IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10676 of 2006 Anand Kishore son of Late Ram Chandra Prasad, C/o Pramod Kumar, near- Old Dharamshala- Behind Keyal Building, Mohalla- Lal Bazar, P.O.- Bettiah, P.S.- Bettiah, District- West Champaran. .... Petitioner. Versus 1. Managing Director, Bharat Wagon & Engineering Company Limited (A Govt. of India undertaking), Maurya Lok Complex, Block-C, 5th Floor, Dak Banglow Road, Patna. 2. Bharat Wagon & Engineering Company Limited (A Govt. of India undertaking), Mouryalok Complex, Block-C, 5th Floor, Dak Banglow Road, Patna through its Company Secretary. 3. General Manager (Finance), Bharat Wagon and Engineering Company Limited, (A Govt. of India Undertaking), Mourya Lok Complex, Block-C, 5th Floor, Dak Bunglow Road, Patna. 4. Manager (P & A), Bharat Wagon and Engineering Company Limited (A Govt. of India Undertaking), Mourya Lok Complex, Block-C, 5th Floor, Dak Bunglow Road, Patna. 5. General Manager, Bharat Wagon and Engineering Company Limited, Muzaffarpur Unit (A Govt. of India Undertaking), Muzaffarpur. 6. Chief Manager (Works Cum Unit Head), Bharat Wagon and Engineering Company Limited, Muzaffarpur Unit (A Govt. of India Undertaking), Muzaffarpur. 7. Incharge (P & A), Bharat Wagon and Engineering Company Limited, Muzaffarpur Unit (A Govt. of India Undertaking), Muzaffarpur. 8. Meera Devi, wife of Anand Kishore, residing at New Market, Laheriasarai, P.S. Laheriasarai, District- Darbhaga. ...... Respondents. ----------- 07- 14.11.2008 Heard Mr. Bipin Kumar Sinha for the petitioner, Mr. Udayan Choudhary for respondent nos.1 to 7, and Mr. Rajani Kant Jha 2 for respondent no.8. The petitioner is an employee of the respondent Bharat Wagon and Engineering Company Limited (hereinafter referred to as „the Company‟), a Public Sector Undertaking of the Government of India, and last worked as Assistant Manager (Works). Respondent no.8 is the estranged wife of the petitioner. They are not living together but are not formally divorced. The petitioner seeks a direction to the respondent authorities, inter alia, to make payment of his salary for the period 26.4.2000 to 28.5.2002. 2. The petitioner at the relevant point of time was functioning as Assistant Manager (Works) in one of the factories of the respondent-Company. It is a Government of India undertakings, the entire shares of which are held by the President of India or its official nominees. The petitioner is married to respondent no.8. In view of the criminal case started by respondent no.8 against the petitioner in terms of section 498-A of the Penal Code, the petitioner was in custody from 5.12.1999 to 6.4.2000, during which period he could not report for duties. He was served with the charge-sheet dated 14.6.2000 3 (Annexure-15), wherein the following articles of charges were framed against him: i) That the said Shri Anand Kishore is absenting from duty with effect from 6.12.999 without obtaining permission/intimation from the Competent Authority. ii) That the said Shri Anand Kishore has been negligent in performance of his duties while on duty. iii) That Shri Anand Kishore has committed act which amounts to a criminal offence. iv) That the said Anand Kishore thereby has acted in a manner prejudicial to the interest of the Company. 3. The petitioner had shown cause by his communication dated 4.7.2000 (Annexure-16), wherein he, inter alia, stated that he had reported for duties on 26.4.2000, but his joining was not accepted. Although no specific case for his absence from 5.12.1999 to 6.4.2000, the period during which he was in custody in connection with the criminal case, was made out but then he did make fleeting reference of his custody. It appears that the Managing Director sat over the matter for quite some time and ultimately passed the order dated 17.5.2002 (Annexure-20), the text of which is reproduced hereinbelow for the facility of quick reference: 4 “This has reference to our letter No.BWH/22473/1072 dated 14.6.2002 and a subsequent enquiry held into your case vide letter No.BWH/22473/1746 dated 26/27.7.2000. In this connection we wish to inform that you are given an opportunity to report to General Manager, Muzaffarpur, for assignment at Bela Works. Further the period of your absence from duty will be treated as Dies-Non.” 4. In the meantime, the petitioner had submitted his application dated 25.3.2002 to avail of the benefit under the Voluntary Retirement Scheme floated by the Company. The petitioner, in compliance of the said order dated 17.5.2002 (Annexure-20), reported for duties on 27.5.2002. His application for V.R.S. was accepted by the Company and he was relieved with effect from 31.5.2002, and he ceased to be an employee. The petitioner has filed this writ petition for a direction to the respondent authorities to give to him the salary for the period 26.4.2000 to 28.5.2002. Relying on a circular of the Income-tax Department marked Annexure-21 that an amount up to Rs.5,00,000/- (five lacs), or the proceeds of the V.R.S., whichever is lower, shall not be taxable. The petitioner complains that this provision has been overlooked, the 5 exemption has not been noticed by the Company, and income-tax at source on the exempt amount has also been deducted. Learned counsel for the petitioner also prays for payment of notice pay. He lastly submits that in view of the break-down of his marriage, it is now not possible to provide joint photographs of the petitioner and his wife (respondent no.8), as called upon by the communication dated 7.6.2008 (Annexure-23). The same may, therefore, be dispensed with. It is relevant to state that respondent no.8 (petitioner in the analogous C.W.J.C. No.5959 of 2004), filed an application before the Family Court, Darbhanga, for grant of maintenance allowance against the petitioner which has been allowed and the petitioner has been directed to pay a sum of Rs.400/- per month to respondent no.8 towards maintenance. A portion of this amount has been realised from the petitioner‟s salary so long he was in service and paid to respondent no.8, as is evident from the communication dated 18.3.2008 (Annexure-22), from the Principal Judge, Family Court, Darbhanga, to the General Manager of the Muzaffarpur unit of the respondent-Company. 6 5. Learned counsel for respondent nos.1 to 7 and respondent no.8 have made their separate sets of submissions. Respondent no.8 has, inter alia, submitted that it is evident that respondent nos.1 to 7 have withheld 40% of the dues of the petitioner which may be directed to be paid to her towards arrears of maintenance claim and future dues which is really her submission in the analogous case C.W.J.C. NO.5959 of 2004, wherein she is the petitioner. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that on account of the matrimonial dispute, the petitioner has been subjected to a prosecution under section 498-A of the Indian Penal Code. He was under-trial prisoner from 5.12.1999 to 6.4.2000. As per the cause shown by the petitioner (Annexure-16), he claims to have reported for duties on 26.4.2000 but the same was not accepted for a long time. This aspect of the matter seems to have been disposed of by a cryptic letter dated 17.5.2002 (Annexure-20), which is reproduced hereinabove. It appears to me on a perusal of the materials on record including Annexure-20 7 that the respondent authorities condoned the petitioners absence from 26.4.2000 till the date of issuance of the communication dated 17.5.2002, gave him another opportunity to report, and his absence from duty was treated as “Dies Non”. The petitioner did report for duties on 27.5.2002, he was allowed to join, followed by the order allowing him to proceed on voluntary retirement. It thus automatically follows that the respondent authorities allowed the petitioner to resume his duties without any conditions. The expression “Dies- Non” used in the order does not seem to convey the intention of the respondent-authorities accurately. We are, therefore, left guessing in the matter. However, taking into account paragraph no.2 of the letter, it appears to us that the respondent authorities had taken a lenient view of the petitioner‟s absence from 6.12.1999 to 25.4.2000, the major portion of which was on account of his custody and was entirely on account of the unfortunate matrimonial dispute. It, therefore, follows as a matter of necessary implication that the petitioner had reported for duties on 26.4.2000, was not by the local authorities permitted to join, and the matter lingered for 8 the reasons entirely attributable to the respondent authorities. The respondent authorities did not intend to inflict any punishment on the petitioner and had instead decided to allow him to proceed on voluntary retirement which came on the heels of it and became effective from 31.5.2002. Therefore, the respondent authorities should pay to the petitioner the salary for the period 26.4.2000 to 28.5.2002. 7. Learned counsel for the petitioner has relied on Clauses 4 and 14 of the Voluntary Retirement Scheme (Annexure-B), and submits that he is entitled to the notice pay. Learned counsel for respondent nos.1 to 7 has opposed this prayer. Clauses 4 and 14 of the Voluntary Retirement Scheme are set out hereinbelow for the facility of quick reference: 4. Can notice pay in lieu of notice and T.A. for setting it the Home Town or elsewhere be paid to the employees who are to opt or have opted for VRS? One month/three months notice pay (as per service conditions applicable to the employees) may be paid TA for the employee and family would also be admissible to the place where he intends to settle town after taking VRS. For this purpose, the entitlement will include transportation cost of personal effects and travelling cost of self and family members, as 9 admissible under the entitled classes. 14. Whether the notice period pay is to be paid in addition to 60 months salary as compensation in case an employee has completed 30 years of service and the remaining period of service is 75 months. If the application of an employee for voluntary retirement is accepted instantaneously and payment is arranged by the management on the same day, the concerned individual would be entitled to payment of ex- gratia along with the notice period pay. It is however, clarified that payment of ex-gratia for service rendered or left over service before Superannuation as well as the amount payable for the notice period should not exceed the basic pay plus DA that would have been paid to the employee who has opted for voluntary retirement till the date of his superannuation. For example, if an employee opts for voluntary retirement few months before the date of superannuation, say at 57 years and 10 months, the payment should be restricted to 2 months basic pay plus Dearness Allowance. In circumstances where the management takes time to take a decision about the acceptance of an application submitted by the employee for voluntary retirement and allows the notice period to lapse or the individual concerned has drawn full salary during the notice period served by him, in these cases notice period pay would not be admissible as the individual has already 10 drawn the salary during the notice period. It appears to me that one month/three months notice pay as per the service- conditions shall normally be admissible to an employee, except in cases where the application of an employee for voluntary retirement is accepted instantaneously and payment is arranged by the management on the same day. The intention is obvious that, if the management acts on both the counts with utmost promptitude, the delay causing harassment to the employee is ruled out and he is not entitled to the notice pay. In the present case, the petitioner‟s application dated 15.3.2002 was accepted towards the end of May, 2002, and he was released from service with effect from 31.5.2002. According to paragraph 4 of the Company‟s counter affidavit, the payments were made to the petitioner in the following manner: “4. That as per Company‟s records a total sum of Rs.8,15,352.10 was payable to the petitioner out of which Rs.3,00,000/- was paid to him on 8.8.2002, Rs.1,37,391/- was paid on 30.1.2006 and a further sum of Rs.12,587/- was paid on 9.3.2006. Thus, a total sum of Rs.4,49,978/- has been paid to the petitioner. From the total payable amount, i.e. 11 Rs.8,15,352.10 the following deductions have been made: 1. Income Tax - Rs.42,115.00 2. Salary advance- Rs.5,143.00 3. Paid to Meera - Rs.16,800/- Devi, wife of Petitioner. It is thus manifest that payment has not been made to the petitioner same day, as such he is entitled to the notice pay as per the service conditions applicable to the petitioner. 8. Learned counsel for the petitioner is right in his submission that in view of the matrimonial dispute, it is not possible for the petitioner to provide joint photographs with his wife. In that view of the matter, let the petitioner and respondent no.8 submit their separate photographs directly to the respondent-Company. 9. The respondent authorities shall examine the petitioner‟s grievance regarding deduction of income-tax at source. If Company reaches to the conclusion that it erroneously has deducted extra income-tax at source, and even if deposited with the Income-tax Department, the petitioner shall be paid his entire entitlement, and the Company shall take 12 refund from the Income-tax Department without withholding the petitioner‟s entitlement. 10. As jointly prayed for by the learned counsel for the petitioner and respondent no.8, the entire unpaid amount of the petitioner may directly be paid to respondent no.8 towards her claim for maintenance allowance granted by the Family Court, Darbhanga, towards the arrears of claims or the claims arising in future. It is made clear that this amount shall be handed over to respondent no.8 towards adjustment of her dues granted by the Family Court and she shall be entitled to recover further amount after adjustment of the present amount. 11. The writ petition is accordingly disposed of. The analogous C.W.J.C. No.5959 of 2004, is also disposed of in the aforesaid terms. (S K Katriar, J.) S.K.Pathak/