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2020 Supreme(Kar) 117
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI MALIMATH, M.I. ARUN, JJ.
The General Manager Vijaya Bank, Bengaluru – Appellant
Versus
H.C. Jayaprakash S/o Late H.C.M. Giri Rao – Respondent
Writ Appeal No. 267 of 2017
Decided On : 19-02-2020
Advocate Appeared:
For the Appellant : Sri. Pradeep S. Sawkar.
For the Respondent: Sri. K.B. Narayana Swamy.
Headnote:
Industrial Disputes Act, 1947 - Section 33C(2) - Removed from service – Employment and service - Whether earned leave is part of consequential benefits or not - Whether earned leave is part of consequential benefits or not - Whether person was willing to work and was illegally and unlawfully not allowed to do so - Whether reinstated employee in railways is entitled to running allowance held at Paragraph - Whether person so willing to work would be entitled to said benefits in normal course of his employment without being required to work under special conditions entitling him to those allowances - Brief facts of case are that respondent herein was removed from service by appellant - A dispute was raised and it was held that his removal is illegal and void-ab-initio - As a consequence appellant was directed to reinstate respondent into service with full back wages and consequential benefits - Same was confirmed by this Hon’ble Court in Writ Petition – However back wages were reduced to only on ground that there would be excessive financial burden on appellant and not because any allegations were proved against respondent - Pursuant to orders referred above back wages and certain consequential benefits have been paid to respondent herein – However appellant did not permit the respondent to en cash days of earned leave - Respondent filed an application before Central Government Industrial Tribunal-cum-Lab our Court under Section 33C(2) of Industrial Disputes Act, 1947 - Tribunal held that respondent is not entitled to encashment of days of earned leave – Hence respondent herein filed instant Writ Petition – Held, Proposition of law that has been laid down by Hon’ble Supreme Court by referring to above cases can be summed up as that an employee if reinstated with consequential benefits would be entitled to all such benefits that he would have got if he had worked in normal course - But he is not entitled to those allowances which would accrue only if he worked in conditions entitling him to draw allowances - Both cases of Apex Court held above do not pertain to earned leave - Full Bench of High Court of Andhra Pradesh in case of Andhra Bank has specifically held that earned leave is not a consequential benefit and workmen has to render active service and thereby earn privilege leave to his credit m- It has observed that after going through various settlements of memoranda between workmen and employer court are in no doubt to conclude that privilege is intended for rest and recuperation and workman has to render active service and thereby earn privilege leave to his credit - A workmen out of service for any reason whatsoever is not entitled to privilege leave – Similarly this Court in writ petition has held that earned leave is not salary and petitioner is not entitled to same when he was not working - It has observed earned leave cannot have been earned as a matter of right but by actual working - In appeal Division Bench of this Court did not reverse any of propositions of law laid down by learned Single Judge but on facts found that appellant therein had indeed worked and was entitled to days of earned leave and granted same to him - It does not amount to directing employer to pay earned leave as part of consequential benefits - Earned leave is a privilege a workman would be entitled to only by actual working and it cannot be earned as a matter of right even if he did not work - Even if he were to be in employment he becomes entitled to it only if he works and earns it otherwise not - It is similar to night shift or traveling allowance which accrue only if person decides to work - If he does not work in that event he is not entitled to it – Hence earned leave un less relevant regulations expressly specifies otherwise cannot be considered as part of consequential benefits - Writ appeal is hereby allowed
JUDGMENT :
M.I. ARUN, J.
1. Aggrieved by the order dated 03.11.2016 passed by the learned Single Judge in writ petition No. 12961 of 2015 in allowing the writ petition and setting aside the impugned order, the respondent therein has filed this appeal.
2. The brief facts of the case are that the respondent herein was removed from service by the appellant. A dispute was raised and it was held that his removal is illegal and void-ab-initio. As a consequence, the appellant was directed to reinstate the respondent into service with full back wages and consequential benefits. The same was confirmed by this Hon’ble Court in Writ Petition No. 11437 of 2007 and writ appeal No. 1897 of 2011. However, the back wages were reduced to 60% only on the ground that there would be excessive financial burden on the appellant and not because any allegations were proved against the respondent.
3. Pursuant to the orders referred above, the back wages and certain consequential benefits have been paid to the respondent herein. However, the appellant did not permit the respondent to encash 240 days of earned leave. Hence, the respondent filed an application before Central Government Industrial Tribunal-cum-Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947. The Tribunal held that the respondent is not entitled to encashment of 240 days of earned leave. Hence, the respondent herein filed the instant Writ Petition No. 12961 of 2015. The learned Single Judge found that the petitioner was entitled to 60% of backwages along with all consequential benefits. The employee was found not guilty of any of the charges alleged against him. Thus, the learned Single Judge concluded that the impugned order passed by the Tribunal is perverse and illegal and consequently allowed the writ petition and held that the respondent herein is entitled to encashment of earned leave. However, the learned Single Judge did not examine whether earned leave is part of the consequential benefits or not. Aggrieved by the said order, the respondent therein is in appeal.
4. The only issue which arises for consideration in this case is whether earned leave is part of the consequential benefits or not.
5. To prove their case, the learned counsel for the appellant has relied upon the decision of the Apex Court in Dilbagh Rai Jerry vs. Union of India and Others, AIR 1974 SC 130, the decision of the Full Bench of the High Court of Andhra Pradesh in Andhra Bank and Another vs. P. Balakrishna (dead) by LRs. and Others, 2005 (3) LLJ 891 and the decision of this Court in K.R. Tyagi vs. National Textile Corporation and Another in Writ Petition No. 735 of 1989.
6. The learned counsel for the respondent has relied upon decision of the Hon’ble Supreme Court in Commissioner, Karnataka Housing Board vs. C. Muddaiah, (2007) 7 SCC 689, the decision of the High Court of Allahabad in H.N. Jain vs. National Textile Corporation Ltd. 2004 (2) Laws (All) 77 and the decision of this Court in Writ Appeal No. 9185 of 1996 between K.R. Tyagi vs. National Textile Corporation and Another.
7. In the case of Dilbagh Rai Jerry vs. Union of India and Others, AIR 1974 SC 130, the Apex Court while examining whether reinstated employee in the railways is entitled to the running allowance held at Paragraph 23 as follows:-
“23...............The crucial words, which have been underlined, show that such Running Allowance is counted towards ‘average pay’ in those cases only where the leave does not exceed one month. It cannot, therefore, be said that Running Allowance was due to the appellant as part of his wages for the entire period of his inactive service. Travelling allowance or running allowance is eligible if the officer has traveled or run, not otherwise. We therefore negative this contention.”
8. In the case of Commissioner, Karnataka Housing Board vs. C. Muddaiah, (2007) 7 SCC 689, the Apex Court while considering the entitlement of a dismissed employee who was reinstated with consequential benefits held at
