direct the petitioner to approach the Controlling Authority for release of his gratuity.

8. Now coming to the respondents’ plea that no pension is payable to the petitioner, till the criminal proceedings initiated by the CBI against him are concluded, learned counsel for the respondent placed reliance on clause 10(f) of the Scheme, which reads as under:

9. The aforesaid clause undoubtedly entitles the respondent no.1 to withhold pension of an employee who is facing either disciplinary proceedings, or judicial proceedings. When faced with this situation, learned counsel for the petitioner submits that the said clause is wholly arbitrary and unreasonable. He submits that he will be moving an application to seek amendment of the writ petition so as to incorporate a challenge to the aforesaid clause. As and when, such an application is moved, the same will be considered on its own merits.

10. Accordingly, while adjourning the matter by granting time to the petitioner to move an application for amendment of the writ petition, insofar as his claim for pension is concerned, the respondent no.1 is directed to release, within a period of six weeks, all his other terminal dues, including Encashment of Earned Leave and Half Pay leave, Gratuity, Service Award and Benevolent Fund, with interest at the rate of 6% per annum, w.e.f. 01.09.2019. The interest is being directed to be paid w.e.f. 01.09.2019 by considering two months’ period as reasonable period, during which the respondents ought to release the terminal dues of its superannuated employees.