Dismissal Of Charge Sheet By Criminal Court Removes Basis For Withholding Retiral Benefits: J&K And Ladakh High Court
The Court also held that mere pendency of an investigation, without a charge sheet being filed, does not constitute a judicial proceeding warranting withholding of pensionary dues.
The High Court of Jammu, Kashmir and Ladakh has held that retiral benefits of a retired employee cannot be withheld after he has been discharged in a criminal case and the charge sheet against him stands dismissed.
The Court observed that even if a departmental enquiry had been conducted against the employee, there would be no justification for withholding terminal benefits once the criminal proceedings forming the basis of such action had come to an end.
The Court was hearing a writ petition filed by a former General Manager of the Jammu and Kashmir Projects Construction Corporation Limited (JKPCC), who challenged an enquiry report, recommendations made by the Managing Director, and their approval by the Board of Directors, whereby his retiral benefits were withheld pending the outcome of criminal proceedings.
A Bench of Justice Sanjay Dhar observed: “… even if the decision of the Board of Directors is given effect against the petitioner at this stage, still then, once he stands discharged, the respondents cannot withhold his retirement benefits”.
Thus, the Bench additionally held, “… even if, it is held that the regular departmental enquiry held by the respondents against the petitioner has been conducted in accordance with the procedure prescribed under J&K Civil Services (Classification, Control and Appeal) Rules 1956, still then the respondents have no justification in withholding the retiral benefits of the petitioner once the charge sheet against the petitioner stands dismissed by the criminal court.”
Senior Advocate Syed Faisal Qadiri, along with Advocate Sikander Hayat Khan, appeared for the petitioner, while Advocate M. M. Malik appeared for the respondents.
Background
The petitioner was promoted as Deputy General Manager of JKPCC in 2000 and subsequently promoted as General Manager (Civil) in 2015. In 2018, he was assigned the duties of Managing Director on an in-charge basis, an arrangement later confirmed by the Board of Directors. He superannuated from service on 30.04.2021.
Following a fact-finding inquiry into the affairs of the Corporation, an FIR bearing No. 10/2019 came to be registered by the Crime Branch. The petitioner was placed under suspension, and a regular departmental inquiry was also initiated against him. The inquiry ultimately held him responsible for certain actions relating to agenda placement before the Board, issuance of a circular, and alleged back-dating of documents.
Based on the inquiry report, the Managing Director recommended withholding the petitioner's retirement benefits until the outcome of the criminal trial or framing of charges. These recommendations were approved by the Board of Directors. Consequently, gratuity, leave salary, and salary dues remained unpaid.
During the pendency of the writ petition, however, the Special Judge, Anti-Corruption, Srinagar, discharged the petitioner in the case arising out of the FIR and dismissed the charge sheet filed against him.
Court's Observations
The Court noted that the charge sheet forming the basis of the Corporation's decision had already been dismissed by the criminal court and the petitioner had been discharged.
The Court held that even if it is held that the regular departmental enquiry held by the respondents against the petitioner has been conducted in accordance with the procedure prescribed under J&K Civil Services (Classification, Control and Appeal) Rules 1956, still then the respondents have no justification in withholding the retirement benefits of the petitioner once the charge sheet against the petitioner stands dismissed by the criminal court.
The Bench additionally remarked: “In these circumstances, going into legality and validity of the enquiry report and the impugned recommendations and the impugned orders passed pursuant to the said enquiry report, would be only an academic exercise which this Court would avoid to undertake in view of the aforesaid subsequent developments that have taken place.”
The Court then considered whether the respondents could continue withholding retirement benefits based on another FIR that was still under investigation.
Referring to Article 168-A of the J&K Civil Service Regulations, the Court observed that recovery from pension or retiral benefits can be made only subject to the conditions stipulated therein and only where losses caused by an employee have been determined in departmental or judicial proceedings.
The Court held: “Mere pendency of the investigation, without there being a charge sheet laid before the court, cannot be termed as a judicial proceeding.”
The Bench found that there was no judicial proceeding pending against the petitioner in which any assessment of losses allegedly caused to the Corporation was being undertaken.
The Court further noted that it was not even the case of the respondents that any loss had been caused to the Corporation by the petitioner's actions.
The Bench observed: “In fact, it is not even the case of the respondents that alleged acts/omissions of the petitioner have caused any loss to the Corporation.”
The Court also took note of the admitted position that the petitioner had neither drawn the charge allowance nor received the salary attached to the post of Managing Director.
The Court observed: “Thus, his alleged actions have not resulted in any monetary benefit to him nor has it resulted in any loss to the respondent Corporation.”
In such circumstances, the Court held that the respondents were not justified in withholding either terminal benefits or salary dues.
Conclusion
Allowing the writ petition, the High Court directed the respondents to release the petitioner's terminal benefits and unpaid salary expeditiously, preferably within two months from the date a copy of the order is made available to them.
The Court further directed that if the amount is not released within the stipulated period, it shall carry interest at the rate of 6% per annum from the date of filing of the writ petition until realisation.
Cause Title: Vikar Mustafa Shonthu v. Union Territory of J&K and Others
