Bombay High Court
Shri. Shrikrishna Madhao Khare vs (Ntpc) Ltd. Through Its Chairman And ... on 10 January, 2017
Author: V.M.Deshpande
Bench: Vasanti A Naik, V.M.Deshpande
1001WP2610.15-Judgment 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2610 OF 2015
PETITIONER :- Shri. Shrikrishna Madhao Khare, Age about-
62 years, Occupation : Retired Govt. Servant
(NTPC) R/o Flat No.205, Vinayak Apartment
Plot No.6, Dindayal Nagar, Nagpur.
...VERSUS...
RESPONDENTS :- 1. (NTPC) Limited, Through its Chairman and
ig Managing Director, Core-7, Scope Complex,
Lodhi Road, New Delhi-110003.
2. Government of India, Ministry of Power,
through its Secretary (Power), Shram Shakti
Bhawan, New Delhi - 110001.
3. Government of India, Ministry of Heavy
Industries and Public Enterprises,
Department of Public Enterprises through its
Secretary (Public Enterprises), Public
Enterprises Bhawan, Block No.14, CGO
Complex, Lodhi Road, New Delhi 110003.
4. NTPC Limmited (A Govt. of India
Enterprise), Mouda Super Thermal Power
Project, Mouda-Ramtek Road, P.O.Mouda,
Distt. Nagpur - 441104 (Maharashtra).
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Mr.Anil Mardikar, Sr.Counsel with Mr.Sumit Joshi,
counsel for the petitioner.
Mr.Ramesh Darda, counsel for the respondent Nos.1 and 4.
Mrs. Anjali Joshi, counsel for the respondent Nos.2 and 3.
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CORAM : SMT. VASANTI A NAIK &
V.M.DESHPANDE, JJ.
DATED : 10.01.2017 ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:54 ::: 1001WP2610.15-Judgment 2/7 O R A L J U D G M E N T (Per Smt. Vasanti A Naik, J.) Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.
2. By this writ petition, the petitioner challenges the communication of the respondent No.1-N.T.P.C.Ltd., dated 28/10/2013 calling upon the petitioner to repay a sum of Rs.6,13,295/- that was paid to the petitioner at the time of his retirement towards leave encashment and half pay leave.
3. The petitioner retired as a General Manager of the National Thermal Power Corporation Limited (hereinafter referred to as "NTPC" for the sake of brevity) on 31/12/2012. At the time of his retirement, as per the NTPC Leave Rules, 1978, the petitioner was entitled to earned leave to the extent of 30 days per year with a ceiling of 300 days and half pay leave at 20 days per year without any ceiling.
In terms of the Rules, specially Rule 7.1 which deals with the entitlement of leave in respect of half pay leave and leave encashment, the petitioner was paid a sum of Rs.6,13,295/-. It appears that immediately thereafter, by the impugned communication dated 28/10/2013, the NTPC directed the petitioner to repay the sum of ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:54 ::: 1001WP2610.15-Judgment 3/7 Rs.6,13,295/- to the respondents in view of the audit objection and the circular dated 29/04/2013, the petitioner was entitled to earned leave and half pay leave to the extent of only 300 days in combination. The petitioner has impugned the said communication in the instant petition.
4. Shri Mardikar, the learned senior counsel for the petitioner, submitted that at the time of the retirement of the petitioner, i.e. on 31/12/2012, the NTPC Leave Rules of the year 1978 were in force. It is stated that as per Rule 7.1 of the Rules, an employee was entitled to leave in respect of casual leave, earned leave, half pay leave and sick leave as per Annexure-I. It is submitted that as per Annexure-I, an employee was entitled to earned leave to the extent of 30 days per year with a ceiling of 300 days and half pay leave to the extent of 20 days per year without any ceiling. It is stated that in view of the said provision, the petitioner was rightly paid earned leave for 300 days and half pay leave as per his entitlement. It is submitted that in view of the circular and the so called amendment to the Rules which came into effect on 29/04/2013, the amount paid to the petitioner in excess of 300 days was sought to be recovered by the impugned communication.
It is submitted that since the petitioner retired before the circular was brought into force the said circular would not apply to the case of the petitioner. It is submitted that the Rules cannot be amended by a ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:54 ::: 1001WP2610.15-Judgment 4/7 circular. It is stated that in almost similar set of facts while allowing Civil Appeal No.8054 of 2011 in the case of Secretary, NTPC Pension Trust v. Mohd. Yunus and others, the Hon'ble Supreme Court held that the retiral benefits of the employee therein stood crystallized on the date of his retirement and any rules and guidelines notified thereafter could not have been made applicable to the said employee. It is submitted that the order of the Hon'ble Supreme Court dated 09/12/2015 in the aforesaid civil appeal would apply with full force to the case of the petitioner. It is submitted that the action on the part of the respondent-NTPC in seeking the recovery of the amount of Rs.6,13,295/- is arbitrary and illegal.
5. Shri Darda, the learned counsel for the respondent-NTPC, supported the action of the NTPC. It is submitted that since at the relevant time, the NTPC Leave Rules, 1978 were in force, the respondent-NTPC paid the leave encashment benefits to the petitioner as per Annexure-I. It is stated that however there was an audit objection in respect of the said payment and, therefore, the NTPC sought clarification from the Department of Central Enterprise. It is submitted that as per the said clarification, the petitioner was not entitled to leave encashment benefits for a period of more than 300 days. It is submitted that in the aforesaid background, the respondent-NTPC had sought the ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:54 ::: 1001WP2610.15-Judgment 5/7 recovery by relying on the circular and the amended rules which were brought into effect on 01/12/2012. The learned counsel sought for the dismissal of the writ petition.
6. It is clear on a consideration of the circumstances of the case and the NTPC Leave Rules that were then in force that the petitioner was entitled to leave encashment with the ceiling of 300 days and half pay leave without any ceiling. The petitioner received the leave encashment and half pay leave benefits as per Annexure-I that is appended to the NTPC Leave Rules, 1978. Rule 7.1 of the Rules speaks about the entitlement of an employee to leave in respect of casual leave, earned leave, half pay leave and sick leave. Rule 7.1 further stipulates that the employee would be entitled to the leave as provided in Annexure-I. Annexure-I to the Rules clearly provides that earned leave benefit could be availed for 30 days per year with a ceiling of 300 days and half pay leave benefit could be availed for 20 days per year without any ceiling. The petitioner stood retired after attaining the age of superannuation, on 31/12/2012. The circular providing for a ceiling of 300 days towards leave encashment for all types of leave was issued on 27/02/2013. According to the respondents, the Rules of the year 1978 were amended on 29/04/2013 and by the amended Rules, an employee was entitled to seek benefits of leave encashment only to the extent of ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:54 ::: 1001WP2610.15-Judgment 6/7 300 days for all types of leave. The circular as well as the amendment, however, came into effect on 27/02/2013 and 29/04/2013 respectively. We do not find anything either in the circular or in the amendment that shows that the amended rules were brought into effect on 01/12/2012. Even if the amended rules would have been brought into effect on 01/12/2012, we wonder whether such a retrospective amendment to the rules could have been upheld. In any case, as there is nothing placed on record to point out that the amended rules were to operate retrospectively with effect from 01/12/2012, it would not be necessary for us to delve on the said issue.
7. A similar question came up before the Hon'ble Supreme Court in Civil Appeal No.8054 of 2011 where the respondent- NTPC was one of the parties. In that case also, the NTPC, by relying on the rules/guidelines, that were notified after the retirement of the employee concerned, were applied to the said employee and certain retiral benefits were not paid to him. The Hon'ble Supreme Court was satisfied that the retiral benefits of the employee in the said case stood crystallized on the date of his retirement and any rules or guidelines notified thereafter including the guidelines that came into force thereafter could not have been made applicable to the employee concerned. As rightly submitted on behalf of the petitioner, the said ::: Uploaded on - 13/01/2017 ::: Downloaded on - 14/01/2017 00:46:54 ::: 1001WP2610.15-Judgment 7/7 order applies to the present case with full vigour. Merely because there was an audit objection, the respondent-NTPC could not have withdrawn the benefits, that were rightfully granted in favour of the petitioner on his retirement on 31/12/2012. The action on the part of the respondent-NTPC in asking the petitioner to repay the amount of Rs.6,13,295/- is clearly bad-in-law and is liable to be set aside.
8. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned communication is quashed and set aside. As the said amount is recovered from the pensionary benefits payable to the petitioner, we direct the respondent-NTPC to pay the said amount to the petitioner within three weeks. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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