Leave encashment can be withheld during pending departmental or judicial proceedings because the right to leave credit ceases upon dismissal or removal under Rule 8 of the Civil Services (Leave) Rules, and no provision exists for the grant of provisional leave encashment.

ORDER :

Vishal Dhagat, J.

Petitioner has filed this petition under Article 226 of Constitution of India challenging order dated 11/11/2021 contained in Annexure P-1. By said order prayer of petitioner for encashment of earned leave was rejected on ground that he was convicted under Sections 420, 120-B of the Indian Penal Code and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. Prayer for encashment of earned leave was rejected in aid with Rule 64 (1)(c) of M.P. Civil Services (Pension) Rules, 1976 on grounds that payment is to be made on conclusion of proceedings. Final retiral benefits are to be paid after adjustment of provisional pension gratuity paid under Rule 64 (1)(c) of M.P. Civil Services (Pension) Rules, 1976 on conclusion of proceedings. Proceedings include departmental enquiry or judicial proceedings.

2. Counsel appearing for petitioner submitted that respondents had committed an error in passing impugned order and same is not in consonance with law. There is no specific provision which aids withholding of leave encashment of petitioner. In Writ Appeal No.772/2019 (Sevaram Khandegar Vs. State of M.P. & Others) Division Bench of this Court vide order dated 04/02/2019 held that there is no provision, which disentitles petitioner during pendency of criminal case from encashing leave in his account. Writ Appeal filed was allowed and respondents were directed to release 50% of gratuity as directed by learned Single Judge as well as amount which is in account of petitioner under leave encashment head. In support of his contention counsel also placed reliance on orders passed by this Court in Writ Petition No.18341/2023 (Badelal Pathak Vs. State of M.P. & Others) decided on 05/09/2023 and also order dated 10/02/2023 passed in Writ Petition No.17844/2020 (Bhuvansingh Waskel Vs. State of M.P. & Others). In view of aforesaid, counsel for petitioner prays for quashing of impugned order and allowing Writ Petition.

3. Counsel appearing for respondents submitted that leave encashment was rejected placing reliance on Rule 64 (1)(c) of M.P. Civil Services (Pension) Rules, 1976, which authorises withholding of pensionary benefit during pendency of judicial proceedings. There is no illegality in the order. If petitioner is finally acquitted, shall be adjusted against final retiral benefits. In view of same, Writ Petition be dismissed.

4. Heard counsel for the parties.

5. Question before this Court is whether State Government is at liberty to withhold leave encashment if departmental proceeding or judicial proceeding against an employee is pending in aid of Section 64(1)(c) of Civil Services Pension Rules, 1976.

6. A Government servant under Rule 25(1)(a) of M.P. Civil Services (Leave) Rules, 1977 shall be entitled to 30 days earned leave in every calendar year. Every Government servant has a leave account, which is prepared in accordance with Rule 14 of aforesaid Rules. Leave of every Government servant is credited into leave account in two installments of 15 days each on first January and first July every year. As per Rule 25(1)(c) of M.P. Civil Services (Leave) Rules, 1977 maximum earned leave credited into account shall not exceed limit of 300 days. Maximum earned leave which can be granted to Government servant under Rule 25(2) of M.P. Civil Services (Leave) Rules, 1977 is 120 days. As per Rule 36 of M.P. Civil Services (Leave) Rules, 1977 Government servant who proceeds on earned leave is entitled to leave salary equivalent to the pay drawn immediately before proceeding on earned leave. Rule 36 of M.P. Civil Services (Leave) Rules, 1977 further lays down that on retirement or resignation of a Government servant, it is to be seen whether he has availed more leave then permissible to him and in such cases adjustment shall be made in respect of leave salary if leave is overdrawn. As per Rule 8 of M.P. Civil Services (Leave) Rules, 1977 any claim to leave to credit of a Government servant, who is dismissed or remo