SRINAGAR: A Division of the Jammu and Kashmir and Ladakh High Court has held that pensionary benefits of a retired employee cannot be withheld merely because an FIR is under investigation, unless the conditions prescribed under law are fulfilled.
Allowing a writ petition filed by former Jammu and Kashmir Projects Construction Corporation (JKPCC) General Manager Vikar Mustafa Shonthu, Justice Sanjay Dhar directed the authorities to release his retiral benefits along with unpaid salary within two months, failing which the dues would carry interest at the rate of six per cent per annum from the date of filing of the petition.
Shonthu had challenged an enquiry report, recommendations made by the Managing Director of JKPCC, and the subsequent approval of the Board of Directors withholding his retiral benefits. He also sought release of salary allegedly withheld from November 2020 till his retirement.
The petitioner had served as Deputy General Manager before being promoted as General Manager (Civil) in 2015. In 2018, he was assigned the additional charge of Managing Director on an in-charge basis. Following a fact-finding inquiry into the affairs of the Corporation, FIR No. 10/2019 was registered by the Crime Branch and a charge-sheet was filed against him. A departmental enquiry was also initiated.
During the pendency of the writ petition, however, the Special Judge, Anti-Corruption, Srinagar discharged the petitioner in the case arising out of FIR No. 10/2019 and dismissed the charge-sheet against him.
The High Court observed that once the petitioner stood discharged and no criminal proceedings were pending before any court, the respondents had no justification to continue withholding his retiral benefits.
Justice Dhar further noted that although another FIR, No. 44/2021, was under investigation concerning alleged irregularities in the petitioner’s promotion and sanction of leave, the mere pendency of an investigation without the filing of a charge-sheet could not be treated as a judicial proceeding.
Referring to Article 168-A of the Jammu and Kashmir Civil Service Regulations, the Court held that recovery from pension or withholding of retiral benefits after retirement is permissible only where departmental or judicial proceedings establish losses caused to the employer by negligence or fraud, subject to the conditions stipulated therein.
The Court found that the respondents had neither assessed nor alleged any financial loss caused to the Corporation by the petitioner. It also recorded that the petitioner had not drawn any salary attached to the post of Managing Director or any charge allowance, meaning that his actions had not resulted in any monetary benefit to him or loss to the Corporation.
“Mere pendency of the investigation, without there being a charge sheet laid before the court, cannot be termed as a judicial proceeding,” the Court observed while ruling that it was not open to the respondents to withhold either the petitioner’s terminal benefits or his salary dues.
Accordingly, the Court directed the respondents to release all retiral benefits and unpaid salary expeditiously, preferably within two months from the date a copy of the order is made available to them by the petitioner. It further ordered that any delay beyond the stipulated period would attract interest at six per cent per annum until realization.
