CWP No.9595 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9595 of 2009 Date of decision: 08.07.2010 K.D. Kaushik ....Petitioner Versus The Haryana State Small Industries and Export Corporation Limited and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. G.C. Shahpuri, Advocate, for the petitioner. Mr. Amit Jaiswal, Advocate, for respondent No.1. ***** VINOD K. SHARMA, J (ORAL) The petitioner by invoking Articles 226/227 of the Constitution of India, prays for issuance of a writ in the nature of mandamus directing the respondents to release the payment of leave encashment and a sum of Rs.50,000/- (Rupees fifty thousand only) recovered from the salary etc. and other pending dues with interest @ 21% per annum from the due date i.e. 1.7.2002 and also interest on late payment of money under Group Insurance Scheme. The brief facts leading to the filing of the case are, that the petitioner was appointed as Junior Accountant with respondent No.1 on 13.6.1974. The work and conduct of the petitioner was very good and he earned regular promotions. His services were retrenched on 1.7.2002, on account of closer of respondent No.1. Though, it was the obligation of the respondent to have cleared the retiral/retrenchment benefits due to CWP No.9595 of 2009 -2- the petitioner, however, while releasing the amount, respondent No.1 withheld the amount payable towards leave encashment and sum of Rs.50,081/- (Rupees fifty thousand and eighty one only) and Rs.1,200/- (Rupees one thousand and two hundred only) lying credited in his account. The petitioner made repeated requests for release of amount, but the respondents did not take any action on the requests, which forced the petitioner to approach this Court by filing civil writ petition No.10716 of 2005 for release of withheld retiral/retrenchment benefits along with interest. The writ petition was disposed of by this Court by passing the following order: - “We have heard the learned counsel for the petitioner at length and perused the paper book. Learned counsel for the petitioner submits that the claim in the present writ petition has also been made in the legal notice dated 28.5.2005 (Annexure P-3) filed by Advocate of the petitioner before the respondents. The respondents have not taken any decision on the same. We dispose of the writ petition at this stage with a direction to the respondent to take a decision on the legal notice (Annexure P-3) by passing a speaking order within a period of two months of the receipt of a certified copy of this order.” In pursuance to the directions issued by this Court, the respondent-Corporation, passed the impugned order justifying the withholding of the remaining retiral/retrenchment benefits on the ground of pendency of vigilance inquiry regarding recovery from sundry debtors, pending sales tax assessment cases, and unsettled audit paras having financial implications. CWP No.9595 of 2009 -3- It has been mentioned in the impugned order that the vigilance inquiry No.15 dated 15.4.2001 was instituted by the Vigilance Department, Haryana, with regard to the recovery of outstanding amount from various parties pertaining to Raw Material Depot, Faridabad of Haryana State Small Industries and Export Corp. Ltd. It has been noted that the stand of the petitioner is, that his name does not figure in the vigilance inquiry. This fact is not controverted in the impugned order, but has been said that this plea can be ascertained only after the report of inquiry is received from the Vigilance Department, Haryana. Other reasons given to justify non-payment is that the assessment of sales tax cases of the units of the Corporation in the State of Haryana is yet to be finalised as also the audit paras having financial implications to the tune of Rs.4,330/- (Rupees four thousand three hundred and thirty only) concerning the period of his stay at RMD, Faridabad. In the impugned order the respondents admitted that the petitioner is entitled to GIS refund of Rs.50,000/- (Rupees fifty thousand only) and another sum of Rs.2,000/- (Rupees two thousand only), out of which a sum of Rs.17,120/- (Rupees seventeen thousand one hundred and twenty only) has been released on 7.11.2003, and the remaining amount of Rs.42,095.79 (Rupees forty two thousand ninety fine and seventy nine paise) stands credited to his account in addition to another sum of Rs.1,200/- (Rupees one thousand and two hundred only). It is said that the amount would be released to the petitioner after settlement of pending audit paras. The only reason given to deny benefits in the impugned order CWP No.9595 of 2009 -4- again is, that the payment could not be released to the petitioner on account of pendency of vigilance inquiry. The learned counsel appearing on behalf of the petitioner contends, that the petitioner was not issued any show cause notice till date nor inquiry is pending against him either by the Vigilance Department or any other authority nor any order of punishment or recovery has been passed against the petitioner, therefore, the stand of the respondents in not releasing retiral/retrenchment benefits cannot be sustained. The learned counsel appearing on behalf of respondent No.1 on the other hand justified the order by contending, that the petitioner is directly involved in the case pending with the Vigilance Department, therefore, is not entitled to release of amount due, though it is not disputed, that no notice has been issued to the petitioner and further that no order of recovery of outstanding amount is passed against the petitioner. The respondents have also failed to show if petitioner is being tried in vigilance inquiry. On consideration, I find force in the contention raised by the learned counsel for the petitioner. It is not permissible for the employer, to withhold the retiral/retrenchment benefits of the employee, merely on vague allegations that certain vigilance inquiry is pending without specifying the involvement of the employee. Once, it is admitted that no show cause notice was issued to the petitioner, nor any order for recovery passed till date of retirement, it is not open to the employer to withhold the benefits due to the employee. The petitioner was retrenched on 1.7.2002. Till date his CWP No.9595 of 2009 -5- complete retiral/retrenchment benefits have not been released. In impugned order it is disclosed that the respondents are not aware of the progress of the vigilance inquiry and do not know even the status of the inquiry, as they have no information in this regard. The respondents are also not sure whether vigilance inquiry is against the petitioner. In view of facts stated above, the action of the respondents in not releasing the retiral/retrenchment benefits of the petitioner is totally arbitrary and hit by Article 14 of the Constitution of India. Consequently, this writ petition is allowed, writ in the nature of mandamus is issued to the respondents to release the leave encashment and all other dues of the petitioner forthwith, in any case, not later than one month of receipt of certified copy of this order. The petitioner would also be entitled to interest on the amount outstanding @ 9% per annum commencing from 1.7.2002 till the date of payment. No costs. (Vinod K. Sharma) Judge July 08, 2010 R.S.