RSA No. 3702 of 2008 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 3702 of 2008 (O&M) Date of Decision : 2.2.2009 State of Haryana & others .......... Appellants Versus Phool Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Madan Gupta, Sr. DAG, Haryana for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 5.10.2006 and 11.8.2008 passed by the learned Courts below vide which suit filed by the plaintiff-respondent for mandatory injunction directing the defendants to release the retiral benefits along with interest on delayed payments. The plaintiff-respondent joined service in the Public Health Division and retired from the post of Store Keeper, Public Health Division of Public Works Departmnet, Gurgaon on 31.1.2004. The retiral benefits of the plaintiff-respondent were not released. The plaintiff, therefore, sought mandatory injunction for directing the appellant-defendant/State to release the retiral benefits i.e. the gratuity, leave encashment etc. The suit was contested on the ground that there was an enquiry RSA No. 3702 of 2008 (O&M) -2- pending against the plaintiff-respondent on account of shortage of material and, therefore, the recovery was to be made from the plaintiff-respondent. It was for that purpose that gratuity and leave encashment stood withheld. However, the appellant failed to produce on record any file of enquiry or order of recovery. The learned Courts below in view of failure of the appellant- State to prove the pendency of enquiry decreed the suit filed by the plaintiff- respondent. The learned counsel appearing on behalf of the State-appellant contends that the following substantial questions of law arise for consideration by this Court in this appeal :- 1. Whether the gratuity and leave encashment amount of an employee can be withheld during pendency of an enquiry under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 ? 2. Whether the department is competent to initiate the regular enquiry against its employee after his retirement ? The learned Senior Deputy Advocate General, Haryana vehemently contends that the learned Courts below committed an error in law in decreeing the suit inspite of pendency of enquiry under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 It is also the contention of the learned counsel for the appellant that the Courts below wrongly held that the reasonable period is to be taken as four months instead of four years as provided under the Rules. The RSA No. 3702 of 2008 (O&M) -3- substantial question of law raised cannot be disputed. It is within the right of the State to hold an enquiry under the Rules for an act done preceding four years of his retirement. However, in the facts and circumstances of case the substantial question of law do not arise for consideration by this Court. It is not in dispute that the appellant defendant failed to produce on record any charge-sheet or enquiry file showing that any enquiry was pending against the respondent-plaintiff. The stand taken in the written statement was not proved before the learned trial Court nor any attempt was made to prove the same before the learned lower appellate Court. In absence of any evidence showing that in departmental enquiry was pending against the plaintiff-respondent the State had no right to withhold the retiral benefits. The Courts below, therefore, were right in decreeing the suit, which does not call any interference by this Court, as no substantial question of law, on the facts and circumstances of the case arise for consideration by this Court. No merit. Dismissed. 2.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE