Court No. - 34
Case :- WRIT - A No. - 13087 of 2018 Petitioner :- Dinesh Kumar Tyagi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sunil Kumar Singh,Surendra Prasad Sharma Counsel for Respondent :- C.S.C.,Shiv Nath Singh
Hon'ble Sudhir Agarwal,J. Hon'ble Ifaqat Ali Khan,J.
1. Petitioners' demand for retiral dues has been rejected. With respect to gratuity it is rejected on the ground that a Police investigation is pending but with respect to leave encashment and other dues, it has been denied on the ground that funds are not available with U.P. Industrial Cooperative Association Limited (hereinafter referred to as "UPICA") and for that purpose funds have been demanded from Government.
2. So far as non payment of gratuity is concerned, a Division Bench of this Court in State of U.P. and others Vs. Jai Prakash 2014 (1) ESC 511 has held that in a pending criminal case, gratuity can be withheld, hence no relief can be granted in this regard.
3. So far as other retiral dues, including leave encashment, are concerned, mere financial scarcity cannot be a ground to deny the same. Whether delay in payment of retiral benefits on account of financial crisis can be held to be just and valid, we find that this issue has already been considered in Samal Chand Tiwari vs. State of U.P. & others 2006 5 AWC4991All, wherein after referring various authorities of Apex Court on the issue, Court held:
"Similarly financial crunch or shortage of funds would not be a valid defence for the State where it is bound to discharge its duties which are statutory or constitutional is also the view taken by the Apex Court in the case of Secretary, Ministry of Chemicals & Fertilizers, Government of India Vs. Cipla Ltd. and others, 2003(7) SCC page 1 and the The State of Gujarat and another Vs. Shri Ambica Mills Ltd., Ahmedabad and another, 1974 (4) SCC 656 para 54 to 63 and AIR 1987 SC 157, para 92, 93 and 99. In the present case, the petitioner has a fundamental right to earn livelihood under Article 21 of the Constitution of India which includes that after the retirement he is also entitled to receive his deferred wages in accordance with rules. Non payment of retiral benefits, therefore, of the petitioner is violation of the petitioner's fundamental right under Article 21 of the Constitution of India.
The respondents have not shown any where as to what efforts they have made to arrange the requisite finance for payment of retiral benefits to the petitioner, who has retired as long as on 31st October 2001, i.e more than four years ago. Counter affidavit is completely silent on this aspect and shows the total laxity and apathy on the part of the respondents."
4. We, therefore, dispose of the writ petition directing respondents-2 and 3 to ensure payment of all retiral dues to petitioner, except gratuity, which are withheld on the alleged pretext of want of fund, within two months from the date of production of certified copy of this order.
Order Date :- 29.5.2018 PS