Madras High Court
The State Of Tamil Nadu vs V. Mahalingam on 10 April, 2019
Author: P.D. Audikesavalu
Bench: K.K. Sasidharan, P.D. Audikesavalu
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2019
CORAM:
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
and
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
W.A. No. 1285 of 2019
and
C.M.P. No. 8755 of 2019
1. The State of Tamil Nadu,
Rep. by the Secretary to Government,
Public Works Department,
Secretariat,
Fort St. George,
Chennai - 600 009.
2. The Engineer-in-Chief (Buildings),
Chief Engineer (Buildings) Chennai Region,
Chief Engineer (General),
Public Works Department,
Chepauk,
Chennai - 600 005. ... Appellants/Respondents
-vs-
V. Mahalingam ... Respondent/Petitioner
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent, praying to
set aside the order dated 28.11.2016 made in W.P. No. 30076 of 2016.
For Appellants : Mrs. A. Sri Jayanthi,
Special Government Pleader
For Respondent : Mr. A.R. Suresh
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JUDGMENT
(Judgment of the Court was delivered by P.D. AUDIKESAVALU, J.) The intra-Court Appeal arises out of the order dated 28.11.2016 in W.P. No. 26062 of 2016 passed by the Learned Judge of this Court. The parties are hereinafter referred to as per their description in the Writ Petition for the sake of convenience.
2. The Petitioner, while working as Assistant Executive Engineer in the Public Works Department, Chennai, was placed under suspension on 30.05.2006. Since the Petitioner was attaining the age of superannuation on the afternoon of 31.05.2006, and the disciplinary proceedings had been initiated against him, the Respondents by proceedings dated 30.05.2006 directed that the Petitioner shall not be permitted to retire on attaining the age of superannuation and a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, had been issued on the same day. The Petitioner was imposed with the punishment of removal from service by the Government of Tamil Nadu by G.O. (D) No. 508, Public Works (E1) Department dated 03.12.2013. Further, the Petitioner and some other officials, who had been prosecuted in criminal proceedings in Special C.C. No. 8 of 2011, were acquitted by order dated 27.04.2016. Thereafter, the Petitioner made a representation dated 03.02.2014 to the First Respondent for the encashment of his earned leave citing the decision of the Hon'ble http://www.judis.nic.in 3 Supreme Court of India in State of Jharkhand -vs- Jitendra Kumar Srivastava [(2013) 12 SCC 210]. The Second Respondent by proceedings No. CII(3)/2003/2006-181 dated 20.02.2014 had rejected the claim of the Petitioner stating that encashment of earned leave provided in Rule 86 of the Fundamental Rules is not applicable for those who have been removed from service on finalization of the disciplinary proceedings. The Petitioner filed W.P. No. 30076 of 2016 in this Court challenging the proceedings No. CII(3)/2003/2006-181 dated 20.02.2014 passed by the Second Respondent and had sought for consequential direction to disburse the earned leave encashment for 330 (240+90) days to the Petitioner with interest at the rate of 18% per annum from the date of termination of the extended service on 03.12.2013.
3. The Learned Judge, who heard the Writ Petition, by order dated 28.11.2016, after referring to the earlier decision of this Court in T. Veeravinothan -vs- Registrar of Co-oprative Societies [(2016) 1 LLJ 730] directed the Respondents to disburse the earned leave encashment for 330 days as claimed by the Petitioner. Aggrieved thereby, the Respondents have preferred this appeal.
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4. We have heard Mrs. A. Sri Jayanthi, Learned Special Government Pleader appearing on behalf of the Respondents, Mr. A.R. Suresh, Learned Counsel appearing for the Petitioner and perused the materials placed on record, apart from the pleadings of the parties.
5. Before proceeding further, it would be necessary to examine the nature and legal basis for payment of 'earned leave' to Government Servants. Rules 7 to 12 of the Tamil Nadu Leave Rules, 1933, contain the statutory provisions for earned leave. It could be seen from the aforesaid provisions that the leave account of every permanent Government Servant shall be credited with earned leave in advance in two instalments of fifteen days each on the first day of January and first day of July every year. The leave at the credit of a Government Servant at the close of the previous half year shall be carried forward to the next half year, subject to the condition that the leave so carried forward plus the credit for the half year do not exceed the maximum limit of 240 days. The said rules further provide that if the leave standing to the credit of the Government Servant is not taken within a year as per the Service Rules, it may be encashed or accumulated. The accumulated leave may be availed by the Government Servant during his tenure of service or at the time of retirement or leaving the employment which obviously means that the right of the Government Servant to receive http://www.judis.nic.in 5 the same stands vested with him during that period itself which he can utilize at anytime he chooses. The Hon'ble Supreme Court of India in State of Jharkhand -vs- Jitendra Kumar Srivastava [(2013) 12 SCC 210] has made it abundantly clear that leave encashment cannot be taken away without any statutory provision. In short, 'earned leave' which is created by statute, partakes the character of an emolument protected as a right to property of the concerned Government Servant under Article 300-A of the Constitution. It has been provided in Rule 86(a)(i) of the Fundamental Rules that the Competent Authority shall suo motu draw and disburse the cash benefits and encashment of the earned leave at the credit of the Government Servant without formal sanction orders on the date of retirement or the date of termination of extension of service, as the case may be. The removal of a Government Servant from service as a measure of punishment of conclusion of disciplinary proceedings after extending his service on attaining the age of superannuation for that purpose, would naturally amount to 'termination of extension of service', and in terms of that rule, the Competent Authority on that date ought to have suo motu disbursed the cash benefit and encashment of earned leave, if the same had not been availed by the Petitioner earlier. The Second Respondent has wrongfully refused to pay the earned leave to the Petitioner, which he was legitimately entitled to receive, even on that date.
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6. In the backdrop of the aforesaid legal position, we required the Learned Special Government Pleader to show which statutory provisions enabled the Respondents to withhold the 'earned leave' of the Petitioner after he attained the age of superannuation. In reply thereto, the Learned Special Government Pleader referred to Rules 21 and 69 of the Tamil Nadu Pension Rules, 1978 and Rule 56(1)(c) of the Fundamental Rules and Note 3 to Rule 7-A of the Tamil Nadu Leave Rules, 1933. We shall presently examine whether the same enable the Respondents to withhold the encashment of the earned leave of the Petitioner.
7. Rule 21 of the Tamil Nadu Pension Rules, 1978, is extracted below:-
“21. Forfeiture of service on dismissal or removal:- Dismissal or removal of Government Servant from a service or post entails forfeiture of his past service.” The Learned Special Government Pleader submits that the forfeiture of past service of a Government Servant on his dismissal or removal from a post entails that no benefits arising out of service could be claimed by him. It must be remembered that the aforesaid rule has to be read in the context of the Tamil Nadu Pension Rules, 1978, where it is found, and cannot be extended beyond its scope. Viewed in that perspective, what has been meant to be conveyed by 'forfeiture' in the said rule is that a Government Servant, who has been dismissed or removed from service, would not be entitled to http://www.judis.nic.in 7 claim pension relying on his past service. As such, it would be far fetched to read that provision as if all other monetary benefits that have already accrued to him during service would also be lost or deprived.
8. Next, Rule 69 of the Tamil Nadu Pension Rules, 1978, relates to payment of provisional pension when disciplinary proceedings are pending and there is nothing mentioned anywhere in that rule about earned leave and as such, the same does not have any relevance to the issue now under consideration.
9. It is apparent on a reading of Rule 56(1)(c) of the Fundamental Rules that it empowers to continue in service, a Government Servant, who has attained the age of superannuation, till the completion of disciplinary proceedings or criminal prosecution, so that depending on its outcome, a decision regarding imposing any penalty on such delinquent Government Servant could be taken, but there is nothing therein to infer that earned leave of the said Government Servant could be withheld during that period.
10. Insofar as Note 3 to Rule 7-A of Tamil Nadu Leave Rules, 1933 is concerned, it relates only to ineligibility to receive earned leave during the period of suspension and it has nothing to do with the earned leave which has already been accrued to a Government Servant for the period he has worked.
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11. On the contrary, reference may be made to the fourth proviso to Rule 8(b) of the Tamil Nadu Leave Rules, 1933, which expressly provides for earned leave to be credited to a Government Servant till his dismissal from service. This clearly reflects that there is no legislative intent to deny that benefit to a Government Servant even if he is dismissed from service.
12. The Special Government Pleader finally sought to justify the withholding of the earned leave on the basis of the communication issued by the Secretary to Government, Government of Tamil Nadu, Personnel and Administrative Reforms (FR.3) Department in the letter No. 6162/FR/III/ 90-1 dated 17.09.1990, in which clarification has been given on the points raised by the Accountant General regarding the implementation of suo motu authorization of encashment of earned leave at credit at the time of retirement. In particular, the following points and clarifications issued have been relied:-
Points raised by the Accountant- Clarification Issued General
(i) Whether the word 'retirement' There are already instructions for mentioned in Tamil Nadu Leave Rules-7 encashment of Earned Leave at the time of includes compulsory retirement as a compulsory retirement under Fundamental measure of punishment, voluntary Rules 56(2) and Tamil Nadu Civil Services retirement, dismissal etc., apart from the (Classification, Control and Appeal) Rules, superannuation retirement and the voluntary retirement under Fundamental Government Servants are eligible for the Rules 56(3) and also for medical encashment of terminal leave in these invalidation. Necessary amendment to cases also. Rule 7 of the Tamil Nadu Leave Rules have been issued in G.O. Ms. No. 345, Personnel and Administrative Reforms (FR. Spl.), dated 31.07.1990 in this regard.
http://www.judis.nic.in 9 Points raised by the Accountant- Clarification Issued General
(ii) Whether the encashment of terminal If a Government servant is suspended leave is to be allowed, when the shortly before retirement without prejudice Government servants are placed under to the disciplinary proceedings pending suspension shortly before retirement or against him, he may be permitted for are permitted to retire without prejudice encashment of earned leave only after to the disciplinary proceedings pending finalisation of the disciplinary proceedings against them. It is felt that in such cases, and regulation of the suspension period. If the cash equivalent of leave may have to a Government servant is not suspended but be withheld for effecting any recovery only disciplinary proceedings are which may be found to be due while contemplated before retirement, such finalising the cases. person may be allowed for encashment of Earned Leave at the time of superannuation without prejudice to the disciplinary action pending against him.
On a perusal of the same, we are of the considered view that the aforesaid clarifications issued by the Government did not expressly authorize the earned leave of the Petitioner to be withheld and in any event, the same was only in the nature of executive instructions, which do not have any statutory flavour and as such, cannot be 'law' for the purpose of Article 300-A of the Constitution. We are fortified in this view by the decision of the Hon'ble Supreme Court of India in State of Jharkhand -vs- Jitendra Kumar Srivastava [(2013) 12 SCC 210], in which it has been held as follows:-
"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 http://www.judis.nic.in 10 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."
13. As explained in detail, we do not find anything contained in any of the statutory provisions relied by the Learned Special Government Pleader which have the effect of enabling the Government to withhold the encashment of the accumulated earned leave of a Government Servant when he attained the age of superannuation during his continuance in service pursuant to disciplinary proceedings or criminal prosecution pending against him at that point of time. Accordingly, we hold that in the absence of an enabling statutory provisions to that effect, an unfair advantage cannot be taken of a rather fortuitous situation by snatching the frugally accumulated earned leave of a Government Servant in a capricious manner, which remains unencashed at the time of his attaining the age of superannuation.
14. The earlier decisions of this Court in District Collector, Tiruvallur -vs- T.L. Nageswara Rao (Order dated 13.04.2016 in W.A. No. 458 of 2016) and in Chairman cum Managing Director, TANGEDCO -vs- P.K. Panchaksharam (Order dated 26.02.2016 in W.A. No. 207 of 2016), which has been confirmed by the Hon'ble Supreme Court of India in the Order dated 06.07.2017 in S.L.P. (C) No. 16229 of 2016, also support the aforesaid view that we have taken.
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15. In fine, the order dated 28.11.2016 in W.P. No. 30076 of 2016 passed by the Learned Judge is affirmed and the Writ Appeal is dismissed. The Respondents shall file a report of compliance of the order passed by the Writ Court before the Registrar (Judicial) of this Court by 31.05.2019. Consequently, the connected Miscellaneous Petition is closed. No costs.
(K.K. SASIDHARAN, J.) (P.D. AUDIKESAVALU, J.) 10.04.2019 vjt Index: Yes Note: Issue order copy by 16.04.2019.
To
1. The Secretary to the Government of Tamil Nadu, Public Works Department, Secretariat, Fort St. George, Chennai - 600 009.
2. The Engineer-in-Chief (Buildings), Chief Engineer (Buildings) Chennai Region, Chief Engineer (General), Public Works Department, Chepauk, Chennai - 600 005.
Copy to The Registrar (Judicial) Madras High Court, Chennai - 600 104.
http://www.judis.nic.in 12 K.K. SASIDHARAN, J.
and P.D. AUDIKESAVALU, J.
vjt W.A. No. 1285 of 2019 10.04.2019 http://www.judis.nic.in