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2014 DIGILAW 3082 (MAD)

D. Muruganandam v. Secretary to Government

2014-09-03

D.HARIPARANTHAMAN

body2014
Judgment : 1. The petitioner was working as Executive Engineer, Salem City Municipal Corporation. He has rendered 37 years of service. He retired on 31.10.2012, on attaining the age of superannuation. While so, before retirement, he was placed under suspension by G.O.(2D) No.117 Municipal Administration and Water Supply Department dated 29.10.2012. He was not permitted to retire by another government order in G.O.(2D) No.119 Municipal Administration and Water Supply Department dated 31.10.2012. 2. The petitioner has filed this writ petition to quash the aforesaid Government Orders viz., G.O. (2D) No.117 Municipal Administration and Water Supply Department dated 29.10.2012 and G.O.(2D) No.119 Municipal Administration and Water Supply Department dated 31.10.2012. No counter affidavit is filed. However, the writ petition is disposed of, in view of the limited prayer that is sought by the petitioner. 3. Learned counsel for the petitioner has stated that though about 2 years have elapsed after placing the petitioner under suspension and not permitting him to retire, no charge memo was issued. In view of the pendency of the disciplinary proceedings, it is stated that the petitioner is not entitled to receive pensionary benefits viz., pension, DCRG etc., According to him, this has caused suffering at his advanced age. 4. The learned counsel for the petitioner has therefore sought for a direction to dispose of the disciplinary proceedings within the period to be stipulated by this Court. 5. It is unfortunate that even though more than 22 months have elapsed, after issuance of suspension order, the Department has not even chosen to issue charge memo. Thus, the proceeding has not yet commenced. It is not a fair act on the part of the Department to keep the disciplinary proceedings pending indefinitely. Hence I am of the view that the first respondent shall dispose of the disciplinary proceeding pursuant to placing the petitioner under suspension within a period of six months from the date of receipt of a copy of this order. 6. At this juncture, the learned counsel for the petitioner has brought to my notice that even if he is dismissed after the conclusion of the departmental enquiry, he cannot be deprived of the General Provident Fund, Special Provident Fund and the encashment of earned leave benefits. 6. At this juncture, the learned counsel for the petitioner has brought to my notice that even if he is dismissed after the conclusion of the departmental enquiry, he cannot be deprived of the General Provident Fund, Special Provident Fund and the encashment of earned leave benefits. He relied on the judgment of the learned single judge of this Court dated 04.07.2012 made in W.P.No.9519 of 2012 and also a Full Bench of the Punjab and Haryana High Court vide judgment dated 09.11.2012 in LPA No.113 of 2012 in this regard. He submitted that as far as G.P.F. and S.P.F. are concerned, it is nothing but the contribution paid by the employee and no employer could take away the money. It is his submission that as per the aforesaid decisions, the encashment of earned leave is nothing but the salary deposited with the employer for the leave period. 7. The learned single judge of this Court in W.P.No.9519 of 2012 dated 04 07.2012, has observed as follows:- "4. In view of the filing of the additional affidavit by the petitioner and having regard to the fact that special provident fund, general provident fund and encashment of earned leave cannot be withheld by the respondents even if she is dismissed from service after conclusion of the departmental proceedings, this writ petition is disposed of with a direction to the respondents to pay the petitioner the amount payable to her in respect of General Provident Fund, Special Provident Fund and encashment of earned leave to her credit within a period of four weeks from the date of receipt of a copy of this order." 8. A Full Bench of the Punjab and Haryana High Court vide judgment dated 09.11.2012 in LPA No.113 of 2012 has held thus:- "12. We are, therefore, in agreement with the view taken by the Division Bench of this Court in B.S. Gupta's case (supra) holding that amount of leave encashment is payable to the retiring employee notwithstanding the pendency of the departmental enquiry or criminal proceedings." 9. Therefore, I am of the view that the respondents cannot withhold GPF, SPF and Leave encashment amount payable to the petitioner. 10. Therefore, I am of the view that the respondents cannot withhold GPF, SPF and Leave encashment amount payable to the petitioner. 10. In these circumstances, while directing the Government to dispose of disciplinary proceedings within a period of six months, I also issue direction to the respondents to pay GPF, SPF and amount towards encashment of earned leave to the petitioner.