Nilakantha Dash vs Registrar Of Cooperative .... Opposite ... on 4 November, 2024

[Cites 38, Cited by 0]

Orissa High Court

Nilakantha Dash vs Registrar Of Cooperative .... Opposite ... on 4 November, 2024

1. The petitioner, retired from Urban Cooperative Bank Ltd., Cuttack as General Manager, filed W.P.(C) No.10140 of 2021 in this Court assailing the inaction of the authorities of the Urban Cooperative Bank Ltd., Cuttack (Opposite Party no.3), in releasing his leave salary encashment amount in terms of Rule 39(e) of the Staff Service Rules of the Urban Cooperative Bank Ltd., 2003 (hereinafter referred to as Rules, 2003 for brevity) despite his retirement on attaining the age of superannuation w.e.f. 31.08.2019.

Before approaching this Court in the aforesaid Writ Petition, the petitioner had submitted his grievance before the administrator (Opposite Party No.2) by his representation dated 27.01.2021 and taking cognizance of which this Court disposed of the said writ petition by order dated 08.04.2021 to consider his pending representation and to take a lawful decision in the matter keeping in view the averments of the writ petition as well as provision under Rule 39(e) of Rules, 2003.

In terms of such order of this Court representation of the Petitioner was disposed of by the impugned order dated 25.08.2021 at Annexure-9 observing that keeping in view the liability of the petitioner to the Bank already determined in some cases and seemingly latent others which are W.P.(C) No.31821 of 2021 Page 2 of 36 pending as of then, the representation submitted by the petitioner does not merit consideration.

2. Being aggrieved with such decision of the Administrator by impugned order dated 25.08.2021 (Annexure-9) the present writ petition has been filed.

For convenience of reference the impugned order dated 25.08.2021 at Annexure-9 and the "Prayer" in the writ petition is extracted hereunder:-

"Annexure-9 WHEREAS Sri N.K. Dash, GM of the Bank retired from service since 31.08.2019 had laid W.P.(C) No.10140 of 2021 before the Hon'ble High Court impugning therein non-release of his post- retirement leave salary encashment amount wherein by ex parte disposal of the writ petition at the admission stage, the Hon'ble Court by order dt.08.04.2021 has directed the O.P. No. 2, i.e., the. Committee of Management represented by the Administrator of the bank to look into the grievance of the petitioner as under Annexure- 7 (representation dt.27.01.2021) and to take a lawful decision in the matter keeping in view the averments of the writ ptn as well as provision under Rule 39(e) of the Staff Service Rules. AND WHEREAS Rule - 39(e) of the Staff Service Rules of the Bank provides that an employee of the Bank shall be entitled to en- cash the leave at his credit at the time of retirement subject to a maximum of 300days.

AND WHEREAS Sri N.K. Dash, GM (Rtd) is observed to be frightfully entangled in D.P.(s) drawn as well as contemplated, W.P.(C) No.31821 of 2021 Page 3 of 36 surcharge proceedings awarded as well as pending, vigilance case, entailing horrendously insurmountable financial implications attributed mostly to acts of malfeasance and misfeasance in delivery of credit facilities.

AND WHEREAS Sri N.K. Dash, GM has been allowed to superannuate from service on 31.08.2019 pending disposal of disciplinary proceeding drawn vide charge sheet No.863/2003-04 dt.25.11.2003 and disciplinary proceeding contemplated on the basis of report dt.03.03.2012 in CTC Vigilance File No.46/2011 and this apart, Sri Dash is made liable in disposal of Surcharge Proceedings No.42/2001 (order dt.23.09.2005), 235/2002 (order dt.09.01.2006), 156/2003 (order dt.06.09.2006), 89/2004 (order dt.25.02.2006) and Surcharge Proceedings No.155/2003 & 07/2010 are pending for fixation of liability wherein he is arrayed as an opp. party.

AND WHEREAS Sri N.K. Dash, GM (Rtd) has superannuated from service of the bank leaving behind present outstanding of Rs.3,54,991,00 in Flexible Personal Advance (FPA) A/c No.13901240058 and present outstanding of Rs.1,26,198.00 in Personal Advance A/c No.13999578626 which he should have repaid before demitting office in the bank.

HENCE, after careful consideration of the representation dt.27.01.2021 of Sri N.K. Dash, GM (Rtd) vis-à-vis the writ petition (supra) and with due regard to the order of the Hon'ble Court, the undersigned is constrained to turn down the representation keeping in view the liabilities of the petitioner to the W.P.(C) No.31821 of 2021 Page 4 of 36 bank already determined in some cases and seemingly latent in some other cases that are pending as of now.

             xxx                              xxx                              xxx"

                                         "PRAYER

It is, therefore, most humbly prayed that this Hon'ble Court be graciously pleased to admit this writ application issue Rule Nisi calling upon the Opp. Parties to show cause as to why:

1. The order dt. 25.08.2021 passed by the O.P. No.2, i.e., A.D.M (General)-cum-Administrator of the Bank under Annexure-9 shall not be quashed/set aside,

2. A direction shall not be issued to the Opp. Parties directing them to release all consequential retirement service benefits be not paid to the petitioner along with delayed payment interest @12% Ρ.Α.

3. A direction shall not be issued to O.P. No.2 and O.P. No.3 to release and pay of Rs.7,10,350/- (Seven lakh ten thousand three hundred fifty) only with interest @ 7% per annum from 01.09.2019 as leave salary benefit to the petitioner within one month, If the Opp. Parties fail to show any cause or show any insufficient cause, then the aforesaid Rule be made absolute by issuing an appropriate writ/writs and further be pleased to pass any other order/orders as would be deemed fit and proper in the facts and circumstances of the present case.

             xxx                              xxx                              xxx"

      Stand of the Petitioner

      3)     The contentions of the petitioner in impugning the order of

Administrator (opposite party no.2) at Annexure-9 run thus:-

W.P.(C) No.31821 of 2021 Page 5 of 36

a) While working as Senior Branch Manager the petitioner was promoted to the rank of General Manager in October, 1992 and ultimately rank of the Chief Executive Officer and continued as such till his retirement on 31.08.2019, attaining the age of superannuation.

b) As per the provision of Rule 39(e) of the Rules, 2003 issued by Opposite Party No.1- Registrar of Cooperative Societies, Orissa, in exercise of power under Section-33-A of Orissa Cooperative Societies Act, 1962, the petitioner is entitled to encash the leave subject to maximum of a 300 days at the time of his retirement. Since he has 300 days of leave to his credit at the time of his retirement he is entitled to get Rs.7,10,350/-.

Section-33-A of Orissa Cooperative Societies Act, 1962 reads as under:-

"[33-A. Qualifications etc. of employees of Societies - [(1) The Registrar shall -

(a) fix the number and designation of the employees to be employed by the Co-operative Societies; and

(b) make rules, regulating the qualification, remuneration, allowances and other conditions of service of such employees.] [Provided that the qualification of the Chief Executive Officer of the State Co-operative Bank and Central Co-operative Banks shall be such as may be stipulated by the National Bank in consultation with the Reserve Bank of India];

W.P.(C) No.31821 of 2021 Page 6 of 36

[(2) Notwithstanding anything contained in Sub-section (1), the Registrar, in consultation with the National Bank may issue guidelines in the matter of personnel policy, staffing pattern, recruitment and fixation and revision of pay and allowances of the employees of the Co-operative Credit Society keeping in view the volume of business, viability and proûtability of such society.]"

c) The petitioner approached the authorities for release of the same but the authorities did not pay his legitimate dues although it is treated as a constitutional right of a retired employee as much as there is no legal provision justifying denial of such benefit in the Rule 2003 in force.

d) Since the Petitioner was deprived of his legitimate entitlement he had approached this Court in W.P.(C) No.10140 of 2021 which was disposed of by order dated 27.01.2021 with the following direction;

"xxx xxx xxx Considering that this writ petition is filed seeking a direction for release of the leave salary encashment under Rule 39(e) of the Staff Service Rules and finding that on the selfsame issue a representation at the instance of the Petitioner vide Annexure-7 is still pending before the Opposite Party No.2, this Court, in disposal of the writ petition, directs the Opposite Party No.2 to look into the grievance of the Petitioner vide Annexure-7 and take a lawful decision in the matter taking into account the grounds stated in this writ petition so also the documents appended thereto and also keeping in view the provision at Rule-39(e) of the Staff Service Rules.

W.P.(C) No.31821 of 2021 Page 7 of 36

The entire exercise shall be completed within a period of eight weeks from the date of communication of a copy of this order by the Petitioner.

xxx xxx xxx"

And, the petitioner being aggrieved with non-compliance of the order within the period stipulated therein filed a contempt petition CONTC No.4835 of 2021.

During the pendency of the contempt petition the impugned order dated 25.08.2021 at Annexure-9 has been issued by the Administrator - Opposite Party No.2 disclosing the reason for turning down the request of the petitioner for release of amount equivalent to encashment of E.L of 300 days.

e) At the outset the petitioner has impugned such decision for the failure on the part of the Opposite Party No.2-Administrator, in not giving him an opportunity of hearing before negating his claim.

f) The petitioner has also referred to various correspondences in the Departmental Proceeding referred to in Annexure-9 to justify his allegation that management did not act diligently to complete the disciplinary proceedings in time which according to the petitioner was deliberate and was only done to deprive him from becoming permanent Chief Executive of the Bank, although the permanent Chief Executive retired w.e.f. 31.12.1998 and though the petitioner was the next senior W.P.(C) No.31821 of 2021 Page 8 of 36 most employee. Yet, was not promoted to the said rank rather the Bank utilized his service as in-charge Chief Executive Officer and in the process the petitioner was deprived from availing the benefits which would have enured to his benefits on regular promotion.

g) There is no provision in the staff service rule to continue disciplinary proceedings if already initiated against an employee before his retirement to post retirement or to initiate any proceeding after his retirement. As such the petitioner having retired w.e.f. 31.08.2019 on attaining the age of superannuation, there being no jural employer employee relationship between the petitioner and the Opposite Parties- Bank the pending disciplinary proceedings are deemed to have been closed. It is submitted that disciplinary proceeding initiated on 25.11.2003 ought to have been closed within a reasonable period in view of the retirement of the Petitioner especially in the absence of any justification for the delay.

h) It is further submitted that admittedly the pendency of the proceeding was not a stumbling block for the petitioner to discharge his higher responsibility as Chief Executive after retirement of regular Chief Executive in different spells.

i) Referring to the impugned order at Annexure-9, it is stated that the authorities did not release the unutilized leave salary, in contemplation of W.P.(C) No.31821 of 2021 Page 9 of 36 disciplinary proceeding on the basis of a report dated 03.03.2012 received in connection with Cuttack Vigilance Case No.46 of 2011. Such contemplated proceeding since 2012 was not initiated till the date of his retirement and in absence of any provision in the Rule 2003 there is no scope for the authority to initiate such proceeding.

j) With respect to the different Surcharge Proceeding the petitioner has narrated in detail but most significantly took a stand that the leave salary and the unutilized encashment of leave salary admissible to an employee on his retirement cannot be encumbered by the authorities for adjustment of any liability.

The petitioner has relied upon Rule 48(iv) of Rules, 2003 which prescribes that only Income Tax can be deducted from leave salary encashment value and such fund shall not be liable for any other deduction on account of provident fund subscription, Insurance Premium, House Rent, Payment of Advance etc.

k) The petitioner further submits that in his representation dated 04.02.2020 addressed to the Chief Executive Officer of the Bank he had requested to credit Leave Salary Encashment value to his S.B. Account by further indicating that though he had availed some advances/loans from the Bank all such advances/loans except two were closed before his retirement being adjusted by monthly instalment from his salary. W.P.(C) No.31821 of 2021 Page 10 of 36

With respect to two uncleared advances, though the Registrar of Cooperative Societies had informed the Bank since 09.12.2004 to fix the monthly installments to recover the advance and the interest thereon adjusting it, to recoup the same, before retirement of the petitioner but no steps were taken since 2004 till the retirement of the petitioner in the year 2019. It is contended that under no circumstances the liability of the petitioner to pay such amount can have any bearing on the encashment of leave salary of the petitioner after his retirement particularly in view of Rule 39(e) read with Rule 48(iv) of Rules, 2003.

Counter

4) On being noticed the Opposite Party No.3 filed a preliminary counter to justify the stand of Bank, in rejecting the grievance of the petitioner by Annexure-9, on different ground as under:-

a) In addition to the different departmental proceeding and vigilance proceeding against the Petitioner, it has been submitted that the petitioner was arrested on 25.08.2011, remanded to judicial custody till 20.09.2011.

He was placed under suspension and thereafter reinstated in service.

b) Number of illegalities and irregularities were evidenced during the service period of the petitioner and in some cases investigations are still going on.

W.P.(C) No.31821 of 2021 Page 11 of 36

c) After superannuation of the petitioner on 31.08.2019, pending disposal of the departmental proceeding drawn against him and as per order dated 16.08.2021 of the Appellate Authority, the Bank has deposited the gratuity claim of the petitioner with the controlling authority under the Payment of Gratuity Act in T.G. Case No.1 of 2020 filed by the petitioner.

d) So far the unutilized leave salary benefit it is submitted that it is well within the jurisdiction and competence of the Opposite Party-Bank to withhold even forfeit the same against any financial liability accrued or anticipated qua the petitioner.

e) The petitioner has been allowed to superannuate leaving behind outstanding amount of Rs.4,07,108/- in flexible personal advance and outstanding amount of Rs.1,26,198/- in personal advance as much as there is a pending liability of Rs.2,14,627/- as excess house rent allowance received by him in contravention of Rule 29(a) of Rules, 2003 which he is liable to deposit before claiming release of leave salary encashment.

f) The petitioner has submitted grievance before the authorities to disburse his leave salary encashment amount without clearing the dues like other retiree of the Bank. Since there was a direction to take a „lawful decision‟ by this Court in W.P.(C) No.10140 of 2021, the competent authority after taking into consideration all the aspects, rightly rejected his claim.

W.P.(C) No.31821 of 2021 Page 12 of 36

g) It is further urged that the petitioner has an alternative remedy for redressal of his grievance under Section 68 of the Orissa Cooperative Societies Act, 1962 and as such the writ petition is not maintainable. Section 68 of the Orissa Cooperative Societies Act, 1962 reads as under:-

"68. Disputes which may be referred to arbitration :- (1) Not-withstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or the business of a society, other than a dispute required to be referred to the Tribunal and a dispute required to be adjudicated under the Industrial Disputes Act, 1947 (14 of 1947), [and a dispute relating to non payment of contribution to the Co-operative Education Fund referred to in Sub-Section (3) of Section 56] shall be referred to the Registrar if the parties thereto are among the following, namely :-

(a) the Society, its Committee, past Committee, any past or present Officer or office bearer, any past or present agent, any past or present servant, or the nominee, legal heir or representative or any deceased officer, office-bearer, deceased agent or deceased servant of the Society; or

(b) a member, past member, or a person claiming through a member, past member or deceased member of the Society, or of a Society which is a member of the Society; or

(c) a surety of a member , past member or a deceased member, whether such surety is or is not a member of the Society; or

(d) any other Society.

W.P.(C) No.31821 of 2021 Page 13 of 36

Explanation I - A claim in respect of any sum payable to or by a Society, by or to a person or Society mentioned in Clauses (a) to

(d), shall be a dispute touching the business of the Society within the meaning of this Section, even in case such claim is admitted and the only points at issue are the ability to pay and the manner of enforcement of payment.

Explanation II - A claim by a Financing Bank against a member of a Society which is a member of the Financing Bank and indebted to it for the recovery of dues payable by such member to the Society shall be a dispute touching the business of the Financing Bank within the meaning of this Section.

Explanation III - The question whether a person is or was a member of a Society or not shall be a dispute within the meaning of this Section.

Explanation IV - A claim by a surety for any sum or payment due to him from the principal borrower in respect of a loan advanced by a Society shall be a dispute within the meaning of this Section. Explanation V - The question whether a person or any one of his family members is carrying on any business prejudicial to the business or interests of the Society, or whether such family member has common economic interest with such person shall be a dispute within the meaning of this Section.] (2) Any person, Society, [or Financing Bank] referring a dispute to the Registrar under Sub-Section (1) shall deposit in advance such fees as may be prescribed.

W.P.(C) No.31821 of 2021 Page 14 of 36 (3) No dispute referred to in this Section shall be entertained in any Civil Court and decision of the Registrar in this respect shall, subject to the provisions of Section 70, be final.

(4) If any question arises whether a dispute referred to the Registrar under this Section is a dispute touching the constitution, management or the business of a Society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.

(5) Nothing in this Section shall, where the dispute relates to the recovery of the dues of any Society from any of its members be construed to debar any Financing Bank of such Society from referring such dispute to the Registrar."

Rejoinder

5) That the petitioner asserting that the stand of Bank Authorities misguiding, submitted his rejoinder affidavit. In which, it is submitted that the allegations of the Opposite Party-Bank which are basically narration of factual aspects of events.

Additional affidavit by the Opposite Party-Bank

6) The Bank authorities also filed an Additional Affidavit on 20.08.2023 to strengthen their argument with respect to jurisdiction of this writ court to entertain the grievance of the petitioner as the Bank being a Cooperative Society and registered under the Odisha Cooperative Societies Act, 1962 does not qualify as an "authority" within the meaning of Article 12 of the Constitution of India. For which, the grievance of the W.P.(C) No.31821 of 2021 Page 15 of 36 petitioner is not amenable for redressal by this Court in exercise of its writ jurisdiction. Simultaneously it has been clarified that the criminal case instituted against the petitioner vide Vigilance P.S. Case No.46 of 2011 is still pending so also the Departmental Proceedings and only on conclusion of such proceedings the financial liability of the petitioner on account of his pending dues as well as actual loss caused to the Bank due to the act or omission on the part of the petitioner in terms of Rule 32 of the Rules, 2003 of the Opposite Party-Bank can be quantified. Only on such quantification amount towards petitioner‟s leave salary encashment can be disbursed.

From the aforesaid stand of the parties, the following issues emerge for adjudication:

Issues A. Whether the present writ petition is maintainable against the Opposite Party-Co-Operative Bank ?

B. Whether the writ petition is maintainable in view of availability of alternative remedial forum under Section 68 of Orissa Cooperative Societies Act, 1962 ?

C. In case the writ petition is held to be maintainable, whether the impugned order is sustainable and whether the Bank can deny the benefits of leave encashment to the petitioner, on the ground W.P.(C) No.31821 of 2021 Page 16 of 36 of non-settlement of his dues when admittedly the petitioner has retired and under Rule 39 (e) read with Rule 48 of the Rules, 2003 there is no provision to deny such benefit and in the absence of any provision in the Service Rules governing the field authorising continuance of departmental proceeding against an employee after his retirement.

7. Learned counsel Sri Samal for the Petitioner and Sri Kanungo have relied upon several decisions to fortify their respective stands regarding maintainability of the present writ petition when it is a claim with respect to an employee of a Cooperative Bank, particularly, since the relief claimed in the present case relates to post retiral claim of the petitioner in the shape of encashment of unutilized leave salary.

7.1 It needs no emphasis that as such language of Article 226 does not admit of any limitation on the extraordinary powers of the High Court reinforced by judicial pronouncement.

7.2. In this context it would be apt to note a few landmark judgments of the Apex Court.

Rohtas Industries Ltd., & Anr. vs. Rohtas Industries Staff Union & Ors. [(1976) 2 SCC 82] it was submitted before the Constitution Bench W.P.(C) No.31821 of 2021 Page 17 of 36 that an award under Section 10A of the Industrial Disputes Act, 1947 was not amenable to correction under Article 226 of the Constitution. The Apex Court held as under:

"The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to any person by the expressive reference to one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop".

The Hon‟ble Apex Court has spelt out wise extraordinary remedy and High Courts will not go beyond those monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. Accordingly Apex court hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash."

Apex court also relied upon another verdict "Article 226 under which a writ of certiorari can be used in an appropriate case, is, in a sense, wider than Article 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued courts or tribunals. Under Article 226(1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore, even if the arbitrator appointed under Section 10A is not a tribunal under Article 136 in a proper cases.' a writ may lie against his award' under Article 226".

W.P.(C) No.31821 of 2021 Page 18 of 36 7.3 In Andi Mukta S.M.V.S.V.J.M.S. Trust & Ors. v. V.R. Rudani & Ors. [(1989) 2 SCC 691] a two Judge Bench of Apex Court was considering the question of "issue of a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or direction or order"

directing the appellant Trust and its trustees to pay to the respondents their due salary and allowances etc. in accordance with the Rules framed by the University and to pay them compensation under certain Ordinance of the University".

The High Court before which the issue was raised held in favour of the respondents. Apex Court noted that the essence of the attack on the maintainability of the writ petition under Article 226 by the appellant was that it being a trust registered under the Bombay Public Trust Act was managing the college where the respondents were employed, was not amenable to writ jurisdiction of the High Court. In other words, the contention was that trust being a private institution no writ of mandamus could be issued. In support of such contention, reliance was placed on the decisions in (i) Executive Committee of Vaish Degree College Shamli & Ors. v. Lakshmi Narain & Ors. (1976) 2 SCC 58 and (ii) Deepak Kumar Biswas vs. Director of Public Instruction [(1987) 2 SCC 252]. W.P.(C) No.31821 of 2021 Page 19 of 36

Apex Court, however distinguished those two decisions and held that the facts before it were different and that there was no plea for specific performance of contractual service by the Respondents. And, before the Hon‟ble Supreme Court, they were not seeking a declaration that they be continued in service and they were not asking for mandamus to put them back into the college. But claiming only the terminal benefits and arrears of salary payable to them and framed the question as to whether the trust could be compelled to pay by writ of mandamus?

The Apex Court noted the observations of Hon‟ble Subba Rao, J. in Dwarkanath, H.U.E. vs. ITO, Special Circle Kappur & Anr. [(1965) 3 SCR 536] as under :

"This article is couched in comprehensive phraseology and it ex- facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over W.P.(C) No.31821 of 2021 Page 20 of 36 the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself..........."

The Court also noted the following observations in Praga Tools Corporation vs. Shri C.A. Imanual & others [(1969) 1 SCC 585]:

"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statutes under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (Cf. Halsbury's Laws of England, 3rd Edn., Vol. II, p. 52 and onwards).

The analysis of the Hon‟ble Supreme Court regarding "authority" in Article 226 of the Constitution of India is respectfully quoted hereunder:

"The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights as well as non-fundamental rights. The words "any person or authority used in Article 226 are, therefore, used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."

W.P.(C) No.31821 of 2021 Page 21 of 36

And finally the Apex Court held as under :

"Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226.We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." (Emphasised) 7.4 In Air India Statutory Corporation and others vs. United Labour Union and others (1997) 9 SCC 377 Apex Court Speaking through a Bench of three Hon‟ble Judges held :

"The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and "for any other purpose". The distinction between public law and private law remedy by judicial adjudication gradually marginalised and became obliterated. In LIC vs. Escorts Ltd. [(1986) 1SCC 264 at 344], this Court in paragraph 102 had pointed out that the difficulty will lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the for accepting W.P.(C) No.31821 of 2021 Page 22 of 36 the purchase of the shares? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the State's power as economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the state engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta & Ors. vs. Union of India & Ors. [(1987) 1 SCC 395]".

7.5 A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another vs. N. Seetharama Raju [AIR 1990 A.P. 171] was considering the question whether a writ petition even lie against a cooperative society and if it does, under what circumstances. After examining various decisions and treatises on the subject it was held that even if a society could not be characterised as a 'State' within the meaning of Article 12 of the Constitution even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a 'person', or an 'authority', within the meaning of Article 226 of the Constitution. What is material is the nature of the W.P.(C) No.31821 of 2021 Page 23 of 36 statutory duty placed upon it, and the Court is to enforce such statutory public duty.

7.6 In the case of U.P.State Co-operative Land Development Bank Ltd. vs. Chandra Bhan Dubey and Ors. 1999(1) SCC 741 wherein the writ petition was held to be maintainable principally on the ground that it had been created under the Act. The relevant extract of the said judgment is quoted hereunder :-

"In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and W.P.(C) No.31821 of 2021 Page 24 of 36 modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporation or not. Constitution in not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial 'bull in china shop' in the exercise of its jurisdiction under Article 226."

7.7 In Ram Sahan Rai vs. Sachiv Samanaya Prabandhak & Anr., (2001) 3 SCC 323, wherein the appellant was recruited by a Society constituted under the U.P. Cooperative Land Development, the status of the said bank is no doubt of a Co-operative Society, registered under the U.P. Co- operative Societies Act, 1965 and was constituted under the U.P. Co- W.P.(C) No.31821 of 2021 Page 25 of 36 operative Land Development Bank Act, 1964. But on examination of different provisions of the Rules, By-laws and Regulations, the Apex Court held that it unequivocally indicates that the State Government exercises all-pervasive control over the bank and its employees and the service conditions of such employees are governed by statutory rules, prescribing entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges and culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show cause and an opportunity of hearing to the delinquent. Apex Court thus held that the Cooperative society was a held to be established under a statute and is amenable to Article 226 of the Constitution of India. 7.8 In Nayagarh Cooperative Central Bank Ltd. & Anr. vs. Narayan Rath & Anr., (1977) 3 SCC 576, relied upon by Opp. Party Bank, the Apex Court did not decide the question as to whether a writ petition could be maintained against a Cooperative Society. The Apex Court observed that such a decision was not strictly in accordance with the other decision of the Hon‟ble Supreme Court and proceeded to hold that since in the given case, order passed by the Registrar was in purported exercise of powers conferred on him, the writ petition is maintainable.

8. In the instant case, as noticed above, the Registrar has not passed the impugned orders acting as a statutory authority in purported exercise W.P.(C) No.31821 of 2021 Page 26 of 36 of powers conferred on him by the Act or the Rules framed there under but such order has been passed by virtue of his having been named an authority to hear and decide appeals in the Service Regulations framed under the By-laws which have no force of law. As such the same cannot be held to be in exercise of statutory power but on account of the By-laws. 8.1. This question, essentially, touches upon the scope of power of the High Courts to issue certain writs as predicated in Article 226 of the Constitution of India.

It is well established position that the power of the High Courts under Article 226 is as wide as the amplitude of the language used therein, which can affect any person - even a private individual - and be available for any other purpose - even one for which another remedy may exist (Ref: Rohtas Industries Ltd. (Supra)).

In the case of Praga Tools Corporation (supra), the Apex Court held that it was not necessary that the person or the Authority on whom the statutory duty is imposed need be a public official or an official body. And, that a mandamus can be issued even to an official or a Society to compel him to carry out the terms of the statute under or by which the Society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. Further, a mandamus would lie against a company W.P.(C) No.31821 of 2021 Page 27 of 36 constituted by a statute for the purposes of fulfilling public responsibilities. While interpreting the amplitude of the term "Authority" used in Article 226 of the Constitution of India, the Apex Court observed that the words "any person or authority" used in Article 226 cannot be confined only to statutory authorities or state instrumentalities but will also cover any other person or body performing public duty irrespective of the form of body concerned.

9. Taking note of the judicial pronouncement as above this court is of the considered view that the present issue relates to a claim of terminal/ retirement benefit and not relating to employment or restoration of employment. The claim is also admittedly a constitutional right of a retired employee being protected under Article 300-A of Constitution of India as a right to property. As such after a clear denial of such benefit by the Opp. Parties in terms of the order passed by this Court in W.P.(C) No.10140 of 2021 without raising any issue of competence of this Court to pass such order, it is no longer open to the opp. Parties to raise the issue of maintainability of the writ petition.

Going by principle decided in Praga Tools Corporation (Supra), where the Apex Court held that it was not necessary that the person or the Authority on whom the statutory duty is imposed need be a public official or an official body rather a mandamus can be issued even to an official or W.P.(C) No.31821 of 2021 Page 28 of 36 a Society to compel him to carry out the terms of the statute under or by which the Society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings; this court is of the considered view that the present writ petition is maintainable confining the scope of interference only with respect to claim of the petitioner to retirement benefit such as encashment of unutilized leave salary which according to the decision of Hon‟ble Apex court is a constitutional right of a retired employee.

The Issue „A‟ with respect to maintainability of the writ petition is thus answered in favour of the petitioner.

10. Next issue relates to the maintainability of the writ petition vis-à-vis availability of alternative remedy. Law is no more res integra that there is and cannot be any absolute bar on this Court from entertaining writ petition under Article 226 of the Constitution of India.

Admittedly the petitioner has retired since 2019 and the claim is relating to retiral benefits i.e. encashment of unutilised leave salary, which is protected under Rule 39 (e) of the Rules, 2003 of the Opposite party- Bank, which has been denied by the Bank, in absence of any statutory provision is per se impermissible.

In this factual backdrop of the case at hand this Court is inclined to entertain the writ petition. Issue „B‟ is answered accordingly. W.P.(C) No.31821 of 2021 Page 29 of 36

11. Next issue is whether the impugned order is sustainable and whether the Bank can deny the benefits of leave encashment to the petitioner, on the ground of non-settlement of his dues when admittedly the petitioner has retired and under Rule 39 (e) read with Rule 48 of the Staff Service Rules of the Urban Cooperative Bank Ltd., 2003 there is no provision to deny such benefit and in the absence of any provision in the Service Rules governing the field authorising continuance of departmental proceeding against an employee after his retirement.

12. In the case of State of Jharkhand & Ors vs Jitendra Kumar Srivastava & Anr reported in AIR 2013 SC 3383, the Apex Court held that the antiquated notion of pension being a bounty, a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been set at rest by the decision of the Constitution Bench decision of the Apex Court in Deoki Nandan Prasad v. State of Bihar and Ors. AIR 1971SC1409 wherein it was held that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension.

12A. It was further decided that the grant of pension does not depend upon any one‟s discretion. It is only for the purpose of quantifying the W.P.(C) No.31821 of 2021 Page 30 of 36 amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules.

It is a hard-earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India. Article 300-A of the Constitution of India reads as under:-

"300-A. Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law."

12B. Apex Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. reported in AIR 1968 SC 1053 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. The Apex Court held that it was property, observing "it is obvious that a right to sum of money is property".

12C. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, Apex Court recognized that even after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty- W.P.(C) No.31821 of 2021 Page 31 of 36 Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Apex Court held that a person cannot be deprived of 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.

12D. There is no cavil that the claim of encashment of unutilised leave salary qua the Petitioner is governed by Rule 39(e) and Rule 48 of the Staff Service Rules of the Urban Cooperative Bank Ltd, 2003.

Rule 39(e) and Rule 48 of the Staff Service Rules of the Urban Cooperative Bank Ltd, 2003 are quoted hereunder for ready reference:

"39. RETIREMENT/ TERMINATION OF SERVICE:

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) xxx xxx xxx

(e) An employee of the Bank shall be entitled to encash the leave at his credit at the time of retirement subject to maximum of 300 days.

              xxx                       xxx                  xxx


W.P.(C) No.31821 of 2021                                            Page 32 of 36
               48. SURRENDER LEAVE (ENCASHMENT OF
              EARNED LEAVE):

(i) An employee of the Bank shall be allowed to encash a portion of his/her Earned Leave subject to the extent of conditions specified below once within the block period of two years commencing from 1st April as per programme drawn by the sanctioning authority.

(ii) An employee who has got at least 120 days Earned Leave to his/her credit may be allowed to surrender Earned Leave upto a maximum of 30 days in lieu of leave salary and allowances for the period of leave surrendered.

(iii) The leave salary and allowances admissible for the leave surrendered shall be equal to that which the employee would have received had he actually availed of the leave surrendered.

(iv) The leave salary and allowances admissible for the leave surrendered shall not liable to be any deduction on account of Provident Fund subscription, insurance premium, house rent, payment of advance etc. but shall be liable to deduction of income tax, in the income in the hands of employee is assessable to such tax."

13. From a conjoint reading of Rule 39(e) and Rule 48 of the Rules, 2003, as quoted above it is clear that the petitioner is entitled to encash the leave subject to maximum of a 300 days at the time of his retirement and as per Rule 48(iv) only Income Tax can be deducted from leave salary encashment value and such amount shall not be liable for any other deduction on account of provident fund subscription, Insurance Premium, House Rent, Payment of Advance etc. W.P.(C) No.31821 of 2021 Page 33 of 36

14. The claim of the petitioner that he has 300 days of leave to his credit at the time of his retirement amounting to Rs.7,10,350/- has not been disputed by the Opposite parties.

15. It settled law that leave encashment is a legal right of an employee akin to salary and cannot be denied in absence of any legal provision justifying such denial. If any employee has chosen to accumulate his earned leave to his credit, then encashment becomes his right. There is no doubt that any financial benefit accrued within the tenure of service career or after retirement can only be denied as per the rules and regulations in vogue.

No such authority in the Staff Service Rules justifying denial of leave encashment benefits has been pressed into service by the opposite party Bank.

16. As is evident from the impugned order at Annexure-9 the encashment of unutilized leave salary has been denied, in contemplation of disciplinary proceeding on the basis of a report dated 03.03.2012 received in connection with Cuttack Vigilance Case No.46 of 2011 and the stand of the Opposite party Bank that criminal case instituted against the petitioner vide Vigilance P.S. Case No.46 of 2011 is still pending so also the Departmental Proceedings. And that only on conclusion of such proceedings the financial liability of the petitioner on account of his W.P.(C) No.31821 of 2021 Page 34 of 36 pending dues as well as actual loss caused to the Bank due to the act or omission on the part of the petitioner in terms of Rule 32 of the Rules, 2003 of the Opposite Party-Bank can be quantified, and till then the benefit of leave encashment under Rule 39 (e) cannot be extended.

This Court finds that Staff Service Rule, 2003 do not envisage continuance of disciplinary proceedings if already initiated against an employee before his retirement to continue post retirement or to initiate any proceeding after his retirement.

When admittedly Rule 39(e) and Rule 48 of the Rules, 2003 do not empower the Opposite party Bank to deny such benefit on account of non- settlement of other dues/financial liability, the unutilized encashment of leave salary admissible to an employee on his retirement cannot be encumbered by the authorities for adjustment of any other liability. This Court finds force in the submission of the learned counsel, Mr. Samal, for the Petitioner that under no circumstances the liability of the petitioner to pay any amount can have any bearing on the encashment of leave salary of the petitioner after his retirement more so in view of Rule 39(e) read with Rule 48(iv) of the Rules, 2003.

17. In view of the discussion in the preceding paragraph, this court is of the considered view that the petitioner is entitled to succeed in this W.P.(C), as the right of encashment of leave salary could not have been W.P.(C) No.31821 of 2021 Page 35 of 36 rejected by the Bank and is thus persuaded to hold that Annexure-9 to the writ petition is not sustainable in the eye of law and liable to be quashed. Issue „C‟ is thus answered.

Consequentially, keeping in view that there is no provision in the staff service Rule to initiate or to continue any disciplinary proceeding against its employee after retirement so also the above discussed settled position of law, the Opposite Party Nos.2 and 3 are directed to pay to the petitioner an amount of Rs.7,10,350/- with interest @ 7% per annum w.e.f. 01.09.2019, towards his leave salary benefit, in terms of Rule 39(e) of the Staff Service Rules of the Urban Cooperative Bank Ltd., 2003 within a period of three months of the date of receipt/production of a copy of this Judgment.

(V. Narasingh) Judge Orissa High Court, Cuttack, Dated the 4th November, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 18-Nov-2024 20:46:57 W.P.(C) No.31821 of 2021 Page 36 of 36

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