Srinagar, Jun 10: The High Court of J&K and Ladakhhas held that mere pendency of investigation in an FIR cannot be a ground to withhold an employee’s pensionary and retiral benefits.
A bench of Justice Sanjay Dhar observed that under Article 168-A of the J&K Civil Service Regulations (CSR), recovery from pension or retiral benefits can be made only where losses caused to the employer by an employee’s negligence or fraud are established through departmental or judicial proceedings.
The court said this while dealing with J&K Projects Construction Corporation’s (JKPCC) former General Manager Vikar Mustafa Shonthu’s plea. It directed the Corporation to release all retiral dues and unpaid salary of its former General Manager.
Although another FIR registered by the Crime Branch was still under investigation against Shonthu, no charge sheet had been filed and no judicial proceedings were pending, the court noted.
The court noted that as per Article 168-A of the J&K CSR, which is also applicable to the employees of JKPCC, once a person has retired from service, no recovery can be made from his pension and retiral benefits, unless it is shown that the employer has instituted departmental proceedings for recovery of the amount on account of losses found to have been caused to the employer by negligence or fraud of the delinquent officer or official, while he or she was in service.
The loss caused to the employer on account of negligence or fraud is required to be established either in the judicial or in the departmental proceedings, the court said.
“Even though the employer is vested with a right to order recovery from the pension of any officer or official of any amount on account of losses found in judicial or departmental proceedings, which may have been caused to the employer by the negligence or fraud of a delinquent employee during his or her service, yet the same can be done only subject to conditions stipulated in Article 168-A of the J&K CSR and such losses must have been determined in departmental or judicial proceedings”.
Adverting to the facts of the present case, the court held that it was not the case of the authorities that in the departmental proceedings, loss to the JKPCC by acts or omissions of petitioner had been assessed.
In fact, it was not even the case of the respondents that alleged acts or omissions of the petitioner have caused any loss to the Corporation, it said.
“Mere pendency of the investigation, without there being a charge sheet laid before the court, cannot be termed as a judicial proceeding,” the bench said.
The Court observed that as on date, there was no judicial proceeding pending against the petitioner whereby assessment of losses that may have been caused to the JKPCC on account of acts and omissions of the petitioner was being undertaken.
While the court underscored that it was an admitted case of the respondents that the petitioner had neither drawn the charge allowance nor had he drawn the salary attached to the post of Managing Director, it said: “Thus, his alleged actions have not resulted in any monetary benefit to him nor has it resulted in any loss to the respondent corporation.”
Therefore, it was not open to the authorities to withhold the terminal benefits of the petitioner or to withhold his salary dues, the court said.
