The Secretary To Government v. G.Nandakumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.10.2021

CORAM

THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN AND THE HONOURABLE MR. JUSTICE R. VIJAYAKUMAR W.A. No. 1907 of 2021 & C.M.P No. 12287 of 2021 1.

The Secretary to Government, School Education (OP2) Department, Fort St. George, Chennai - 600009.

The Under Secretary to Government, School Education (OP2) Department, Fort St. George, Chennai - 600009.

... Appellants Vs.

G. Nandakumar ... Respondent Prayer:

Writ Appeal as against the order dated 14.10.2019 in W.P. No. 28394 of 2019.

Prayer in W.P. No. 28394 of 2019.

Writ of Certiorarifield Mandamus, Call for the records of the 2nd respondent in connection with the impugned order passed by him in Letter No.17463/OP 2/2019 -1 dated 25/07/2019 and quash the same and direct the respondents to draw and disburse the provisional pension and other retirement benefits namely encashment of surrender leave for 240 days, encashment of unearned leave on Private Affairs for a period of 3 months and Special Provident Fund due to him within the time limit fixed by this Court.

For Appellants ::

Mr.K.V. Sajeev Kumar Govt. Counsel For Respondent ::

Mr.M. Azhagu Goutham

J U D G M E N T

(Judgment of the Court was delivered by S. VAIDYANATHAN,J.) The present writ appeal has been filed challenging the order dated 14.10.2019 in W.P. No. 28394 of 2019.

The writ petition was filed by the respondent/writ petitioner seeking a direction to the 2nd appellant herein to disburse provisional pension and other retirement benefits, namely, encashment of Surrender Leave for 240 days, encashment of Unearned Leave on Private Affairs for a period of three months apart from Special Provident Fund.

3.

When the matter was heard by the learned Single Judge , the learned Government Advocate conceded that eligible amounts would be paid within a reasonable time. Based on that, the learned Single Judge had disposed of the writ petition directing the appellants herein to pay the eligible benefits to the writ petitioner, who is the respondent herein.

4.

This Court, in the judgment dated 15.09.2021 rendered in W.A. No. 269 of 2020 (The Superintending Engineer, TNEB, Chennai, V.A. Venkatesan) has observed that except Gratuity, other amounts will have to be paid and the relevant portions are extracted hereunder:

7. On perusal of the documents, it is seen that the Respondent / writ petitioner has been facing disciplinary proceedings for which he has been suspended from service and thereafter, it was set aside. Subsequently, there was an initiation of Departmental Proceedings and in the meanwhile, he attained the age of superannuation on 31.08.2018. As per the Board proceedings dated 06.11.1996, referred to by the Appellant, the respondent will not be entitled to pension and gratuity. Though the Apex Court in the case of State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Others, reported in 2013

(12) SCC 210, held that even a part of pension or gratuity cannot be withheld, in recent cases in Steel Authority of India Ltd., vs. Raghbendra Singh and Others (MANU/SCOR/46090/2020) and Chairman-cumManaging Director, Mahanadi Coalfields Limited vs. Rabindranath Choubey, reported in AIR 2020 SC 2978, it was observed that the employer has a right to withhold gratuity during pendency of the disciplinary proceedings and that the gratuity amount can be adjusted to recover the amount.

8. If the order of the learned Single Judge is tested in line with the aforesaid decisions of the Supreme Court, a portion of the order of the learned Single Judge, insofar as it grants gratuity and other pensionary benefits, is liable to be interfered with and the order needs slight modification. Accordingly, the order of the learned Single Judge in respect of pension and gratuity alone is set aside.

5.

In view of the submission made by the learned Government Advocate before the learned Single Judge, the eligible amount in entirety will have to be paid to the writ petitioner/respondent herein and we see no reason to interfere with the order passed by the learned Single Judge. Hence, the writ appeal stands dismissed.

6.

Since the time limit given by the learned Single Judge has already expired, two months time from the date of receipt of a copy of this order is granted to the appellants to disburse the entire amount to which the writ petitioner is eligible. No costs. Connected C.M.P. is closed.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar nv To

1. The Secretary to Government, School Education (OP2) Department, Fort St. George, Chennai - 600009.

The Under Secretary to Government, School Education (OP2) Department, Fort St. George, Chennai - 600009.

+1cc to Mr.M.Muthappan, Advocate, S.R.No.54535 +1cc to the Government Pleader, S.R.No.55033 W.A. No. 1907 of 2021 NK(CO) CT 25/01/2022