IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD v. Union of India and others

number of representations in paragraph No. 16 of the writ petition, that he made for the release of his salary and other dues, but, in vain. The petitioner's further case is that he has not been suspended or terminated from service. He is continuously working and discharging his duties as a Manager (Liaison) of the Corporation at Kanpur. He has not been restrained from discharging his duties, but his salary has not been paid or the medical reimbursement. It is emphasised that the order dated

29.07.2021 passed by the Chairman & Managing Director of the Corporation, withholding dues of employees mentioned in Annexure 'C' to the order, is not an order for stopping the salary, as no such order could ever be passed.

6. Aggrieved by the non-payment of his salary, the petitioner has instituted the present petition under Article 226 of the Constitution.

7. A notice of motion was issued on 02.09.2024. On 25.10.2024, a counter affidavit was filed on behalf of respondent Nos. 2 and 3. The matter was adjourned to 06.11.2024. On that date, when the writ petition came up, a rejoinder affidavit was filed by the petitioner. The parties having exchanged affidavits, the petition was admitted to hearing, which proceeded forthwith. Judgment was reserved. Writ - A No. 13397 of 2024 Page -5- of 7

8. Heard Mr. Hari Narayan Singh, learned Senior Advocate assisted by Mr. Pranjal Singh, learned Counsel for the petitioner and Mr. Sanjay Kumar Om, learned Counsel appearing for respondent Nos. 2 and 3.

9. Upon hearing learned Counsel for parties and perusing the record, what we find is that it is not the Corporation's case that in the inquiry initiated against the petitioner, he has been found guilty of depositing or causing the deposit of the employer's share of the EPF in excess. Guilt, if proved, would entail some punishment, and if not proved, would lead to exoneration. We also find that neither as a result of the inquiry or dehors the inquiry, is there any determination of the petitioner's liability for the loss occasioned to the Corporation, if any, on account of excess deposit of the employer's share to the EPF. The figure recoverable from the petitioner is also not liquidated or shown. It is all in the realm of uncertainty, if at all the petitioner has, in any way, been responsible for the alleged excess deposit. It is not the case of the petitioner in the rejoinder affidavit that the inquiry has come to its logical conclusion. At the same time, in the counter affidavit, there is no specific denial of the case in paragraph No. 10 of the writ petition that no determination of lapse in individual capacity of any officer has yet been made, or that the petitioner was posted as a Manager (Administration) at the relevant time, where, financial activities of the Corporation were the concern of the Finance Department. All that is said in paragraph No. 10 of the counter affidavit filed on behalf of respondent Nos. 2 and 3 is that it is incorrect to say that the financial activities were not his concern and it would be evident that he was responsible for the financial irregularities, according to the Chief Vigilance Officer's report. The Chief Vigilance Officer's report cannot fix responsibility for the petitioner. It can only arraign him, which has been done by issuing a charge-sheet. It is not in dispute that the inquiry has not come to its logical conclusion and fixed responsibility for the petitioner. The assertions in paragraph No. 17 of the writ petition to the effect that Writ - A No. 13397 of 2024 Page -6- of 7 the petitioner has not been suspended from service or his service terminated, has not been denied. However, the part of the assertion that there is no order passed to stop his salary and reimbursement of the medical expenses and hospitalisation charges is disputed. It is said that vide Office Order dated 29.07.2021, the Corporation have withheld the petitioner's dues/salaries as he discharged his duties negligently. It is also not denied that the petitioner has not been stopped from working and that he is discharging his duties with the Corporation.

10. This then being the position on facts, the law is very clear that for the mere arraignment of an employee and without conclusion of disciplinary proceedings, his salary cannot be withheld. There is no order fixing for the petitioner responsibility about the loss alleged by the Corporation on account of excess deposit of the employer's contribution to the EPF account of the employees. Salary and medical reimbursement are conditions attached to an employee's service, as in the case of the petitioner. Unless there is a lawful order of punishment that terminates the employer-employee relationship or directs recovery from his salary, the entire salary of an employee, who is working for the Corporation, cannot be stopped. If an order of recovery is passed, the entire salary cannot be stopped, though recovery may be made from post-retiral dues and in instalments from the salary.

11. As matters stand, with no determination of liability for the petitioner in point of fact and liquidation of that liability, the Corporation cannot withhold the petitioner's salary in the whimsical fashion they have done. Taking work from the petitioner and not paying his salary clearly amounts to the taking of begar, which is prohibited under Article 23 of the Constitution. Medical reimbursement, if due under the rules, also cannot be denied, so long as there is no determination of liability for the petitioner and liquidation of the sum. Both of these are not there. There is, Writ - A No. 13397 of 2024 Page -7- of 7 therefore, no justification for withholding reimbursement of medical expenses or hospitalisation charges, of course, subject to verification of medical bills etc. in this regard. The action of the respondents in withholding the petitioner's salary, while he is working, clearly constitutes violation of Articles 14, 21 and 23 of the Constitution and the said action of the Corporation cannot be sustained.

12. In the result, this petition succeeds and stands allowed with costs, which we quantify at 15,000 ⅎ . A mandamus is issued to the respondents, ordering the Chairman & Managing Director of the Corporation to ensure payment of the petitioner's current salary forthwith. The entire arrears of salary due to the petitioner for the month of June, 2019 until date shall be paid within six weeks of the date of receipt of a copy of this order, together with 6% simple interest per annum. The medical reimbursement and hospitalisation expenditure bills pending with the respondents shall also be sanctioned and paid to the petitioner by the Chairman & Managing Director of the Corporation within six weeks of the date of service of a copy of this order upon the Chairman & Managing Director.

13. The Registrar (Compliance) is directed to communicate this order to the Chairman & Managing Director, The British India Corporation Limited, 11/6, Parwati Bagla Road, Kanpur Nagar, Uttar Pradesh through the learned Civil Judge (Senior Division), Kanpur Nagar. Allahabad May 05, 2025 I. Batabyal (J.J. MUNIR) JUDGE Whether the order is speaking : Yes Whether the order is reportable : No Writ - A No. 13397 of 2024 ISHAN BATABYAL High Court of Judicature at Allahabad

number of representations in paragraph No. 16 of the writ petition, that he made for the release of his salary and other dues, but, in vain. The petitioner's further case is that he has not been suspended or terminated from service. He is continuously working and discharging his duties as a Manager (Liaison) of the Corporation at Kanpur. He has not been restrained from discharging his duties, but his salary has not been paid or the medical reimbursement. It is emphasised that the order dated

29.07.2021 passed by the Chairman & Managing Director of the Corporation, withholding dues of employees mentioned in Annexure 'C' to the order, is not an order for stopping the salary, as no such order could ever be passed.

6. Aggrieved by the non-payment of his salary, the petitioner has instituted the present petition under Article 226 of the Constitution.

7. A notice of motion was issued on 02.09.2024. On 25.10.2024, a counter affidavit was filed on behalf of respondent Nos. 2 and 3. The matter was adjourned to 06.11.2024. On that date, when the writ petition came up, a rejoinder affidavit was filed by the petitioner. The parties having exchanged affidavits, the petition was admitted to hearing, which proceeded forthwith. Judgment was reserved. Writ - A No. 13397 of 2024 Page -5- of 7

8. Heard Mr. Hari Narayan Singh, learned Senior Advocate assisted by Mr. Pranjal Singh, learned Counsel for the petitioner and Mr. Sanjay Kumar Om, learned Counsel appearing for respondent Nos. 2 and 3.

9. Upon hearing learned Counsel for parties and perusing the record, what we find is that it is not the Corporation's case that in the inquiry initiated against the petitioner, he has been found guilty of depositing or causing the deposit of the employer's share of the EPF in excess. Guilt, if proved, would entail some punishment, and if not proved, would lead to exoneration. We also find that neither as a result of the inquiry or dehors the inquiry, is there any determination of the petitioner's liability for the loss occasioned to the Corporation, if any, on account of excess deposit of the employer's share to the EPF. The figure recoverable from the petitioner is also not liquidated or shown. It is all in the realm of uncertainty, if at all the petitioner has, in any way, been responsible for the alleged excess deposit. It is not the case of the petitioner in the rejoinder affidavit that the inquiry has come to its logical conclusion. At the same time, in the counter affidavit, there is no specific denial of the case in paragraph No. 10 of the writ petition that no determination of lapse in individual capacity of any officer has yet been made, or that the petitioner was posted as a Manager (Administration) at the relevant time, where, financial activities of the Corporation were the concern of the Finance Department. All that is said in paragraph No. 10 of the counter affidavit filed on behalf of respondent Nos. 2 and 3 is that it is incorrect to say that the financial activities were not his concern and it would be evident that he was responsible for the financial irregularities, according to the Chief Vigilance Officer's report. The Chief Vigilance Officer's report cannot fix responsibility for the petitioner. It can only arraign him, which has been done by issuing a charge-sheet. It is not in dispute that the inquiry has not come to its logical conclusion and fixed responsibility for the petitioner. The assertions in paragraph No. 17 of the writ petition to the effect that Writ - A No. 13397 of 2024 Page -6- of 7 the petitioner has not been suspended from service or his service terminated, has not been denied. However, the part of the assertion that there is no order passed to stop his salary and reimbursement of the medical expenses and hospitalisation charges is disputed. It is said that vide Office Order dated 29.07.2021, the Corporation have withheld the petitioner's dues/salaries as he discharged his duties negligently. It is also not denied that the petitioner has not been stopped from working and that he is discharging his duties with the Corporation.

10. This then being the position on facts, the law is very clear that for the mere arraignment of an employee and without conclusion of disciplinary proceedings, his salary cannot be withheld. There is no order fixing for the petitioner responsibility about the loss alleged by the Corporation on account of excess deposit of the employer's contribution to the EPF account of the employees. Salary and medical reimbursement are conditions attached to an employee's service, as in the case of the petitioner. Unless there is a lawful order of punishment that terminates the employer-employee relationship or directs recovery from his salary, the entire salary of an employee, who is working for the Corporation, cannot be stopped. If an order of recovery is passed, the entire salary cannot be stopped, though recovery may be made from post-retiral dues and in instalments from the salary.

11. As matters stand, with no determination of liability for the petitioner in point of fact and liquidation of that liability, the Corporation cannot withhold the petitioner's salary in the whimsical fashion they have done. Taking work from the petitioner and not paying his salary clearly amounts to the taking of begar, which is prohibited under Article 23 of the Constitution. Medical reimbursement, if due under the rules, also cannot be denied, so long as there is no determination of liability for the petitioner and liquidation of the sum. Both of these are not there. There is, Writ - A No. 13397 of 2024 Page -7- of 7 therefore, no justification for withholding reimbursement of medical expenses or hospitalisation charges, of course, subject to verification of medical bills etc. in this regard. The action of the respondents in withholding the petitioner's salary, while he is working, clearly constitutes violation of Articles 14, 21 and 23 of the Constitution and the said action of the Corporation cannot be sustained.

12. In the result, this petition succeeds and stands allowed with costs, which we quantify at 15,000 ⅎ . A mandamus is issued to the respondents, ordering the Chairman & Managing Director of the Corporation to ensure payment of the petitioner's current salary forthwith. The entire arrears of salary due to the petitioner for the month of June, 2019 until date shall be paid within six weeks of the date of receipt of a copy of this order, together with 6% simple interest per annum. The medical reimbursement and hospitalisation expenditure bills pending with the respondents shall also be sanctioned and paid to the petitioner by the Chairman & Managing Director of the Corporation within six weeks of the date of service of a copy of this order upon the Chairman & Managing Director.

13. The Registrar (Compliance) is directed to communicate this order to the Chairman & Managing Director, The British India Corporation Limited, 11/6, Parwati Bagla Road, Kanpur Nagar, Uttar Pradesh through the learned Civil Judge (Senior Division), Kanpur Nagar. Allahabad May 05, 2025 I. Batabyal (J.J. MUNIR) JUDGE Whether the order is speaking : Yes Whether the order is reportable : No Writ - A No. 13397 of 2024 ISHAN BATABYAL High Court of Judicature at Allahabad