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Abid Manzoor v. The New India Assurance Company Ltd. Thru' Its Chairman - WRIT - A No. 40610 of 2003 [2006] RD-AH 7724 (17 April 2006)


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  Reserved Judgment

Civil Misc. Writ Petition No.   40610  of 2003

Abid Manzoor ......................  ........Petitioner.


The New India Assurance Company

and others   ......... Respondents.


Hon'ble V.M. Sahai, J.

Hon'ble Barkat Ali Zaidi, J

( Delivered by Hon'ble B.A. Zaidi, J)

1. The petitioner is a Development Officer at Allahabad and he retired on 1.4.2003  under Voluntary Retirement Scheme (VRS in short).  Subsequently, his G.P.F., Leave Encashment  and other benefits were , however, withheld on the ground that the disciplinary proceeding were in progress against him, in connection with having caused a loss of Rs. 35,27,650 /-to company.

2. The contention of the petitioner is that the company can not    withhold his gratuity, Ex-gratia, payment for pension and amount of Leave Encashment   which  should have been paid to him  to him between 45 days  from 1.4.2005, when he was retired from the service after deducting  residuary  Amounts of his Loan and Advances because he retired under the VRS Scheme. Even during departmental proceedings, the provisional pension must be paid to him, and loss, if any, if found to be caused due to him, it can  only be deducted from his pensionary benefits, and his Ex-gratia, Gratuity, G.P.F. and amount of Leave Encashment cannot be made   it's subject.

3. We have heard Sri Mool Behari Saxena, learned counsel for the petitioner and Sri Parmatma Rai  learned counsel appearing for the respondents.

4. The fact that the petitioner retired under the V.R.S. Scheme, will not help him because there are no separate rules for those who retired under the V.R.S. Scheme and the regular pension rules, namely General Insurance Employer Pension Scheme, 1995 are applicable to those also who retired under the V.R.S. Scheme. Under paras 42 and 47   of the Pension Rules, which are on record, provides that any negligent act  of an employee which may have caused loss to the employer, can be enquired into  and departmental proceedings in regard to the same can be initiated  if the negligent or fraudulent act has been committed within 4 years  prior to the retirement and the pecuniary loss caused  to the Company can be recovered from his pension. This is what also the case of the respondents as will appear from Supplementary Counter Affidavit of the respondents.  In this case, the incident  which is being enquired departmentally , allegedly occurred in the year 2001 i.e. two years prior to the retirement of the petitioner. The departmental proceedings cannot be , therefore, voided on this ground.

5. The main argument from the side of the petitioner was that once the retirement of an employee is accepted by the company under the VRS Scheme, his liability for all previous charges is extinguished and he can not be proceeded again departmentally for the same. This argument is wholly untenable because as noted above, normally General Insurance Employees pension Scheme will also govern the case of retirement under the V.R.S. Scheme as there are no separate rules for the same. The mere fact that the petitioner's  services came to an end under the V.R.S. Scheme, will ipso facto not imply that he can be proceeded against for any previous misfeasance committed  by him during his tenure of service. The above scheme  has  provided for 4 years limitation and any misdemnour on the part of the part of the employee leading to  loss can be departmentally examined if it is occurred during this period.  The petitioner's contention that the final Handshake under the VRS Scheme  obliterates  all liabilities or   past actions  cannot consequently be accepted.

6. It was further contended from the side of the petitioner that as will appear from the ''Articles of charges' part of  the counter affidavit and para-4  of the Counter affidavit  that no prima-facie case is ab initio made out against the petitioner, because the fault, if any, was committed by R.K.Jaiswal   who had an independent authority to issue cover note and was solely liable  to indemnify  to the company for any  pecuniary loss caused to the company by his act  as specifically provided in para Nos. 3,4 and 8 of  ''Letter of Authority to Agents' issued by the Respondent company to Sri R.K. Jaiswal on 25.9.1985 (Annexure - 1 to the rejoinder affidavit)  and the petitioner does not come into picture at all. There seems to be prima-facie substance in the petitioner's contention that there is no direct  nexus between the act of Sri R.K. Jaiswal, (said to be the then agent) see Annexure - B  page 2 of Articles of Charges and  the petitioner and the petitioner's responsibility  is wholly illusory.  We would have, therefore, been inclined  to grant him relief, here, and now but since the enquiry  has not yet been conducted, we feel our action will be premature and we have, therefore, to wait  for  the result of the enquiry after which the petitioner can again approach this Court,  if there is need, though we are hopeful that the need will not arise and also that the enquiry will be completed expeditiously after giving the petitioner proper opportunity of hearing, afresh.

7. Now adverting to the last question, whether the Respondents can be asked to release  post retiremental benefits as detailed in para -2 hereinabove , it is itself the case of the respondents as contained in their  supplementary counter affidavit  and its Annexure S.C.A.-4, which is copy of Rule-47  that any pecuniary loss caused to the company can be recovered from the pension of the retired employee and in this situation , there remains no obstruction in holding that the petitioner is entitled to obtain all -other retirelemental benefits viz Gratuity, Leave Encashment amounts etc. baring his pension benefits viz Ex-gratia payment for pension in present case, here as the later  will be subject to the decision  of enquiry pending against the petitioner.

8. In the result, the petition is allowed with costs. The petitioner is entitled to the relief to the extent that  his other Retiremental Benefits except his Ex-gration Amount viz  in lieu of payment of Pension as he retired under  Voluntary Retirement Scheme, cannot be withheld  during departmental enquiry and the respondents are directed to release them in his favour within two months from today. The respondent company to pay the costs  to the to the petitioner. Counsel fee allowed, if certified.

Dt:      April 2006



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