Srinagar, June 14, KDC: The High Court of Jammu & Kashmir and Ladakh has held that a government department or public corporation cannot withhold the retiral benefits of an employee once the criminal charge sheet against them has been dismissed, observing that the mere pendency of an investigation does not amount to a “judicial proceeding” and cannot be used to stall pensionary dues.
A Single-Judge Bench of Justice Sanjay Dhar passed the ruling while allowing a writ petition filed by Vikar Mustafa Shonthu, a former General Manager (Civil) of the Jammu and Kashmir Projects Construction Corporation Limited (JKPCC), who had also served as the corporation’s in-charge Managing Director before retiring on April 30, 2021.
The case stemmed from an FIR registered by the Crime Branch in 2019 following a fact-finding inquiry into the functioning of JKPCC. Shonthu was subsequently suspended and subjected to a parallel departmental inquiry, which found him responsible for certain administrative lapses. Acting on the inquiry report, the corporation withheld his gratuity, leave salary and salary dues pending the outcome of criminal proceedings.
However, during the pendency of the writ petition, the Special Judge, Anti-Corruption, Srinagar, discharged Shonthu and dismissed the charge sheet filed against him.
Taking note of this development, Justice Dhar held that the very basis for withholding the retiral benefits had ceased to exist.
The Court observed that even if the departmental inquiry was assumed to have been conducted in accordance with law, the respondents had no justification in continuing to withhold the petitioner’s retirement benefits after the criminal court dismissed the charge sheet against him.
The respondents argued that benefits could still be withheld as Shonthu was named in another FIR that remained under investigation. Rejecting the contention, the Court held that the mere pendency of an investigation, without the filing of a charge sheet before a competent court, could not be termed a judicial proceeding.
Referring to Article 168-A of the Jammu and Kashmir Civil Service Regulations, the Court further noted that withholding of pensionary benefits or recovery from retiral dues can be justified only where a loss to the State or employer has been established in departmental or judicial proceedings.
The Court also observed that JKPCC had neither established nor claimed that the petitioner had caused any financial loss to the corporation and that he had not drawn any additional salary or allowances while functioning as in-charge Managing Director.
Accordingly, the High Court directed the respondents to release all terminal benefits and unpaid salary dues to the petitioner within two months from the date a copy of the judgment is furnished.
The Court further ordered that if the dues are not released within the stipulated period, they shall carry interest at the rate of six per cent per annum from the date of filing of the writ petition until final realization.
Senior Advocate Syed Faisal Qadiri, assisted by Advocate Sikander Hayat Khan, appeared for the petitioner, while Advocate M.M. Malik represented the respondents. (KDC)
