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IN THE HIGH COURT OF MADHYA PRADESH
Maninder S. Bhatti, J.
Mohanlal Gupta v. Madhyanchal Gramin Bank & Another
Writ Petition No. 9930 of 2017 (Jabalpur);
Decided on 17.11.2022
(1) Civil Services -- bank service -- Regs. 61 and 67 -- privilege leave and lapse of leave -- right to leave is statutory right, made available to employee on strength of statutory provisions -- benefit of privilege leave is based on notional situation, as if employee on that particular day of leave, has performed his duty -- such privilege leave, which employee has earned, becomes his property -- deprivation from such property in absence of statutory rule not permitted. (1983) 1 SCC 305 followed. (1971) 2 SCC 330 referred to. [Paras 11, 12 & 16
(2) Civil Services -- terminal dues -- benefits like pension and leave encashment are earned by employee -- they become property of employee -- if employee is deprived of such property, there has to be specific provision in statutory rules governing the field. (2013) 12 SCC 210 followed. [Para 18
(3) Civil Services -- bank service -- Regs. 61 and 67 -- leave encashment -- employee has right for leave encashment -- becomes his property upon earning same in terms of statutory provisions -- such right can only be curtailed by another statutory provision empowering employer to forfeit or withhold it. (2013) 12 SCC 210 followed. [Para 20
(4) Civil Services -- bank service -- Reg. 67 -- leave encashment -- Reg. 67 does not specifically exclude employee from availing benefit of leave encashment if he has been removed from service -- under garb of third proviso to Reg. 67, employee cannot be deprived of leave encashment. Ashok Writ Petition No. 1347 of 2016 decided on 17.2.2017 (Mum.) affirmed in Appeal (Civil) No. 19888 of 2017, Writ Appeal No. 240 of 2019 and Writ Petition No. 18249 of 2018 relied on. Writ Petition No. 16345 of 2014 decided on 18.7.2019 discussed. [Para 27
(5) Civil Services -- bank service -- Regs. 67 and 72 -- interpretation of Reg. 67 -- petitioner removed from service after disciplinary inquiry -- compensated/indemnified respondent/bank -- amount of gratuity released -- leave encashment as well as gratuity is property of petitioner -- restricted interpretation of Reg. 67 would not only be in direct conflict with Art. 300A of Constitution, but will also leave scope with employer to pass order in whimsical as well as capricious manner -- respondent/Bank cannot take recourse to discrimination in cases of gratuity as well as leave encashment -- petitioner could not have been deprived of benefit of leave encashment -- respondents directed to forthwith release amount of earned leave encashment along with interest @ 6% p.a. (2003) 5 SCC 134 and 2003 AIR SCW 2445 followed. (2005) 10 SCC 437 distinguished. [Paras 29, 33 & 34
¼1½ flfoy lsok && cSad lsok && fofu- 61 rFkk 67 && fo'ks"kkfèkdkj NqV~Vh rFkk NqV~Vh O;ixr g¨uk && NqÍh dk vfèkdkj dkuwuh vfèkdkj gS t¨ dkuwuh micaèk¨a d¢ cy ij deZpkjh d¨ miyCèk djk;k tkrk gSA fo'ks"kkfèkdkj NqÍh dk Qk;nk vfÒçk;kRed ifjfLFkfr ij vkèkkfjr gS] tSls ml NqÍh d¢ fof'k"V fnu deZpkjh us vius drZO; dk ikyu fd;k g¨ && ,slh fo'ks"kkfèkdkj NqÍh] ftls deZpkjh us mikftZr fd;k gS] mldh laifÙk g¨ tkrh gS && dkuwuh fu;e d¢ vÒko esa ,slh laifÙk ls oapu vuqKkr ugÈA ¼1983½ 1 ,l lh lh 305 vuqlfjrA ¼1971½ 2 ,l lh lh 330 fufnZ"VA ¼iSjk 11] 12 ,oa 16
¼2½ flfoy lsok && lsokar ns;d && isU'ku rFkk NqÍh udnhdj.k tSls Qk;ns deZpkjh }kjk vftZr fd, tkrs gSa && og deZpkjh dh laifÙk g¨ tkrs gSa && deZpkjh d¨ ,slh laifÙk ls oafpr fd;k tkrk gS r¨ bl fo"k; d¨ fofu;fer djus oky dkuwuh fu;e¨a esa fofufnZ"V micaèk g¨uk vko';d gSA ¼2013½ 12 ,l lh lh 210 vuqlfjrA ¼iSjk 18
¼3½ flfoy lsok && cSad lsok && fofu- 61 rFkk 67 && NqÍh udnhdj.k && deZpkjh d¨ NqÍh udnhdj.k dk vfèkdkj gS && dkuwuh micaèk¨a d¢ fucaèkukuqlkj mikftZr djus ij og NqÍh mldh laifÙk g¨ tkrh gS && ,slk vfèkdkj fu;¨tu d¨ mls leiâr djus ;k j¨dus d¢ fy, l{ke cukus okys fdlh vU; dkuwuh micaèk }kjk gh de fd;k tk ldrk gSA ¼2013½ 12 ,l lh lh 210 vuqlfjrA ¼iSjk 20
¼4½ flfoy lsok && cSad lsok && fofu- 67 && NqÍh udnhdj.k && ;fn deZpkjh d¨ lsok ls gVk;k tkrk gS r¨ fofu- 67 esa mls NqÍh udnhdj.k dk Qk;nk çkIr djus ls fofufnZ"Vr% vioftZr ugÈ fd;k x;k gS && fofu- 67 d¢ r`rh; ijarqd dh v¨V esa deZpkjh d¨ NqÍh udnhdj.k ls oafpr ugÈ fd;k tk ldrkA vihy ¼flfoy½ Ø- 19888 lu~ 2017 esa vfÒiq"V fjV ;kfpdk Ø- 1347 lu~ 2016 fu.kÊr fnukad 17-2-2017 ¼eqacý] fjV viyh Ø- 240 lu~ 2019 rFkk fjV ;kfpdk Ø- 18249 lu~ 2018 voyafcrA fjV ;kfpdk Ø- 16345 lu~ 2014 fu.kÊr fnukad 18-7-2019 foosfprA ¼iSjk 20
¼5½ flfoy lsok && cSad lsok && fofu- 67 rFkk 72 && fofu- 67 dk fuoZpu && ;kph vuq'kklfud tk¡p d¢ mijkar lsok ls gVk;k x;k && çR;FkÊ@cSad d¨ çfrdj fn;k@{kfriwfrZ nh && mls minku dh jde lanÙk dh xà && NqÍh udnhdj.k d¢ lkFk gh minku Òh ;kph dh laifÙk gS && fofu- 67 dk ladh.kZ fuoZpu lafoèkku d¢ vuq- 300d d¢ çR;{kr% çfrdwy gh ugÈ g¨xk] vfirq mlls fu;¨td d¨ eue©th d¢ lkFk gh LosPNkpkjh jhfr esa vkns'k ikfjr djus dh xqatkb'k Òh jgsxh && çR;FkÊ@cSad minku d¢ lkFk gh NqÍh udnhdj.k d¢ ekey¨a esa foÒsn ugÈ dj ldrk && ;kph NqÍh udnhdj.k d¢ Qk;ns ls oafpr ugÈ fd;k tk ldrk Fkk && çR;FkÊx.k d¨ vftZr NqÍh udnhdj.k dh jde d¢ lkFk 6 izfr'kr çfro"kZ dh nj ls C;kt vfoyac lanÙk djus dk funs'kA ¼2003½ 5 ,l lh lh 134 rFkk 2003 , vkb vkj ,l lh MCY;w 2445 vuqlfjrA ¼2005½ 10 ,l lh lh 437 çÒsfnrA ¼¼iSjk 29] 33 ,oa 34
ORDER
1. The petitioner has filed this petition while praying for following reliefs :--
“7.(i) The Hon’ble Court may be pleased to call the entire record of the petitioner pertaining to the earned leave encashment.
(ii) The Hon’ble Court may be pleased to set aside the impugned order dated 23.5.2015.
(iii) The Hon’ble Court may direct respondents to release the benefit of earned leave encashment to the petitioner within a period of 60 days and with the interest of 12% per annum from the date of superannuation.
(iv) Any other relief this Hon’ble Court deems fit and proper under given facts and circumstances of the case may also be granted in favour of the petitioner along with cost of litigation throughout.”
2. The contents as elaborated in the petition reveal that the petitioner, who was working with the respondent/Bank, as Officer Category-II, after disciplinary inquiry, vide order dated 22.4.2014, was removed from service and the said order of removal was passed just before the scheduled date of superannuation i.e. 30.6.2014.After the said order, the petitioner made representation to the respondents to release the benefits, which are admissible to the petitioner upon superannuation.
3. The respondents though, released the gratuity to the petitioner but, did not release the earned leave encashment and the same was withheld. The petitioner then submitted representation dated 3.7.2014 but, the said representation was declined vide letter dated 10.7.2014(Annexure P/3). Thereafter, the petitioner submitted another representation dated 15.7.2014 (Annexure P/4), the same was again declined vide impugned order dated 23.3.2015. Thereafter, an appeal was also preferred by the petitioner vide memo contained in Annexure-P/6 but, the petitioner was not extended the benefit of encashment of privileged leave. Therefore, seeking quashment of order dated 23.3.2015, this petition was filed by the petitioner with a further relief to direct the respondents to confer the benefit of earned leave encashment with interest.
4. The counsel for the petitioner contends that the service conditions of employee of the petitioner are governed by the Regulations which are contained in Annexure-P/8. It is the submission of the counsel for the petitioner that Regulation -61 of the Regulations provides for privilege leave. Regulation-67 of Regulations, provides for lapse of leave. In terms of Regulation-67 of Regulations, when an employee of the Bank ceases to be in service, he is entitled to be paid all allowances and pay for the period of privilege leave at his credit and therefore, submits that there is no clause in Regulation-67, which deprives the petitioner from availing the benefit of leave encashment. It is submitted by the counsel for the petitioner that the petitioner had number of leaves to his credit and therefore, despite the order of removal, which is contained in Annexure- P/1 dated 22.4.2014, the petitioner could not have been deprived of the benefit of leave encashment. It is also contended by the counsel for the petitioner that the amount of gratuity has been released to the petitioner and therefore, the respondents could not have withheld the leave encashment under the garb of Regulation-67 of the Regulations, which are contained in Annexure-P/8.
5. The counsel while placing reliance on the decision of the apex Court in the case of State of Jharkhand and Ors. v. Jitendra Kumar Srivastava and Ors. [(2013) 12 SCC 210] submits that the present petition deserves to be allowed inasmuch as, the apex Court in the case of Jitendra Kumar Srivastava (supra), has held that terminal dues like pension, gratuity or leave encashment cannot be withheld in absence of any statutory provisions to do so. It is the further contention of the counsel that the pari materia provisions of Regulations-61 and 67 have been incorporated in Maharashtra Gramin Bank (Officers and Employees) Service Regulations,2010 and the High Court of Mumbai(Aurangabad Bench) in WP No. 13
An employee removed from service retains the right to leave encashment, as such benefits constitute property under Article 300A, not forfeited by removal from service.
The main legal point established in the judgment is the entitlement of an employee to leave encashment benefits upon compulsory retirement, as per Regulation 38 and judicial interpretations, and the ....
Leave encashment constitutes salary and must be paid upon resignation if accepted unconditionally, affirming the principles of fair employment rights.
The judgment establishes that leave encashment entitlement under Regulation 67 must be read in conjunction with Regulation 61(4) and applies to cases of death, retirement, or termination owing to ret....
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