Patna High Court
Pinak Pani Roy Choudhary vs The Vice-Chancellor, Bihar University ... on 24 June, 1990
Equivalent citations: 1990(38)BLJR1111
JUDGMENT S.B. Sanyal, J.
1. In this writ petition., the petitioner seeks for issuance of a writ of mandamus for payment of full leave salary for accumulated leave for a period of 1229 days, whereas he was allowed leave salary for only 120 days by the Vice Chancellor excluding dearness allowance.
2. According to the petitioner's case, he was an employee of the Patna University at the time his services were taken over under Section 53 of the University of Bihar Act, 1951. The petitioner worked for 28 years and was to retire on 3-10-1969, but under the approval of the Syndicate, his service was extended from time to time till he retired on 23-10-1973. During all this period the petitioner had been craving for grant of leave admissible to him, but he was not granted leave, including leave preparatory to retirement. According to the petitioner his entire leave due is for 1229 days.
3. The leave salary due to the petition was placed before the Finance Committee of the university, as was done in the case of Principal of C. M. College, Darbhanga, Sri Quasim Hussain, as per Government Order No. F-1701 (70) 5619 dated 16-3-1970. The Finance Committee, referred to Article 5(3) of Chapter XV-A of the Bihar University Statutes, which envisages, that leave admissible shall lapse on the date on which a University servant must compulsorily retire, provided he has been denied leave in whole or in part, on account of exigencies of University service, in that event, leave due will extend to a date beyond the date of compulsory retirement. But for this, there roust be evidence to show that the leave was duly applied for. The Finance Committee also referred to the letter dated 16th of May 1970 of the State Government in the Department of Finance, which directed all Departmental Heads of Government that the leave refused to an employee should be granted even after his retirement. The Finance Committee thereafter referred to various applications of the petitioner for grant of leave which were consistently refused for exigencies of duty and cited the instance of Sri Quasim Hussain, who was allowed 112 days earned leave on full average pay and 300 days medical leave on full pay. The Finance Committee computed the leave due to the petitioner as follows:
(i) Privilege leave on full pay 550 days
(ii) Medical leave on full pay 916 days
(iii) Medical leave on half pay 463 days
Total 1229 days
and passed the resolution asking the Syndicate to consider the prayer of the Finance Officer (the petitioner), The report of the Finance Committee has been marked as Annexure "2". The recommendation of the Finance Committee was placed before the Syndicate on the 19th December, 1971, and under item No. 28 of the Agenda held:
Considered the approval of the proceedings of the meeting of the Finance Committee, held on the 29th October, 1971. and resolved that "That they be approved, except item No. 10.
4. The University has filed a counter-affidavit. It tried to justify the leave salary unveiled for a maximum period of 120 days, as allowed by the Vice-chancellor, as per Annexure 4, on the ground that it was so admissible under Articles 21 and 25 of the Statutes. It also contended that the Finance Committee directed the disposal of the prayer of the petitioner in accordance with the necessary rules and Government Rules. The Syndicate did not give any reasons while approving the recommendation of the Finance Committee. It has been submitted that the case of Sri Quasiam Hussain is not the same or similar to that of the petitioner.
5. Learned counsel appearing on behalf of the petitioner submitted that even though it is true that there is no specific rule for accumulated leave under the Statutes, but the Rules of the Syndicate as applicable to the employees transferred under Section 52(2) of the Patna University Act, 1951, provides in Article 29 to the effect that if there is no specific rule as to same thing, the Syndicate is authorised to deal with the matter in accordance with the Bihar and Orissa Service Code or in such other manner as it deems fit It is, therefore, contended that the Finance Committee having recommended consideration of rules and regulations as also the Government directions in the Department of Finance and the Syndicate having approved it the University was bound to make payment. It was also submitted that the recommendation of the Finance Committee has to be read as a whole, and not as is soughs to be done by the University counsel. It was lastly contended that, there is no justification however for granting accumulated leave salary only for 120 days, as has been done by the Vice-Chancellor, vide Annexure-4,
6. The petitioner is the ex-employee of the Patna University, whoso service stood transferred to the Bihar University, and his condition of service is, therefore governed by Annexure I, which is the Rules of. the Syndicate. Rules 21, 23, 25 and 29 which are only relevant rules in this connection are extracted below:
21. The maximum amount of leave on average pay which may be granted in each separate period of leave is four months (at one time), and in all, one eleventh of the period spent on duty:
Provided that in the case of-a University servant who takes leave on medical certificate., the maximum amount of leave on average pay which may be granted to him will be eight mouths at any one time instead of four, and, in. all, one eleventh of the period spent on duty plus one year.
23. The maximum period of continuous absence from duty on leave granted otherwise than on medical certificate is 28 months.
25. Subject to the conditions in Rules 20 to 24 and Rule 26, a servant of the University on leave shall, during leave, draw leave salary as follows:
(a) if the leave is due, leave salary equal to average pay or to half average pay ; and
(b) if the leave is not due, leave salary equal to half average pay.
Note.-When a servant of the University takes leave, his pay at the time of taking leave may by treated as his average pay for the purpose of this rule, if:
(i) his pay is toss than 300, or
(ii) (ii) the leave taken does not exceed one month.
29. The Syndicate may decide any case not corning within the purview of the above rules in accordance with the Bihar and Orissa Service Code or in such other manner as it deems fit."
None of these rules deal with accumulation of leave salary, but deal with a maximum period of continuous absence from duty only, other than medical certificate, is 28 months, and when leave is so granted, he is entitled to leave salary on average pay or half average pay Rule 29, however, confers jurisdiction upon the Syndicate to decide which are not covered by the Rules, as it deems fit. From the proviso and Explanation to Article 5(2) of Chapter XV-A of the Bihar University Statutes, it appears that in a case where a person has not been allowed leave even on his asking, due to exigencies of University service, which he was entitled to, he may be granted leave even though it extends to a date beyond the date of compulsory retirement. The Government order dated 16th of May, 1970, referred to in the recommendations of the Finance Committee, also envisages that the leave refused to an employee should be granted even after his retirement. The Finance Committee founded its recommendations on the basis of the Government direction as also on the basis of the Statutes. The argument of the learned Counsel for the University that the Syndicate has approved the recommendations without giving any reason and, therefore, cannot be acted upon, is not sound. The report of the Finance Committee is reasoned exhaustively. The Syndicates acceptance thereof will amount to acceptance of the reasons by reference to the said report. One thing appears to be very clear that the transferred employees are entitled to accumulated leave encashment benefits inasmuch as the same was granted to Shri Quasim Hussain, as also has been allowed to the petitioner. The dispute is confined only to the number of days to which one is entitled to the said benefit and what should be the salary therefore, i.e. inclusive of dearness allowance. The Vice-Chancellor has refused dearness allowance to the petitioner while ordering payment of accumulated leave salary.
7. In Rule 5 of the Rules of the Syndicates, as applicable to transferred employees, defines "Leave salary" as '"monthly amount paid by the University to a University servant who is on leave. The word ''pay" has been defined in Rule 1 of the said Rules to mean what is paid to him at the end of the month sanctioned for the post, including acting and personal allowance. "Average pay" has also been defined in Rule 3 of the said Rules which means" the average monthly pay earned during the twelve complete months immediately proceeding the month in which the event occurs", that is, the monthly pay earned during the twelve complete month immediately proceeding the month in which the leave is taken. Leave salary, therefore, would be the salary ordinarily payable to the employee which he had been receiving before going on leave. Leave salary, therefore, shall be inclusive of dearness allowance. Merely because leave was not taken or was not allowed will not change the situation,
8. From the combined reading of the Rules of the Syndicate, Article 5(3) of Chapter XV-A of the Bihar University Statutes as also the Government order dated the 16th May 1979, I am constrained to hold that the leave is allowed to lapse only on the retirement of the employee which will conversely mean that it is allowed to be accumulated and will lapse on retirement. This provision of lapse of leave, to which a person is entitled to, has some exceptions which have been indicated in the proviso and Explanation to the said Article. The grant of four months leave salary, even after retirement of the petitioner, by the Vice Chancellor, with which the petitioner is aggrieved also suggests that one is entitled to leave encashment benefit even after his retirement. I find no justification why in absence of any ceiling fixed on the accumulation of leave, the Vice-Chancellor sanctioned leave beyond superannuation to the petitioner for 120 days only. I, however, do not find full justification for payment of leave salary for a period of 1229 days, which is beyond 28 months. Under Rule 23 of the Rules of the Syndicate, the maximum period of continuous absence from duty on leave granted otherwise than on medical certificate is 28 months, i.e., 450 days. This appears to be the ceiling on a person's right to accumulate leave, and not beyond this. Rule 21 speaks about four months leave at one time "in each separate period of leave". One eleventh of the period spent on duty in the case of the petitioner stated to work out at 929 days, since he spent 10,220 days on duty.
9. I, therefore, hold that the petitioner is entitled to 18 months leave salary on average pay to be calculated on the basis of Explanation to Rule 3 of the Syndicate under the head "Leave Rules". The average pay will be inclusive of dearness allowance, besides personal pay if any Annexure 4 is quashed and any payment made to the petitioner pursuant to Annexure 4 will be adjusted in computing the dues on leave account of the petitioner.
10. In the result, this writ petition is allowed with costs with the direction contained in paragraph 9, The petitioner shall be entitled to 9 per cent per annum simple interest on and from 19th December, 1971, when the Syndicate approved the resolution of the Finance Committee till the entire does are cleared. Hearing fee is assessed at Rs. 200.
U.P. Sinha, J.
11. I agree.