Bombay High Court
Suresh Arvind Shephard vs Maharashtra State Electricity ... on 26 September, 2016
Bench: R.V. Ghuge
*1* 20.wp.9636.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9636 OF 2015
Suresh Arvind Shephard,
Age : 65 years, Occupation : Retired,
R/o Meharabad,
Tal. & Dist.Ahmednagar.
...PETITIONER
-VERSUS-
Maharashtra State Electricity
Distribution Company Limited,
Shahar/ Gramin Vibhag,
Station Road, Ahmednagar.
Through its Executive Engineer.
...RESPONDENT
...
Advocate for Petitioner : Shri Barde Parag Vijay.
Advocate for Respondent : Shri Malte Uday S..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th September, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner/ Employee is aggrieved by the judgment dated
02.04.2015 by which the Labour Court has dismissed Application (IDA)
*2* 20.wp.9636.15
No.2/2012 filed by him under Section 33C(2) and (3) of the Industrial
Disputes Act, 1947.
3 I have heard the strenuous submissions of Shri Barde and Shri
Malte, learned Advocates for the Petitioner and the Respondent,
respectively.
4 There is no dispute in between the parties on the following
aspects:-
(a) On 17.10.2006, the Petitioner was discharging his duties as a
Driver and met with an accident.
(b) Since he was unable to resume duties, he availed 352 days
leave.
(c) The Respondent paid Rs.1,33,062/- towards Disablement
Leave Salary for 352 days.
(d) The above said payment was made under the Service
Regulation 50 and Rule A(vii) (a) and (b) under the 17 th
Schedule of the MSEDCL Employees Service Regulations,
2005.
(e) The Petitioner filed Application W.C. No.61/2009 before the
Labour Court which is the ex-officio Compensation Court and
by judgment dated 05.02.2011, the Petitioner was granted
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Rs.2,70,796/- (Rs.1,62,672/- as compensation amount with
interest).
(f) Though the Respondent had deposited Rs.1,30,000/- before
the Labour Court, it imposed interest at the rate of 18% per
annum on the entire amount of Rs.1,62,672/- and that is how
the Respondent paid Rs.2,70,796/- to the Petitioner.
(g) The Petitioner attained the age of superannuation and retired
from service on 31.12.2008.
(h) The Respondent/ Employer calculated his retirement benefits
and after adjusting Rs.1,33,062/-, granted him the remaining
amount.
5 Shri Barde has strenuously contended that the Respondent/
Employer is erroneously placing the case of the Petitioner under Rule
A(viii) falling in the 17th Schedule. It is a right of the workman to such
leave encashment. The period of recuperation cannot be at the costs of an
injured employee. He was entitled to Rs.1,33,062/- towards the
disablement leave payment for 352 days and as such, the Labour Court,
without proper application of mind, has considered the case of the
Petitioner differently and has wrongly rejected the application. In the
alternative, he prays for remand to the Labour Court for a rehearing of the
application.
*4* 20.wp.9636.15
6 Shri Malte points out that under Rule A(vii), sub clause (a)
would indicate that leave salary payment towards disablement leave is to
be calculated on the basis of full day wages for the first four months
period of such special leave and average pay has to be drawn while
making such payment. Under sub-clause (b) any period beyond the first
four months is to be calculated at the half average pay. The Respondent
has erroneously calculated special leave payment for the entire 352 days
by inadvertently ignoring sub-clause (b) or losing sight of sub-clause (b).
7 He further submits that while calculating the retiral benefits
of the Petitioner, the payment that the Petitioner received under the
Workmen's Compensation Act (presently the Employees Compensation
Act), was set off against the legal dues payable in the light of Rule A(viii).
While doing so, the Management again had lost sight of Rule A(vii)(b) by
which the amount beyond four months should have been reduced to half.
He submits that despite the same, the Management has not recovered that
excess amount from the Petitioner. He, therefore, prays for the dismissal of
the petition.
8 I find from the submissions of the learned Advocates and the
record available that Rule A(vii) coupled with Rule A(viii) have not been
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challenged by any employee before any Court. For the sake of clarity, Rule
(A) falling in the 17th Schedule of the MSEDCL Employees Service
Regulations, 2005 is reproduced as under:-
"A. i) Subject to the condition here in specified, the
Company may grant special disability leave to the
Company employee, [including Veej Sevak
appointed under G.O.162(P) dated 15.03.2005]
whether permanent or temporary who is disabled
by injury intentionally inflicted or caused in, or in
consequences of, due to performance of his official
duties or in consequence of his official duties.
ii) Such leave shall not be granted unless the disability
manifested itself within 3 months of the occurrence
to which it is attributed and the person disabled
acted with due promptitude in bringing it to notice.
But the Company may, if satisfied as to the cause of
the disability, permit leave to be granted in case
where the disability is manifested itself more than
three months after the occurrence of its cause.
iii) The period of leave granted shall be such as it
certified by the Medical Officer of the Company's
Establishment or by the Civil Surgeon or
Government Hospital Authorities or by the Private
Registered Medical Practitioner in which case the
certificate should be countersigned by the
Government Hospital Authorities. It shall not be
extended except on the certificate of the appropriate
authorities and shall in no case exceed Twenty four
months.
iv) Such leave may be combined with the leave of any
other kind.
v) Such leave may be granted more than once if the
disability is aggravated or reproduced in similar
circumstances at a later date but not more than
Twenty four months of such leave shall be granted
in consequence of any one disability.
vi) Such leave shall be counted as duty for calculating
service for pension, gratuity and the Company's
share of C.P.F. and shall not except, half the period
*6* 20.wp.9636.15
of leave on half average pay (other than Special
Disability Leave) or on quarter average pay or of
Special Disability leave on average pay, be debited
against the leave account.
vii) The leave salary during the Special Leave shall be
equal to:
a) for the first four months of any period of
Special Leave including a period of such leave
granted under clause (v) of this rule to average
pay; and
b) for the remaining period of any such leave
on half average pay or at the Company employee's
option for a period not exceeding the period of
average pay which should otherwise be admissible
to him to average pay.
viii) In the case of person to whom the Workmen's
Compensation Act, 1923 and the Employees' State
Insurance Act, 1948 apply, the amount payable
under these rules shall be reduced by the amount of
compensation payable under Section 4(i)(d) of the
Workmen's Compensation Act and the amount of
sickness benefit payable under Section 49 of the
Employees' State Insurance Act.
ix) Provisions of this rule apply to:
a) the Company employees disabled in
consequences of the service with military force, if he
is discharged as unfit for further military service
but he is not completely and permanently
incapacitated for further Company's service and
b) a Company employee, not so discharged,
who suffers a disability which is certified by the
Medical Officer of the Company's Establishment or
by the Civil Surgeon or Government Hospital
Authorities or by Private Registered Medical
Practitioner (in which case the certificate should be
countersigned by the Civil Surgeon or the
Government Medical Authorities) to be directly
attributable to his service with a military force.
But in either case, any period of leave granted to
such person under Military Rules in respect of that
disability shall be reckoned as leave granted under
this rule for the purpose of calculating the period
*7* 20.wp.9636.15
admissible."
9 As recorded above, there is no dispute that leave salary for
special leave for the first four months is full wages based on average pay
per day. For the rest of the period, it has to be half average pay. As such,
the Petitioner would have been entitled for full average pay for the first
120 days. For the remaining 232 days, he would have been entitled for
half average pay. Despite this fact, the Respondent has paid full average
pay for the entire 352 days. Considering the fact that the amount has
already been paid, though by oversight or inadvertence, now that the
Petitioner has superannuated, there is no question of the Respondent
recovering that amount from the Petitioner. (see Syed Abdul Qadir vs. State
of Bihar, (2009) 3 SCC 475 and the State of Punjab vs. Rafiq Masih (White
Washer), (2015) 4 SCC 334).
10 The issue, therefore, is as regards interpretation of Rule A(vii)
and Rule A(viii). The said Rules are in existence from 2005. Rule A(vii)
under it's sub-clauses (a) and (b) permits the payment of special leave pay
and Rule A(viii) entitles the Respondent to set off the special leave salary
pay as against compensation which an employee may have acquired under
the Workmen's Compensation Act or under the Employees' State Insurance
Act.
*8* 20.wp.9636.15
11 While considering retiral benefits, the Respondent kept in
view the amount of Rs.2,70,796/- that was paid to the Petitioner and
hence, adjusted the amount of Rs.1,33,062/- in the light of Rule A(viii).
12 In the light of the above, though I find that the Labour Court
may not have dealt with Rule A(viii) in the manner in which it has been
considered by this Court, yet the conclusions arrived at by the Labour
Court cannot be faulted because Rule A(viii) was referred to by the Labour
Court and the conclusions, therefore, cannot be said to be erroneous.
13 As such, I do not find that the impugned judgment of the
Labour Court could be termed as being perverse or erroneous. This Writ
Petition being devoid of merit is, therefore, dismissed. Rule is discharged.
kps (RAVINDRA V. GHUGE, J.)
