Karnataka High Court
The General Manager vs H C Jayaprakash on 19 February, 2020
Author: Ravi Malimath
Bench: Ravi Malimath
1 ®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 19TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
WRIT APPEAL No.267 OF 2017(L-RES)
BETWEEN:
THE GENERAL MANAGER
VIJAYA BANK
HEAD OFFICE, NO.41/2
M.G. ROAD
BENGALURU - 560 001
NOW REPRESENTED BY
SENIOR MANAGER
... APPELLANT
(BY SRI.PRADEEP S. SAWKAR, ADVOCATE)
AND:
H.C. JAYAPRAKASH
SON OF LATE H.C.M. GIRI RAO
AGED ABOUT 64 YEARS
RESIDING AT "GIRIDHAMA"
NO.239/1, SHARANAPPA LAYOUT
TIPTUR - 527 201
... RESPONDENT
(BY SRI.K.B. NARAYANA SWAMY, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT PRAYING TO
2
SET ASIDE THE ORDER DATED 03.11.2016 PASSED BY
THE LEARNED SINGLE JUDGE IN WRIT PETITION
NO.12961 OF 2015(L-RES) AND CONSEQUENTLY
DISMISS THE WRIT PETITION WITH COSTS.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED ON 20.01.2020 FOR JUDGMENT AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, M.I.ARUN J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order dated 03.11.2016 passed by the learned Single Judge in writ petition No.12961 of 2015 in allowing the writ petition and setting aside the impugned order, the respondent therein has filed this appeal.
2. The brief facts of the case are that the respondent herein was removed from service by the appellant. A dispute was raised and it was held that his removal is illegal and void-ab-initio. As a consequence, the appellant was directed to reinstate the respondent into service with full back wages and consequential benefits. The same was confirmed by this Hon'ble Court in writ petition No.11437 of 2007 and writ appeal No.1897 of 2011. However, the back 3 wages were reduced to 60% only on the ground that there would be excessive financial burden on the appellant and not because any allegations were proved against the respondent.
3. Pursuant to the orders referred above, the back wages and certain consequential benefits have been paid to the respondent herein. However, the appellant did not permit the respondent to encash 240 days of earned leave. Hence, the respondent filed an application before Central Government Industrial Tribunal -cum- Labour Court under Section 33C(2) of the Industrial Disputes Act, 1947. The Tribunal held that the respondent is not entitled to encashment of 240 days of earned leave. Hence, the respondent herein filed the instant writ petition No.12961 of 2015. The learned Single Judge found that the petitioner was entitled to 60% of backwages along with all consequential benefits. The employee was found not guilty of any of the charges alleged against him. Thus, the learned Single Judge concluded that the impugned order passed by the Tribunal is perverse and illegal and 4 consequently allowed the writ petition and held that the respondent herein is entitled to encashment of earned leave. However, the learned Single Judge did not examine whether earned leave is part of the consequential benefits or not. Aggrieved by the said order, the respondent therein is in appeal.
4. The only issue which arises for consideration in this case is whether earned leave is part of the consequential benefits or not.
5. To prove their case, the learned counsel for the appellant has relied upon the decision of the Apex Court in Dilbagh Rai Jerry vs. Union of India and Others reported in AIR 1974 SC 130, the decision of the Full Bench of the High Court of Andhra Pradesh in Andhra Bank and Another vs. P.Balakrishna (dead) by LRs and Others reported in 2005 III LLJ 891 and the decision of this Court in K.R.Tyagi vs. National Textile Corporation and another in writ petition No.735 of 1989.
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6. The learned counsel for the respondent has relied upon decision of the Hon'ble Supreme Court in Commissioner, Karnataka Housing Board vs. C.Muddaiah reported in (2007) 7 SCC 689, the decision of the High Court of Allahabad in HN Jain vs. National Textile Corporation Ltd., reported in LAWS (ALL) 2004 2 77 and the decision of this Court in Writ Appeal No.9185 of 1996 between K.R.Tyagi vs. National Textile Corporation and another.
7. In the case of Dilbagh Rai Jerry vs. Union of India and Others reported in AIR 1974 SC 130, the Apex Court while examining whether reinstated employee in the railways is entitled to the running allowance held at paragraph 23 as follows:-
"23. xxxxxxxxxxxxxxxxxxxxxxxxxxxxx The crucial words, which have been underlined, show that such Running Allowance is counted towards 'average pay' in those cases only where the leave does not exceed one month. It cannot, therefore, be said that Running Allowance was due to the appellant as part of his wages for the entire 6 period of his inactive service. Travelling allowance or running allowance is eligible if the officer has traveled or run, not otherwise. We therefore negative this contention."
8. In the case of Commissioner, Karnataka Housing Board vs. C.Muddaiah, reported in (2007) 7 SCC 689, the Apex Court while considering the entitlement of a dismissed employee who was reinstated with consequential benefits held at paragraph 34 as under:
"34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction 7 of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."
9. The proposition of law that has been laid down by the Hon'ble Supreme Court by referring to the above cases can be summed up as that an employee if reinstated with consequential benefits would be entitled to all such benefits that he would have got if he had worked in the normal course. But, he is not entitled to those allowances which would accrue only if he worked in the conditions entitling him to draw the allowances.
10. Both the cases of the Apex Court held above, do not pertain to earned leave. The Full Bench of the High Court of Andhra Pradesh in the case of Andhra Bank and Another vs. P.Balakrishna (dead) by 8 LRs and Others reported in 2005 III LLJ 891 has specifically held that earned leave is not a consequential benefit and workmen has to render active service and thereby earn privilege leave to his credit. It has observed that "after going through various settlements of memoranda between the workmen and the employer, we are in no doubt to conclude that the privilege is intended for rest and recuperation and the workman has to render active service and thereby earn privilege leave to his credit. A workmen out of service for any reason whatsoever is not entitled to privilege leave."
11. Similarly, this Court in writ petition No.735 of 1989 has held that earned leave is not salary and the petitioner is not entitled to the same when he was not working. It has observed "earned leave cannot have been earned as a matter of right, but by actual working". In appeal in W.A.No.9185 of 1996, the Division Bench of this Court did not reverse any of the propositions of law laid down by the learned Single 9 Judge, but on facts found that the appellant therein had indeed worked and was entitled to 80 days of earned leave and granted the same to him. It does not amount to directing the employer to pay earned leave as part of consequential benefits.
12. However, the High Court of Allahabad in the case of HN Jain vs. National Textile Corporation Ltd., reported in LAWS (ALL) 2004 2 77 has held at paragraph 17 as follows:
"17. xxxxxxxxxxxxxxxxxxxxxxxxxxxx The earned leave becomes admissible in case the person is in service on duty. In this case, the petitioner could not work due to the fault of the corporation. And once the order is quashed, he is treated to be on duty and in service: he is also entitled for earned leave. xxxxxxxxxxxxxxxxxxxxxxxx."
13. We are persuaded by the reasoning of the Full Bench of the Andhra Pradesh High Court in the case of Andhra Bank and Another vs. P.Balakrishna (dead) by LRs and Others, reported in 2005 III LLJ 891 10 and this Court in W.P.No.735 of 1989 while considering the earned leave. As laid down by the Apex Court in cases discussed above, the test while determining the consequential benefit can be summed up as under:
a) Whether the person was willing to work and was illegally and unlawfully not allowed to do so,
b) Whether the person so willing to work would be entitled to the said benefits in normal course of his employment without being required to work under special conditions entitling him to those allowances.
14. Earned leave is a privilege a workman would be entitled to only by actual working and it cannot be earned as a matter of right even if he did not work. Even if he were to be in employment, he becomes entitled to it only if he works and earns it, otherwise not. It is similar to night shift or traveling allowance which accrue only if the person decides to work. If he does not work, in that event, he is not entitled to it. 11 Hence, earned leave unless the relevant regulations expressly specifies otherwise cannot be considered as part of consequential benefits.
15. For the aforementioned reasons, the writ appeal is hereby allowed. The impugned order dated 03.11.2016 passed by the learned Single Judge in W.P.No.12961 of 2015 is set aside. Consequently, the writ petition is hereby dismissed.
No order as to cost.
Sd/-
JUDGE Sd/-
JUDGE MH/-