RSA No. 4158 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4158 of 2008 Date of Decision: 31.7.2009 The State of Punjab and others ......Appellants Versus Shri Sudama Bhagat .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Ms. Ambica Luthra, AAG, Punjab, for the appellants. Shri ADS Ghuman, Advocate, for the respondent. HEMANT GUPTA, J. (Oral). The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the plaintiff has been held entitled to the interest on the amount of death-cum-retirement gratuity and General Provident Fund, besides holding that the deduction of the amount of Rs. Rs.32,885/- made by the defendant-appellants, was unjustified. The plaintiff-respondent filed suit for declaration challenging non-payment of retiral benefits, immediately after his retirement. The plaintiff attained the age of superannuation on 28.2.2004, but the amount of gratuity amounting to Rs.2,66,310/- was paid to the plaintiff on 2.9.2005 and payment of Rs.1,46,275/- on account of General Provident Fund was RSA No. 4158 of 2008 (2) made on 22.12.2004. However, while making such payment, a sum of Rs.32,885/- was withheld. It was the stand of the defendant-appellants that 90% amount of the General Provident Fund was paid to the plaintiff on 18.8.2003, before the superannuation of the plaintiff and remaining 10% was paid after adopting the procedure laid down by the Government. It has also been pointed out that the charge-sheet was issued to the plaintiff after considering the report of the Election Commission, Punjab. On account of retirement of the plaintiff, the Punishing Authority took a sympathetic view and issued a punishment of censure vide order dated 28.7.2005 and thereafter, the gratuity was released to the plaintiff on 2.9.2005. Therefore, it cannot be said that there was any undue delay in release of the gratuity amount. It was also stated that the plaintiff-respondent availed refundable loan of Rs.4200/- and the said amount was deducted by the Department. The plaintiff has admitted the adjustment of the said amount before the trial Court itself. The learned trial Court ordered the defendants to pay interest on the amount of death-cum-retirement gratuity as well as the amount of General Provident Fund. The defendants were also directed to refund an amount of Rs.28,685/- i.e., the amount after adjustment of Rs.4200/- paid to the plaintiff with penal interest. Such finding was affirmed in appeal as well. I have heard learned counsel for the parties on the following substantial questions of law:- 1. Whether the plaintiff is entitled to interest on the Death- cum-Retirement Gratuity for the period, the disciplinary proceedings were pending? RSA No. 4158 of 2008 (3) 2. Whether refund of Rs.28,685/- can be set aside without examining the possibility of such adjustment by the defendants? A Full Bench of this Court in Dr. Ishar Singh v. State of Punjab and others , 1993(3) PLR 499, has held that pending disciplinary proceedings, the death-cum-retirement gratuity can be withheld in terms of Rule 9.16 of the Punjab Civil Services Rules. It was concluded as under:- “57. xx xx xx (i) The Government has no right to withhold or postpone pension or the payment on account of commutation of pension. The Stat is bound to release 100 per cent pension at the time of superannuation, may be provisionally. (ii) The Government can withhold the gratuity or other retiral benefits except pension or postpone payment of the same during pendency of an enquiry. xx xx xx” In view of the aforesaid judgment, the withholding of the Death-cum-Retirement Gratuity till the conclusion of the inquiry, cannot be said to be illegal or unwarranted. Therefore, the grant of interest on the aforesaid amount of gratuity runs counter to the Full Bench judgment of this Court. In respect of the refund of the amount of Rs.28,685/-, the decree is modified so as to grant liberty to the defendants to issue a show cause notice and if the recovery is permissible in law, to recover the same from the plaintiff, in accordance with law. The other direction is for payment of interest on the amount of General Provident Fund. The said interest has been ordered to be paid without examining the fact that the amount of General Provident Fund RSA No. 4158 of 2008 (4) carries interest till the amount is actually paid to an employee. Therefore, the said part of the decree is modified and it is held that the defendants would be liable to pay interest @ 6% p.a. on the amount of General Provident Fund, if the interest on the amount of the General Provident Fund has not been paid till the date of payment to the plaintiff With the above modification in the decree, the present appeal is disposed of with no order as to costs. (HEMANT GUPTA) JUDGE 31.7.2009 ds