- (1.) The present Letters Patent Appeal has been placed before this Bench after noticing divergent views of this Court in the judgments rendered in Gurdial Singh v. Punjab State Civil Supplies Corporation Limited and others, 2009 8 SLR 99; B.S. Gupta v. Uttar Haryana Bijli Vitran Nigam Limited and others, 2006 8 SLR 690; Dayal Singh v. Uttar Haryana Bijli Vitran Nigam, Panchkula and others, 2010 1 SLR 221and Harbhajan Singh Riar v. State of Punjab and others, 2009 8 SLR 99interpreting earlier Full Bench judgment reported as Dr. Ishar Singh v. State of Punjab and another, 1993 105 PunLR 499in different manner. Earlier, the Full Bench of this Court in the judgment dated 9.11.2012, agreed with the view taken by the Division Bench in B.S. Gupta's case , holding that the amount of leave encashment is payable to the retiring employees and cannot be withheld notwithstanding the departmental inquiry or criminal proceedings pending against an employee. However, a review application was filed by the appellant pointing out that Rule 8.21(aa) of the Punjab Civil Service Rules, Volume-I, Part-I, Chapter- VIII, adopted by the appellant, provides for withholding of leave encashment, but such Rule was not brought to the notice of the Court. Considering the aforesaid fact, the order dated 9.11.2012 was recalled on 1.8.2014 and the matter was ordered to be placed for hearing before the Full Bench and that is how we are seized of the present matter.
(2.) In Dr. Ishar Singh's case, the entire controversy was in respect of withholding or postponing of payment of pension and gratuity amount, during the pendency of the departmental inquiry. The Court considered Rule 2.2 and 9.9 of the Punjab Civil Service Rules Volume-II to hold that the gratuity can be withheld but State cannot withhold or postpone the payment of pension in anticipation of an enquiry nor can refuse to commute the pension, permissible under law. It concluded as under:- "68. In view of the observations made above, I am of the considered view that though the State has preserved its right of withholding or withdrawing compensation of affecting it as a whole partly, permanently or temporarily, yet the State cannot withhold or postpone the payment of pension in anticipation of an enquiry nor can refuse to commute the pension permissible under the law, of course, gratuity can be withheld." xxx xxx xxx 81. As a result of the above discussion, I would conclude as under:- (i) The Government has no right to withhold or postpone pension or the payment on account of commutation of pension. The State is bound to release 100 per cent pension at the time of superannuation, may be provisionally. (ii) The Government can withhold the gratuity or other retiral benefits except pension or postpone payment of the same during pendency of an enquiry. (iii) Pension cannot be adversely affected before a finding of guilt is returned. (iv) The Government can initiate departmental enquiry after long lapse before retirement, rather there is no limitation for initiating departmental enquiry from the date of incident before retirement. The delay and the explanation for the same may reasonable be taken note of keeping in view its likelihood to cause prejudice to the delinquent if the enquiry is challenged in appropriate proceedings. (v) The enquiry proceedings cannot be quashed solely on the ground of long pendency. (vi) There is no effect of superannuation on the pendency of the enquiry proceedings. (vii) The recovery of the Government dues can be made from gratuity or other retiral benefits only."
(3.) The conclusions (ii) and (vii), was the subject matter of interpretation in the earlier judgments. In some of the judgments, it is held that the amount of leave encashment cannot be withheld whereas, in another judgment, it has been held that the amount of leave encashment can be withheld during the pendency of departmental or criminal proceedings. The question to be examined is whether the leave encashment is the retiral benefits from which recovery can be effected in terms of the applicable Rules such as Rule 8.21(aa) inserted on 11.2.1987 in Punjab.;