• Criminal case pending - retirement benefits stopped

I have been retired on superannuation w.e.f. 28.02.2017 from the post of DTC Driver.There is no departmental case against me. One fetal accident case is pending against me in Hon'bl High Court. Department has withheld payment of my gratuity, leave benefits, provident fund and other admissible retirement benefits. Once i was rewarded as the best driver and now i cant get my earning of lifetime. What should i do? Kindly guide me.
Asked 7 years ago in Labour

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7 Answers

You have to look for ways for expediting the trial of the pending criminal case by obtaining a direction from high court to the trial court.

Your employer may dodge the release of payments due to you citing the pendency of the criminal cases as reason as he may apprehend the fine to be levied by court may fall on you for your negligence and compensation if any, passed by court, shall be recovered from your terminal benefits/payments.

Hence in my opinion you may not get any respite from authorities even if you get a court order owing the the lethargy of the staff and other issues.

However you may engage an advocate and issue a legal demand notice demanding your dues,. wait for their reply to proceed further as per law on this.

T Kalaiselvan
Advocate, Vellore
87009 Answers
2335 Consultations

You can approach the high court after writting a representation to your department as the supreme court has time and again held that gratuity and pension are not bounty but your rights which cannot withheld except according the procedure, however gratuity you are bound to receive and you can approach the high court directly

Anilesh Tewari
Advocate, New Delhi
18090 Answers
377 Consultations

you should make representation to DTC to release your retirement dues

2) there is no departmental inquiry pending against you

3) merely because fatal accident case is pending against you should not be ground to deny you your retirement benefits

4) case would take 10 years to be disposed of in HC . you cannot be expected to wait for 10 years for your retirement benefits

5) contact a local lawyer . file petition before CAT to direct DTC to release your retirement benefits

Ajay Sethi
Advocate, Mumbai
96809 Answers
7811 Consultations

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4. In the case of I.Yesudanam OA-2281/2009 it was held that the leave encashment and other retirement benefits could not be withheld on the ground of pendency of judicial proceedings. In the said case this Tribunal viewed that even during pendency of judicial proceedings, Govt. servant is entitled to release of leave encashment, CGIES and GPF amount payable to him. Relevant excerpt of the order passed in said case read as under:-

11. A perusal of the order passed by the Tribunal in OA-2154/2002, relied upon by the applicant, shows that Sh. J.P. Sharma was suspended on 26.02.2001 under Rule 10(1)(b) of the CCS(CCA) Rules, 1965 and superannuated on 31.03.2002 whereupon a provisional pension in terms of Rule 69 of CCS(Pension) Rules, 1972 was granted to him. He had sought payment of all retiral dues such as gratuity, leave encashment, full pension etc. with interest although he was involved in a case of embezzlement of government money and FIR was filed with respect to offences under Section 120-B, 420, 468, 477-A, IPC and 13(2) r/w 13(1)(c) of P.C. Act, 1988. Having considered the submissions made and provisions of the various Rules the Tribunal found that while no judicial proceedings could be said to have been instituted or deemed to be so, the applicant having been suspended, departmental proceedings would be deemed to have been instituted against him as per Rule (9)(6)(a) of CCS(Pension) Rules, 1972 and therefore on.ly a provisional pension could be paid. Further by reference to Rule 9(4) and 3(o) of the CCS (Pension) Rules, 1972 and keeping in view the judgment of the Apex Court in D.V. Kapoor Vs. UOI and Ors., (1990) 4 SCC 314, the Tribunal noted that use of the term pension was in contradistinction to gratuity, and thus gratuity would be payable. Again by a reference to CCS (Leave) Rules, 1972, particularly Rule 39(3) thereof it was noted that the competent authority could withhold cash equivalent of earned leave in such a case if there was a possibility of some money becoming recoverable on conclusion of the criminal/disciplinary proceedings. It was held that in absence of such satisfaction of the concerned authority having been expressed by an order in writing, the leave encashment could not have been withheld. In this background the applicant was found to be entitled to leave encashment and gratuity and also to provisional pension only.

12. When this matter was taken to the Honble High Court of Delhi in CWP No. 6465/2003 the Court took note of Rule 10 of the CCS (CCA) Rules, 1965 and Rules 9 and 69 of the CCS (Pension) Rules, 1972. The question of leave encashment was not entertained and notice was issued limited to the question of release of gratuity. The Court referred to relevant citations and in particular noted that criminal proceedings start after the filing of the chargesheet before the Court. Having examined the matter from various angles the Court came to the conclusion that in the facts of the case it could not be said that departmental proceedings had been instituted against the applicant therein, as Rule 10(1)(b) relates to suspension in a case where criminal offence is under investigation, inquiry or trial and the suspension which was ordered could not be considered to be relevant to departmental proceedings. Further, the date of suspension viz. 26.02.2001, could not be treated as the date of institution of judicial proceedings either. Thus, to give only provisional pension was found to be unjustified. But, the validity of Rules 9(4) and 69(1) of CCS (Pension) Rules, 1972, was not found to be questionable. I am therefore not persuaded that these judgments would be of any assistance to the applicant in the facts of the present case, which are at variance, so far as claim for payment of gratuity is concerned.

Ajay Sethi
Advocate, Mumbai
96809 Answers
7811 Consultations

1. The pendency of criminal case is no bar to release the retirement benefit of an employee.

2.Only of the job of the employee is terminated for any crime or other indiscipline then only that portion of loss caused to the company can be deducted from retirement benefit.

3. but under no circumstances your retirement benefit can be withheld.

4.if it is done you can apply to the Controlling Authority for such release . Writ petition is another option to get speedy remedy.

Devajyoti Barman
Advocate, Kolkata
23198 Answers
511 Consultations

Department has withheld payment of my gratuity, leave benefits, provident fund and other admissible retirement benefits.

according to judgment of supreme court in jitendra singh vs state of jharkhand AIR 2014, holding of retiral benefits is against the law because gratuity, leave benefits, provident fund are assets of employee, employer has no right to withhold for a single day. you should claim penal interest @18% thereupon.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

The reply given by the employer is not maintainable in law and cannot sustain if challenged.

Reason being that the department has not yet initiated any disciplinary proceedings against you so far.

Without any disciplinary proceedings pending against you, it would be unfair and illegal for the department to withhold your dues , you have all the rights to demand your dues till date with interest from the date it accrued till the date of settlement.

Failing to give a reply or responding in a legal manner, you may approach civil court for recovery of your amount from the department.

T Kalaiselvan
Advocate, Vellore
87009 Answers
2335 Consultations

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