Point of Law: Leave encashment - Beyond the period of superannuation no benefit of leave is available to a government employee.

ORDER :

Aniruddha Roy, J.

1. The present writ petition has been filed by the State employer challenging the order dated April 3, 2019 (for short, the impugned order) passed by the West Bengal Administrative Tribunal, Kolkata (for short, the Tribunal) in OA No. 1366 of 2014 (Amalendu Bikas Mahapatra vs. The State of West Bengal & Ors) [for short, the Original Application], whereunder, direction was made for revision of the leave encashment of the first respondent in the manner stated therein.

2. The first respondent was employed as Assistant Evaluation Officer under the Administrative Control of Additional Director of Agriculture (Evaluation), Directorate of Agriculture, West Bengal. He superannuated on August 31, 2007. The first respondent had received all his retirement benefits as well as pension as on the date of his superannuation. Subsequently, the Revision of Pay and Allowances Rules, 2009 (for short, ROPA 2009) came into force w.e.f. January 1, 2006. According to the first respondent he had received the revised pension payment order on May 3, 2011 for difference of gratuity and Commuted Value of Pension. The grievance of the first respondent was that the leave encashment for unutilized 300 days earned leave as provided under Rule 168 (A) of the West Bengal Service Rules, Part I, 1971 (for short, the 1971 Rules) was not revised in terms of ROPA 2009. Ventilating such grievance the first respondent filed a previous Original Application being OA No. 1377 of 2011 before the Tribunal, claiming the difference of leave encashment of 300 days of earned leave on the basis of ROPA 2009. Vide order dated December 11, 2011 the said previous Original Application was disposed of directing the Finance Secretary to treat the same as his representation and dispose of the same after giving a personal hearing to him.

3. On February 8, 2013 the Finance Secretary passed his reasoned order rejecting the claim of the first respondent. On the basis of the said reasoned order a contempt application was filed by the first respondent before the Tribunal in connection with the said previous Original Application. The same was dropped vide order dated February 27, 2013.

4. Being aggrieved by the said order dated February 27, 2013 the petitioner filed a writ petition before this Court being WPST 413 of 2013. The same was disposed of by this Court vide order dated November 25, 2013 directing the petitioner to take appropriate decision with regard to the claim of first respondent for sanctioning the leave encashment benefit after providing an opportunity of hearing to him. By an order dated April 23, 2014 the petitioner rejected the claim of the first respondent holding, inter alia, that leave encashment benefit under the policy of the State employer is not a part of the retiral benefits.

5. Being aggrieved by the said decision of the petitioner dated April 23, 2014 the said Original Application was moved by the first respondent which was disposed of by the impugned order.

6. Mr. Joytosh Majumdar, the learned Government Pleader, appearing with Mr. Pinaki Dhole and Ms. Kakuli Samajpati, Advocates representing the State employer/writ petitioner, at the outset submitted that, the benefit of right to receive cash equivalent to leave salary, for the period of unutilized leave earned accruing as on the date of retirement is a condition of service. The entitlement of the employee as to the same are provided and dealt with under Rules 168 and 168A of the 1971 Rules. Referring to the said Rule he submitted that, the leave salary of a State employee on account of unutilized leave is not a retiral benefit. The Tribunal while passing the impugned order had failed to appreciate the aforesaid submission, misconstrued the relevant Service Rules and passed the impugned order. He submitted that, ROPA 2009 was given effect to from January 1, 2006 notionally and the actual effect was granted from April 1, 2008. All the serving employees were granted the actual benefit from Apri