IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4506 of 2004
Birendra Kumar Sinha... ... ... ... Petitioner
Versus
Jharkhand State Mineral Development
Corpn Ltd. & Ors.................................. Respondents
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CORAM: HON'BLE MR. JUSTICE AJIT KUMAR SINHA
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For the Petitioner: Mr. Naresh Prasad Singh
For the Respondents: Mr. Anoop Kr. Mehta
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3/2.3.2009
The present writ petition has been preferred for issuance of
a writ of or in the nature of mandamus directing the respondents
for following reliefs:
a) To pay the amount of leave encashment equivalent to 240 days
of earned leave balance to the credit of the petitioner at the
time of his retirement.
b) To release Rs.49,208/- which has been unlawfully deducted
from the amount of gratuity payable to the petitioner.
c) To pay the statutory and penal interest on all delayed payments
from the date it became due till the date the same are paid to
the petitioner.
d) To pay the cost of litigation.
In the counter affidavit filed by the respondents it is no
where denied about the fact that there was any proceeding
initiated against the petitioner while he was in service or any
recovery proceeding or any misconduct proceeding or charges
leveled against him. The only averments made at internal page 3
of the counter affidavit is that there was an Office Order contained
in memo no. 2779, dated 24.06.1989 indicating that all advances
must be adjusted within 15 days.
The fact remains that the petitioner retired on 31.7.2003
i.e. 14 years thereafter but nothing happened and the adjustment
pursuant to retirement was without any show cause or any notice
and on the face of it erroneous and illegal in view of the settled law
as held by this Hon’ble Court in a Judgment of Full Bench reported
in 2007(4) JLJR pgs. 451, 459 and 466 as well as order dated
25.2.2009 passed by this court in W.P.(S) No. 5401 of 2007.
The counsel for the respondents fairly submits that there is
no proceeding pending against the petitioner except the issuance
2.
of notice but no action was taken nor any proceeding was initiated
against the petitioner.
Considering the facts and circumstances of the case and as
per settled law that in absence of misrepresentation and fraud on
part of the employee, the equity is in favour of him and thus the
respondents are directed to refund the amount of Rs.49,208/-
already deducted from the retiral benefit of the petitioner and they
will also take a decision with regard to leave encashment of
earned leave balance of the petitioner in accordance with law and
communicate the same to the petitioner within a period of two
months from the date of receipt/production of a copy of this order.
This writ petition is accordingly allowed without any order as
to costs.
(Ajit Kumar Sinha, J)
Sudhir/F.A.