A long-standing practice of encashing privilege leave can ripen into a condition of service and cannot be unilaterally departed from by the employer without lawful reason.

Judgment

DAS GUPTA, J. : The two disputes on which the reference out of which the present appeal has arisen was made were in these terms

1. Whether there has been any departure from the past practice by the Management in the matter of encashment of privilege leave and, if so, what directions are necessary in this respect ?

2. Whether leave facilities to subordinate staff should be granted on the same basis as other staff members and what directions are necessary in this respect ?

2. The workmen s contention was that since 1948 till shortly before the dispute arose the company had been encashing privilege leave standing to the credit of the workmen after keeping 30 days at the credit and this practice became by implication a part of the terms and conditions of service. The employer s case on this question of encashment was that this matter was dealt with by the company s Rule 45 under which encashment of privilege leave was permitted only "if privilege leave, which would lapse unless availed of, is refused due to urgent necessity of work, and if the company is unable to grant such lapsing privilege leave at any other time even on repeated fresh applications before the date of lapsing, an employee may be paid extra salary for that period of leave which lapses." It was further the company s contention that for some years from 1948 the company had as a matter of grace permitted encashment in other circumstances also in relaxation of Rule 45. But the concession was withdrawn in l956 and from that year when encashment was allowed it was made clear that it was not as a matter of right. On the question of leave the workers case was that there was no reason for discrimination as between them and the clerical staff in the matter of leave and that they should also be granted 30 days as privilege leave. 12 days casual leave and 12 days sick leave as enjoyed by the clerical staff, On both these points the Tribunal s decision was in favour of the workmen. On the first question the Tribunal found :-

"that there has been a continued and uninterrupted practice ever since 1948 for encashment of privilege leave, as claimed by the workmen for the purposes mentioned in Ex. W/4, that such encashment of privilege leave has ripened into a condition of service that the management departed from such practice in 1957 without lawful reasons, and that the workmen are entitled to encashment of privilege leave provided the purposes for such encashment are purchase of bicycles, incurring of expenditure on ceremonial occasions, expenditure on marriage, payment of insurance premia, payment of building loans, sickness of the employees and their dependents, additions and alterations in buildings purchase of lands, payment of private tuition fee; purchase of sewing machines, and for purposes of litigation in which employees may get involved."

3. On the question of leave the Tribunal held that there was no reason for discrimination between members of the clerical staff and the subordinate staff and the workmen belonging to the subordinate staff are also entitled to privilege, casual and sick leave in the same way as the clerical staff. Against these orders the employer has preferred this appeal.

4. The question whether encashment of leave was being allowed since 1948 in the manner as alleged is really a question of tact and we find nothing that would justify US in interfering with the decision of the Tribunal on a consideration of all the materials that there has been a continued and uninterrupted practice ever since 1948, of allowing encashment for certain purposes as set out in the award. There is first the oral testimony of A. L. Talwar, workmens witness No. 1 that there was such a practice. The management was asked to produce the applications for encashment of leave and the orders passed thereon for the years to 1948 to 1957. The management did not produce the applications for the years 1948 to 1953 on the ground that it was difficult to trace them and produced do