Central Administrative Tribunal - Delhi
Rakesh Mohan Kotwal vs National Projects Construction ... on 22 May, 2026
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OA No.1893/2023
Item No. 26 (C-3)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.1893/2023
Reserved on 12.05.2026
Pronounced on 22.05.2026
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Rakesh Mohan Kotwal,
Ex- Joint General Manager (Civil), Group - A
Aged about 61 years, Emp. No. 3742, NPCC Ltd., B-436, Anand Nagar,
Sagartal Road, Bahorapur, Gwalior (M.P.) 474012.
.... Applicant
(By Advocate : Ms. Abha Sharma)
VERSUS
The Chairman & Managing Director, National Projects Construction
Corporation Ltd., Registered Office: Plot No. 30-31, Raja House, Nehru
Place, Delhi-110019.
.... RESPONDENTS
(By Advocate : Mr. Paritosh Budhiraja)
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OA No.1893/2023
Item No. 26 (C-3)
ORDER
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J) The present Original Application has been filed by the Applicant seeking the following relief(s):-
"(i) This Ld. Tribunal may kindly allow the present OA and direct the Respondent Corporation to release withheld the amount of Leave Encashment numbering 300 days to the Applicant forthwith;
(ii) Award interest @ 18% to the Applicant against the Respondent Corporation on the delayed payment of Leave Encashment of 300 days from 01.09.2019 till the date of payment;
(iii) pass such other further order or orders as may be deem fit and proper under the circumstances of the case."
2. Learned counsel for the applicant stated that the applicant was appointed as Assistant Executive Engineer (Civil) on 03.07.1990 at Nav-Kadirkamam Unit, Pondicherry under the respondent Corporation. He further stated that the applicant was promoted to the post of Executive Engineer (Civil)/Project Manager in the year 1995. Thereafter, the applicant was promoted to the post of Senior Executive Engineer (Civil) and was posted as Project Manager at GGDU Unit and Anicut Unit, Bilaspur (Chhattisgarh) from 2005 to 2011. Subsequently, the applicant was further promoted to the post of Deputy General Manager (Civil) and posted at Anicut Unit, Bilaspur (Chhattisgarh). It was further submitted that thereafter the applicant was transferred and posted at NER (IBBW) Zonal Office, Silchar (Assam) in August, 2011. Learned counsel further stated that the applicant was also promoted to the post of Joint General Manager (Engineering-Civil) in the year 2015 ARTI ARTI 2026.05.22 15:08:14 +05'30' 3 OA No.1893/2023 Item No. 26 (C-3) and retired from service on attaining the age of superannuation on 31.08.2019 from NER (IBBW) Zonal Office, Silchar (Assam).
3. Learned counsel for the applicant further stated that after retirement, the applicant submitted a representation/letter dated 11.03.2022 addressed to the Chairman-cum-Managing Director (C&MD) of the respondent Corporation requesting release of his retiral dues including leave encashment for 300 days of earned leave, which according to the applicant had been withheld by the respondent Corporation without any justification or authority of law after his retirement on 31.08.2019.
4. He further submitted that the applicant is entitled to leave encashment for 300 days of earned leave calculated on the basis of his last drawn salary comprising Basic Pay of Rs.1,07,990/- and Dearness Allowance of Rs.13,391/-, totaling Rs.1,21,381/-, along with interest @ 18% per annum w.e.f. 01.09.2019 till the date of actual payment.
5. Learned counsel further submitted that despite the aforesaid representation dated 11.03.2022, the respondent Corporation neither passed any order communicating reasons for withholding the retiral dues including leave encashment nor released the said amount. It was also submitted that the applicant thereafter sent a reminder through e-mail dated 20.04.2023 to the respondent Corporation, however, no action was taken. Being aggrieved by the inaction of the respondents, ARTI ARTI 2026.05.22 15:08:14 +05'30' 4 OA No.1893/2023 Item No. 26 (C-3) the applicant has approached this Tribunal by way of the present Original Application.
6. Learned counsel further clarified that the claim relating to gratuity has already been filed before the learned Controlling Authority, Delhi, which is the competent authority under the Payment of Gratuity Act, 1972 and, therefore, the said relief is not being agitated before this Tribunal in the present proceedings.
7. On issuance of notice, learned counsel for the respondent filed reply and stated that, while the CEINE ACAI 2019 A 0003 was registered under Section 120- B read with Section 420 IPC and Sections 7, 7-A & 8 of the PC (Amendment), 2018 against the Applicant for entering into a Criminal Conspiracy and illegal gratification for himself in the matter of processing and passing of bills pertaining to the contracts of civil construction work of Border Security Force awarded by the Respondent Corporation in favor of M/s Shree Gautam Construction Company Ltd.
Guwahati, Assam, and certain other private firms/companies. In pursuance of the same, the Applicant was arrested on 14.07.2019 itself and remanded in judicial custody, the Applicant was suspended vide order dated 17.07.2019. The said case is pending trial in the Court of Special Judge (PC Act) (CBI)-18, Rouse Avenue Courts Complex, New Delhi. For the above reasons, the retiral dues, i.e., Leave Encashment of the Applicant, have not been paid by the Respondent Corporation. It is further submitted that there is a clear provision under the NPCC (CC&A) Rules that on account of the pendency of the judicial proceedings, the retiral dues of an ARTI ARTI 2026.05.22 15:08:14 +05'30' 5 OA No.1893/2023 Item No. 26 (C-3) employee can be withheld subject to the outcome of the said judicial proceedings. It is respectfully submitted that despite being aware of the pendency of the said CBI case, the Applicant has malafidely approached this Hon'ble Tribunal.
8. Learned counsel for the applicant relied upon the decision passed by this Tribunal in OA No. 1066/2022 titled Ram Kumar Sharma Vs. The Chairman & Managing Director, National Projects Construction Corporation Ltd. decided on 15.10.2024 and submitted that the issue involved in the present OA is squarely covered by the said judgment, which reads as under:-
"By way of the present OA filed u/s 21 of the AT Act, 1985, the applicant has prayed for the following reliefs in Para 8 of the above OA: -
"(i) This Ld. Tribunal may kindly allow the present O.A and direct the Respondent Corporation to release withhold amount of leave encashment to the Applicant forthwith;
(ii) Award interest @ 18% to the Applicant against the Respondent Corporation on the delayed payment of leave encashment from 01.02.2021 till the date of payment.
(iii) pass order or other further such order or orders as may be deem fit and proper under the circumstances of this case."
2. The brief facts in the matter are that the applicant was appointed on 18.09.1990 and held several posts by way of promotion during the period from 18.09.1990 to 30.01.2021. The applicant superannuated on 31.01.2021. At the time of his superannuation, he was holding the post of Manager (Civil) in the North Western Zone, Gurugram. The applicant states that he superannuated without any blame/allegation or any charges/memo under the CC&A (Conduct) Rules, 2005 of the respondent Corporation. He states that on his retirement his gratuity and leave encashment was not paid to him and for that purpose he made his representation dated 18.09.2021 to the respondents. However, neither any reply was given nor the dues were released. He contends that leave encashment for 300 days of Earned is pending and in so far as the claim relating to gratuity is concerned, the matter has been adjudicated in the Court of Ld. Controlling Authority which is the Competent Authority under the Payment of Gratuity Act, 1972. Hence, the same is not agitated before this Tribunal. He submits that denial of legitimate and bonafide earned legal right of leave encashment tantamounts to cause harassment and victimization without any fault committed and the said dues have not been settled by the respondents despite representation dated 18.09.2021 followed by representations/reminders dated 23.03.2021, 26.06.2021, 29.07.2021, 2.10.2021, 1.12.2021 and 21.01.2022. The respondents neither replied nor settled the claim of the applicant. The applicant states that the respondents have failed to adhere to its own Rule 3 i.e. NPCC (CC&A) Rules, 2005. The relevant rule is as follows:
ARTI ARTI 2026.05.22 15:08:14 +05'30' 6 OA No.1893/2023 Item No. 26 (C-3) "3. Application. 1 These rules apply to all Corporation employees including retired employees against whom disciplinary proceedings were initiated before retirement except those who fall in any of the following categories :-
(a) Employees on foreign service or deputation;
(b) Person in casual employment;
(c) Persons subject to discharge from service on less than one month's notice;
(d) Persons for whose appointment and other matters covered by the Rules special provisions is made by or under any law for the time being in force, in regard to the matters covered by such law
(e) Workcharged employees of the Corporation."
From the perusal of the said Rule 3, it speaks that the Applicant was not subject matter or liable for any action under the said NPCC (CC&A) Rules, 2005. Therefore, he was entitled to get his earned retiral dues."
3. While seeking relief, the applicant has raised grounds that there is no fault on his part and the respondents have willfully denied his legitimate and bonafide right towards his retiral dues. He submits that the said action of the respondents is arbitrary, biased, malafide and based on conjecture and surmises. He further states that there is no inquiry/investigation pending against the applicant either during his service period or after his retirement on his superannuation on 30.01.2021. Therefore, to withhold the amount of leave encashment amounts to gross discrimination, harassment, victimization and illegally denying the same with ulterior motive and nefarious design and in gross violation to the right of leave encashment or under any rule and law. He states that the respondents have no rule under which they can withhold the amount of leave encashment after his retirement on superannuation. He states that the respondents have not made out any case of misconduct against the applicant under which the applicant is liable to be imposed any punishment in accordance with the provisions of the said NPCC (CC&A) Rules, 2005 as such rules were not at all applicable to him after his retirement on superannuation. He also further contends that denial of leave encashment and retiral dues is in violation of his right under Article 14 & 16 of the Constitution.
4. The respondents have filed their reply on 18.01.2024. They have stated that due to pendency of vigilance inquiry of the applicant, the vigilance clearance was not given to him hence the applicant's due were not released by the respondents. They state that there is a clear provision under the NPCC (CC&A) Rules that on account of the pendency of disciplinary/judicial proceedings the retiral dues of the employee can be withheld subject to the outcome of the disciplinary/judicial proceedings. They further state that the applicant has chosen to conceal the fact from Tribunal that there is a vigilance inquiry against him. They submit that when the applicant was posted as Manager (Civil) of North Western Zone, Gurugram, he was found to be involved in siphoning public money from Bharat Scouts and Guides (BSG) for his personal gains. A complaint was received from the Director, Bharat Scouts and Guide, New Delhi vide a letter dated 25.04.2019 against Mr. Manohar Kumar, Zonal Manager, NPCC and others regarding sipohoning of public money from Bharat Scouts and Guides for their personal gains, the Under Secretary, Vigilance Section, Department of Water Resources, River Development & Ganga Rejuvenation (DoWR, RD & GR), Ministry of Jal Shaktihad had requested the Chief Vigilance Officer, NPCC to investigate the matter and furnish a factual report. It was informed vide letter dated 19.05.2023 that a Vigilance case was registered against the applicant while he was still in employment of the Respondents NPCC which the applicant was very much aware and even at the time of filing the present OA, however, he chose to deliberately conceal the said fact to mislead this Tribunal. They further stated that based on the investigation into the complaint the following irregularities were found:
ARTI ARTI 2026.05.22 15:08:14 +05'30' 7 OA No.1893/2023 Item No. 26 (C-3) "ⅰ) Deviation in PQ Criteria 1 of bid eligibility condition while shortlisting/finalizing the bidder was found.
ii) Additional work amounting to Rs. 304.72 lakhs (inclusive of 8% NPCC PMC Charges plus 14.5% service tax on PMC Charges beyond the permissible limit of 10% of the contract value, was given to the same contractor on nomination basis without competitive bidding, which violates the GFR provisions/guidelines of the Govt."
5. The respondents further state that a vigilance case is pending against the applicant and he concealed the fact about the pendency of the said vigilance case to mislead this Tribunal and on the basis of this alone the present OA is liable to be dismissed with heavy cost. They deny the applicant was entitled to get his retiral dues within thirty days from the date of his retirement. They also state that under the NPCC (CC&A) Rules, the retiral dues of an employee be kept withheld on account of pendency of disciplinary/judicial deciding subject to outcome of the said disciplinary judicial proceeding. They held the view that the applicant is not entitled to the alleged grant of Rs. 7,50,980 towards leave encashment or the interest there on as is being claimed by him in the present OA.
6. Heard the learned counsels for the parties and examined the pleadings in the matter.
7. While submitting oral arguments, learned counsel for the applicant stated that he will submit a written brief on behalf of the applicant alongwith judgment on which he has placed reliance. The applicant places reliance on judgment of the Hon'ble Supreme Court in the matter of State of Jharkhand & ors. V/s Jitendra Kumar Srivastava & anr. reported in (2013) 12 SCC 2010, NPCC (CC&A) (1st Amendment) Rules, 2005 (Annexure A-3), judgment of the Calcutta High Court in the matter of Sunil Baran Panda V/s Durgapur Projects Limited & Ors. in W.P.A No. 10421/2021 and judgment of SK Dua V/s State of Haryana & Anr. (2008) 3 SCC 44 in which the Hon'ble Apex Court has held that an employee has a right under Artices 14,19 and 21 of the Constitution of India to claim interest on delayed payment of retirement benefits.
(i) In the matter of State of Jharkhand & ors. V/s Jitendra Kumar Srivastava & anr. (supra) decided on 14.08.2013, the Hon'ble Supreme Court has held as under:
"A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
(ii) Court in the matter of Sunil Baran Panda V/s Durgapur Projects Limited & Ors. (supra) decided on 21.06.2021, the Hon'ble Calcutta High Court held as under:
"The Hon'ble Apex Court has already held in S.K. Dus (supra) that an employee had a nghi under Articles 14, 19 and 21 of the Constitution of India to claim interest on delayed payment of retirement benefits. Relevant paragraph is quoted below-
14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field the appellant could claim payment of interest relying on such rules. If there are administrative ARTI ARTI 2026.05.22 15:08:14 +05'30' 8 OA No.1893/2023 Item No. 26 (C-3) instructions, guidelines or norms prescribed for the purpose the appellant may claim benefit of interest on that basis. But even in absence of reader instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of 'bounty' is, in our opinion, well founded and needs no authority is support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."
(iii) In OA No. 288/2020 this Tribunal decided on 10.10.2023, relevant portion of the same reads as under:
"6. Heard the arguments by both the counsels.
6.1 In the instant case the applicant retired on 30.12.2017. In fact the respondent have initiated a criminal proceedings against certain employees of the corporation and subsequently the vigilance division of the corporation had found the present applicant as one of the responsible officials for over payment to the extent of Rs. 99.58 Lakhs to the contractor for construction of Bridge for which the present applicant was In- charge. Nevertheless, retirement benefits like leave encashment, arrears in respect of pay revision are supposed to be effected at the time of retirement. There are catena of judgments of Hon'ble Apex Court that the retirement benefit leave encashment are the private property and they cannot be taken away by except by following due procedure law, if any provision exists for the same. The Hon'ble Apex Court has held that under Article 300A of the Constitution of India such private property of the individuals cannot be taker. away without any statutory provisions. In the instant case, the respondents have not taken the action as per any statutory provision. The sole statutory provision which has been cited in Rule 14A of the NPCC (CC&A) Rules, 2005 which refers to payment of gratuity. It does not relate to payment of leave encashment as well as pay revision."
6.2 I agree with the contention of learned counsel for the applicant that Rule 3 of NPCC (CC&A) Rules, 2005 states that these rules will be applicable to those employees against whom Disciplinary Proceedings are pending. In the instant case, the respondents have not initiated any disciplinary proceeding against the applicant."
8. Government has also noticed in the judgment of the Hon'ble Supreme court dated 27.08.1991 in the matter of Union of India V/s K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in view of the instructions on the subject, the procedure to be followed in regard of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation and procedure and guidelines to be followed- Procedure and guidelines to be followed; an Office Memorandum was issued on 14.09.1992 by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, para 2 of which reads as follows:
"2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
i) Government servants under suspension;
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for a criminal charge is pending."
9. In the matter of Dattaram Atmaram Sawant v. Vidharbha Konkan Gramin Bank, 2024 SCC On Line Bom 1253, decided on 02-05-2024 by the Bombay High Court, the Court analyzed Regulations 61 and 67 of Chapter-VI of the Vidharbha Konkan Gramin Bank (Officers and Employees) Service Regulations, ARTI ARTI 2026.05.22 15:08:14 +05'30' 9 OA No.1893/2023 Item No. 26 (C-3) 2013 wherein it is stated that an employee earns one day of privilege leave for every 11 days of duty, with the entitlement being the accumulated days earned and that employees are entitled to full emoluments if they have fulfilled the prescribed duty period. Consequently, the Court stated that the right to leave is a statutory entitlement granted to employees as per the provisions of the law. The Court also held that a leave encashment is akin to a salary, which is a property. Depriving a person of his property without any valid statutory provision would violate Article 300-A of the Constitution. If an employee has chosen to accumulate his earned leave to his credit, then encashment becomes his right. The Court relied on State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, wherein the Supreme Court emphasised that the right to property cannot be infringed upon without due process of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. The Court also relied on Karnataka Vikas Grameena Bank v. Chandrashekhar, 2021 SCC On Line Kar 15842, wherein the issue of encashment of privilege leave in the case of a resignation was considered and it was held that there was no distinction between the one who retired and the one who resigned since the benefit had already accrued. The Court opined that any attempt to deprive an employee of pension, gratuity, or leave encashment without a statutory provision, is untenable and stated that leave encashment which was acquired by the petitioners constituted their property once earned. Deprivation of such property without statutory backing will not be permitted.
10. None of the conditions as mentioned in para 8 above prevail in the case of applicant hence the respondents are at fault in withholding the retiral benefits in form of his leave encashment. Further, in the instant case, the respondents did not bring out any reasons for withholding the leave encashment dues of the applicant. In view of the law laid down by the Hon'ble Supreme Court on this matter and has laid down in the case of SK Dua (Supra), the respondents are liable to pay interest on the delayed payment of the amount in respect of leave encashment to the applicant.
11. In view of the above, the OA is allowed with following directions:-
(i) The respondents are directed to pay interest, leave encashment with interest to the applicant at the prevailing GPF rates for the period of delayed payment from the date of his retirement till the payment of such dues.
(ii) The respondents are further directed to complete this exercise within eight weeks from the date of receipt of a certified copy of this Order.
(iii) No order as to costs. Pending MAs, if any, stand closed."
9. Learned counsel for the applicant further relied upon Rule 14(A)(ii) of the NPCC (CC&A) Rules, which reads as under:-
"Rule 14(A)(ii): During the pendency of the disciplinary proceeding, the disciplinary, authority may -withhold payment of gratuity, for ordering the recovery from gratuity of the whole or part of any pecuniary loss caused to the Company if the employee is found in a disciplinary proceeding or judicial proceeding to have been guilty of offence/misconduct as mentioned in sub-section (6) of section 4 of the payment of Gratuity Act, 1972 or have caused pecuniary loss to the company by misconduct or negligence, during his service including service rendered on deputation or on re- employment after retirement. However, the provisions of section 7 (3) and 7(3A) of the payment of Gratuity Act, 1972 shall be kept in view in the event of delayed payment, in case the employee is fully exonerated."
ARTI ARTI 2026.05.22 15:08:14 +05'30' 10 OA No.1893/2023 Item No. 26 (C-3)
10. As per the applicant the rule relied upon by respondents and quoted above herein to withhold leave Encashment does not permit withholding the same. The said rule is relatable to withholding gratuity in certain situations only and as such the same cannot be made applicable to the applicant for withholding Leave encashment.
11. We have heard learned counsel for the parties and perused the material available on record.
12. It is not in dispute that the applicant retired from service on attaining the age of superannuation on 31.08.2019. It is also not disputed that the leave encashment amount payable to the applicant has not been released by the respondents on account of pendency of criminal proceedings initiated by CBI.
13. This Tribunal in OA No. 1066/2022 (Ram Kumar Sharma Vs. The Chairman & Managing Director, NPCC Ltd.), decided on 15.10.2024, while dealing with an identical issue, has already held that withholding of retiral dues including leave encashment indefinitely is not justified and the employee is entitled to release of the same subject to applicable rules.
14. We do not find any reason to take a divergent view from the aforesaid judgment.
15. Accordingly, the present OA is disposed of with a direction to the respondents to release the admissible leave encashment amount payable to the ARTI ARTI 2026.05.22 15:08:14 +05'30' 11 OA No.1893/2023 Item No. 26 (C-3) applicant, if not already released, along with interest @ 7.1% per annum (GPF rate), from the date it became due till the date of actual payment.
16. The aforesaid exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order.
17. No order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
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