C/SCA/12619/2024 ORDER DATED: 07/10/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12619 of 2024 ========================================================== KISHORKUMAR JAYANTILAL SHAH Versus THE MANAGING DIRECTOR & ORS. ========================================================== Appearance: MR. NISARG N JAIN(8807) for the Petitioner(s) No. 1 MR HS MUNSHAW(495) for the Respondent(s) No. 1,2,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Date : 07/10/2025 ORAL ORDER 1. Heard learned Advocate Mr. Nisarg Jain on behalf of the petitioner and learned Advocate Mr. H.S. Munshaw on behalf of respondent no. 1. 2. By way of this petition the petitioner has prayed for following prayers: “7.(a) to admit this petition and allow the same by issuing Notice for Final Disposal on returnable date as the petitioner has already retired on 31-10-2019 and yet he is not paid his retirement benefits; (b) to direct the respondents to forthwith pay to the petitioner all his retirement benefits including the full amount of PF, full amount of Gratuity, full amount of medical, Group Insurance and Leave Salary etc; (c) to direct the respondents to forthwith pay the unpaid arrears of subsistence allowance at the rate of 50% for the period from 11.10.2018 to 15- 03-2019 and subsistence allowance at the rate of 75% for the period from 10.04.2019 to 31.10.2019. (d) to direct the respondents to pay all the retirement benefits and arrears of subsistence allowance and unpaid salary to the petitioner along with the interest thereon at the rate of 18% per annum w.e.f. 31-10-2019; C/SCA/12619/2024 ORDER DATED: 07/10/2025 (e) Pending the hearing and final disposal of this petition, be pleased to direct the respondents to compute and to deposit all the retirement benefits of the petitioner and arrears of subsistence allowance in this Hon’ble Court within 15 days; (f) to allow this petition with appropriate costs of at least Rs.1,00,000/- to be paid to the petitioner by the respondent no. 1; 3. Considering the submissions made by learned Advocates for the respective parties, it would appear that the issue raised in the present petitions is in very narrow compass. It appears that the present petitioner was working with the respondents, as Field Assistant - III had retired upon attaining age of superannuation on 31.10.2019. It appears that prior to his retirement, the petitioner as well as various other officers of the respondent- Corporation were arraigned as accused in different criminal complaints and it is stated by learned Advocate for the respondents that the petitioner is shows as accused in total of 4 different FIRs. It appears that the grievance being raised is that inspite of retirement, the petitioner has not been paid any retiral benefits and whereas there is no service rules which permit the respondents to withhold retiral benefits indefinitely. Further, the subsistence allowance is also not properly and fully paid. 4. As against the same, it is attempted to be submitted by learned Advocate for the respondents that since the petitioner is arraigned as an accused in multiple FIRs, it was decided not to pay him retiral dues till finalization of the criminal cases. 5. To a specific query, as regards the legal sanction for taking such a decision, learned Advocate Mr. Munshaw could not from the affidavit-in- reply or even otherwise point out to any provision which would empower the respondents to take such a stands. Page 2 of 6 C/SCA/12619/2024 ORDER DATED: 07/10/2025 5.1 It is at this stage pointed out by learned Advocate for the respondent that while the respondent Corporation in absence of any statutory provision which empowers them, may possibly be required to make payment of the amount of Contributory Provident Fund due to the petitioner as well as gratuity due to the petitioner. Learned Advocate Mr. Munshaw would further submit that the petitioner may not be entitled to benefit of the amount of Leave Encashment more particularly since the same are not statutory rights of the petitioner and whereas the same are made entitled to employees by way of policy of the Corporation. 6. Considering the submissions, to this Court while it appears that the respondents could have withheld the retiral benefits of the petitioner, till a period of two years from the date of retirement as per the provisions of the Gujarat Civil Services ( Pension) Rules, yet, upon completion of two years the Government Employee is entitled to all the retiral benefits except 10% or Rs. 15000/- of gratuity. Such an observation since the petitioner is governed under the Contributory Provident Fund scheme therefore, there is no question of being entitled to pension /provisional pension. 7. At this stage, it would be also relevant to mention that while the respondents are relying upon the FIRs in which the petitioner is arraigned as an accused, yet it would appear that even after around seven years of the FIR being filed, no departmental charge–sheet appears to have been issued against the petitioner and no action departmentally appears to be taken which could have probably empowered the respondents to withhold the retiral benefits as could be paid to the petitioner. 8. Again while it appears that the respondent is contesting the right of C/SCA/12619/2024 ORDER DATED: 07/10/2025 the petitioner for amounts of leave encashment, yet, there is no policy of the respondents which is relied upon on basis of which this Court could approve such a decision. On the other hand, nothing otherwise is stated/produced by the petitioner whereby the entitlement of the petitioner could be confirmed inspite of a contrary stand by the respondents. Hence at this stage the issue requires to be relegated to the respondents for taking an appropriate decision in accordance with law. 9. Having regard to the above, in the considered opinion of this Court since the issue of release of amount of Contributory Provident Fund and gratuity, no more in dispute and whereas the issue of leave encashment being required to be finalized, the following directions in the considered opinion of this Court would meet with the ends of justice: [1] The respondent- Corporation is directed to release the amount of Contributory Provident Fund and gratuity due to the petitioner within a period of four weeks from the date of receipt of this order. In consequences, the order dated 05.01.2024 passed by the respondent o.2 withholding the gratuity above Rs.15,000/- is quashed and set aside. [2] 50% of subsistence allowances from 11.10.2018 to 15.03.2019 and @ 75% of salary from 01.04.2019 to 31.10.2019, prior to the retirement of the petitioner, the respondents shall take an appropriate decision more particularly after verifying the record and whereas appropriate payment shall be made to the petitioner in case the petitioner is deemed entitled to the same. The said exercise shall also be completed within a period of four weeks from the date of receipt of this order. Page 4 of 6 C/SCA/12619/2024 ORDER DATED: 07/10/2025 [3] Insofar as the issue of leave encashment, it is clarified that this Court has not entered into merits of the matter and the petitioner to make a representation to the respondents within a period of ten days from today and the respondent to take appropriate decision within a period of 8 weeks thereafter. A speaking order giving reasons for rejection shall be provided in case the request of the petitioner is rejected by the respondents. [3.1] In so far as the issue of retirement travelling allowance, the respondents are directed to consider the same in light of Resolution dated 23.04.2015 of Finance Department, more particularly, the representation for grant of leave encashment shall also contain a request for same and whereas in the decision, which would be taken as above. The said aspect shall be dealt with appropriately. [4] In case the request is accepted then appropriate disbursement shall be made within further period of four weeks. [5] Insofar as the controversy with regard to interest on Contributory Provident Fund and gratuity is concerned, it is fairly pointed out by learned Advocate Mr. Munshaw that the amount of CPF is maintained by a Trust of the Corporation which holds the CPF amount as paid by LIC and whereas gratuity with the respondent would earn interest at the rate of 8.05 %. The respondents therefore to ensure that the amount of CPF being disbursed shall carry interest at the rate of 8.05% as earned. Page 5 of 6 C/SCA/12619/2024 ORDER DATED: 07/10/2025 10. With the above observations and direction, the present petition stands disposed of. Direct service is permitted. (NIKHIL S. KARIEL,J) Y.N. VYAS Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: YAGNESH NARENDRABHAI VYAS(HC00207), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 09/10/2025 14:56:12