Madras High Court
The Additional Director Of vs B.Manoharan on 9 January, 2020
Author: M.Duraiswamy
Bench: M.Duraiswamy, T.Ravindran
W.A.(MD) No.14 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
and
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
W.A.(MD) No.14 of 2020
and
C.M.P.(MD) No.191 of 2020
1.The Additional Director of
Survey and Land Records
Tamil Nadu Survey House
Chepauk, Chennai -600 005
2.The District Collector
Ramanathapuram District
Ramanathapuram
3.The Assistant Director of Survey
and Land Records
Collectorate Complex
Ramanathapuram ... Appellants
-vs-
B.Manoharan ... Respondent
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 07.06.2018, passed in W.P.(MD) No.12144 of 2018, on the file of
this Court.
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W.A.(MD) No.14 of 2020
For Appellants : Mr.V.R.Shanmuganathan
Special Government Pleader
For Respondent : Mr.S.Visvalingam
JUDGMENT
[Judgment of the Court was made by T.RAVINDRAN, J.] The writ appeal is directed against the order, dated 07.06.2018, passed in W.P.(MD) No.12144 of 2018.
2. The writ petition in W.P.(MD) No.12144 of 2018 has been preferred by the respondent to issue a writ of certiorarified mandamus to call for the records of the third appellant i.e. the Assistant Director of Survey and Land Records, Ramanathapuram, relating to his order dated 13.12.2017, to quash the same, particularly, Paragraph Nos.(1) and (2) and consequently, to direct the appellants to disburse the encashment of leave salary and special provident fund I and II, as per the contribution made by him, within a specified time frame that may be fixed by this Court.
3. On factual matrix, it is found that the respondent was working as a Draftsman in the District Survey Office, Ramanathapuram and on superannuation, he retired from service on 31.07.2017. But, he had not been 2/9 http://www.judis.nic.in W.A.(MD) No.14 of 2020 permitted to retire from service on the date of superannuation and instead, he was placed under suspension, by order dated 28.07.2017, on the reasoning that a criminal case was pending against him in C.C.No.7 of 2005, on the file of the Chief Judicial Magistrate Court, filed by the Inspector of Police, Vigilance and Anti-Corruption.
4. According to the respondent, even though he has not been permitted to retire from service on account of the criminal case alleged to have been pending against him, it is putforth that he is still entitled to seek the benefit of the encashment of the leave salary as well as the special provident fund and the same has been accepted by the learned Single Judge by relying upon the various decisions referred to in his order and consequently, the learned Single Judge was pleased to allow the writ petition filed by him and directed the appellants to release the encashment of leave salary and special provident fund, as per his entitlement, within a period of four weeks from the date of receipt of a copy of the order. Impugning the same, the writ appeal has been preferred by the appellants.
5. When the writ appeal was taken up for hearing, the learned Special Government Pleader appearing for the appellants, has fairly conceded 3/9 http://www.judis.nic.in W.A.(MD) No.14 of 2020 that insofar as the release of earned leave salary and special provident fund, the pendency of the disciplinary proceedings laid against the respondent as abovestated would not be a bar and he would state that the position of law in this regard has been outlined by the Honourable Division Bench of this Court in the Judgment dated 31.07.2019, passed in W.A.(MD) No.105 of 2019 [The Secretary to Government and others vs. K.Palaniyandi].
6. On perusal of the abovecited decision of the Honourable Division Bench of this Court, it is found that the Honourable Division Bench, after perusing the rules pertaining to the issue involved in the matter, proceeded to hold that a Government Servant, whose service is either terminated by notice or has been compulsorily retired from service as a measure of punishment and even a person, who is dismissed from service, is also entitled to the encashment of leave salary and outlined the position of law, with reference to the same, in the following manner:
“13.Perusal of the above said Rule and the Explanation would show that even a Government Servant, whose service is either terminated by notice or has been compulsorily retired from service as a measure of punishment and where the service of such Government Servant has been extended beyond the date of superannuation, of-course in the interest of 4/9 http://www.judis.nic.in W.A.(MD) No.14 of 2020 public service, is certainly entitled for encashment of leave on private affairs.
14.In other words, it is to be noted that even a person who is dismissed from service, is also entitled to the encashment of leave salary. If that being case, we do not find any logic behind the contention of the appellant as if such amount can be paid only after the termination of the proceedings. In other words, there must be a specific reason with object for retention of the said sum, pending disciplinary proceedings. What the Government Servant is entitled to even at the worst senorio of dismissal of his service, cannot be denied to be paid on his request, merely because, his service is retained.
15.There are two types of monetary benefits payable to a Government Servant on retirement.
One type of such benefits, such as Earned Leave, Provident Fund and Special Provident Fund amount, is a benefit already accrued and got credited to the account of the employee, which he is entitled to receive automatically on attaining superannuation. Those amounts become his personal property. It makes no difference even if he is not permitted to retire and a departmental proceedings is initiated against him. In other words, those amounts are derived out of like his 5/9 http://www.judis.nic.in W.A.(MD) No.14 of 2020 “savings” and therefore, the employer cannot stake any claim or impose any restriction as to when such amount could be paid to the employee even after attaining the age of superannuation. In other words, even as per rules, these amounts are payable either on the date of superannuation or on the date of termination of extension of service. Such payment is to be made even to a person dismissed from service. When such being the position, there cannot be any justification on the part of the employer to retain the said sum by citing the pendency of proceedings.
16.The other type of monetary benefit payable to an employee on his retirement, such as pension, gratuity etc., is certainly not liable to be paid automatically on the person attaining superannuation, if the said person is not permitted to retire and on the other hand, proceedings are initiated against him and the same is pending. The outcome of such proceedings will certainly have a bearing on the entitlement to get or liability to pay such amount. Therefore, the person, who attained the age of superannuation and not to allow retire, based on pendency of the disciplinary proceedings, cannot expect the employer to make the payment of pension and gratuity etc., even before the proceedings gets terminated, since such liability is depending upon the outcome of such proceedings.” 6/9 http://www.judis.nic.in W.A.(MD) No.14 of 2020
7. Furthermore, as could be from the abovecited decision of the Honourable Division Bench, they had placed reliance upon the decisions of the Honourable Division Bench of this Court rendered in W.A.(MD) No.1423 of 2018, dated 22.10.2018 [The District Collector and another vs. V.Balasubramanian]; W.A.No.207 of 2016, dated 26.02.2016 [The Chairman -cum-Managing Director, Tamil Nadu Generation and Electricity Distribution Corporation Ltd. and others vs. P.K.Panchaksharam] and also placed reliance upon the decision of the Honourable Division Bench of this Court, in the case of State of Tamil Nadu vs. V.Mahalingam, reported in 2019-1-Writ L.R. 825. Considering the principles of law outlined in the abovecited decisions, when it is seen that the monetary benefits, such as, earned leave salary, provident fund and special provident fund being already accrued and got credited to the account of the employee, which he is entitled to get automatically on account of superannuation and those amounts being his personal property as held in the abovecited decisions, in such view of the matter, even if the employee is not permitted to retire from service on the footing that departmental proceedings are pending against him, the same would not be a bar to release the payment of the abovesaid amounts and when it is seen that such payments can even be extended to a person dismissed from service, in such view of the matter, we 7/9 http://www.judis.nic.in W.A.(MD) No.14 of 2020 are of the view that the learned Single Judge has rightly held that the respondent is entitled to obtain the encashment of the earned leave salary and special provident fund, as per his entitlement and right in directing the appellants to release the same.
8. In the light of the above discussions, we do not find any reason to interfere with the order passed by the learned Single Judge. In conclusion, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
[M.D.,J.] [T.R.N.,J.]
09.01.2020
Index : Yes / No
Internet : Yes / No
krk
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W.A.(MD) No.14 of 2020
M.DURAISWAMY, J.
and
T.RAVINDRAN, J.
krk
W.A.(MD) No.14 of 2020
and
C.M.P.(MD) No.191 of 2020
09.01.2020
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http://www.judis.nic.in