Suresh L Tekwani vs Union Of India Thr. Sec. Ministry ...
2023 Latest Caselaw 1911 Bom

                     Megha                                      53_wp_ 14076_2022.doc



                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO.14076 OF 2022

                     Suresh L. Tekwani                                           ...Petitioner


                     Union of India through Secretary, Ministry
                     of Finance, Department of Revenue and
                     Ors.                                              ...Respondents
                                                        ...
                     Mr. Rajeev N. Kumar for the Petitioner.
                     Mr. Ashok D. Shetty with Mr. D.A. Dube for the Respondents.


                                                CORAM: S.V. GANGAPURWALA, ACJ &
                                                       SANDEEP V. MARNE, J.

DATED: FEBRUARY 27, 2023.

P. C. :-

1. Rule. Rule is made returnable forthwith. With consent of

the parties, matter is taken up for final hearing.

2. The Petitioner has filed original application before the

Central Administrative Tribunal claiming release of leave salary

encashment as per the accumulated earned leave at the time of

superannuation. He also claimed interest on the leave salary

encashment. The Tribunal, under its judgment granted interest on the

amount of leave encashment @ 7% from 01/02/2018 till the actual

MEGHA Digitally signed by MEGHA S date of payment.

        PARAB
S       Date:
PARAB   2023.03.02
        10:54:06
        +0530

 Megha                                    53_wp_ 14076_2022.doc

3. According to the learned counsel for the Petitioner, the

Petitioner would be entitled for interest from 01/12/2011, the

Petitioner having attained the age of superannuation on 30/11/2011.

Learned counsel submits that the Respondent has to grant benefit of

leave salary encashment suo moto. Reliance is placed on Rule 39(2)(a)

of Central Civil Services (Leave) Rules, 1972. Learned counsel further

submits that the Tribunal ought to have granted interest from

01/12/2011 and @ 8% per annum, which is the rate of interest

payable on the gratuity amount.

4. Learned counsel for the Respondents submits that the

Petitioner for the first time made an application in the year 2017 for

the grant of leave salary encashment. As such, the Petitioner is not

entitled for interest prior to the date of the application. Learned

counsel further contends that two criminal cases are pending against

the Petitioner (i) of disproportionate assets (ii) complaint by another

private party. The Vigilance Department gave its clearance only in the

year 2018 and immediately the amount was paid to the Petitioner.

There is no delay on the part of the Respondents in paying the amount.

According to the learned counsel there is no provision for grant of

Megha 53_wp_ 14076_2022.doc

interest on the amount of leave encashment. He submits that the

Petitioner is not entitled for the same. He further submits that the

Respondents are not guilty of deliberate or willful non-payment of

leave salary encashment.

5. We have considered the submissions. The Petitioner has

filed the original application and during the pendency of the original

application, the Respondents made payment of the amount towards

leave encashment on 19/01/2022 on receipt of Vigilance clearance in

the year 2018.

6. It is submitted that the Departmental Enquiry was pending

against the Petitioner on the same ground as the criminal case filed

against the Petitioner for disproportionate asset. It is submitted that in

the year 2022, 30% of the pension was directed to be deducted. The

Petitioner has filed original application and said order of 30%

deduction is stayed by the Tribunal.

7. Under Sub Rule 3 of Rule 39 of the CCS (Leave) Rules,

1972, the Authority competent to grant leave may withhold whole or

part of cash equivalent of earned leave in the case of a Government

Megha 53_wp_ 14076_2022.doc

servant who retires from service on attaining the age of retirement

while under suspension or while disciplinary or criminal proceedings

are pending against him, if in the view of such authority there is a

possibility of some money becoming recoverable from him on

conclusion of the proceedings against him. In that case on conclusion

of the proceedings he will become eligible to the amount so withheld

after adjustment of Government dues, if any.

8. In the present case, the Departmental Enquiry has not

resulted in any recovery from the Petitioner. The criminal cases filed

against him would also not result in any recovery.

9. In view of that Sub Rule (2)(a) of Rule 39 of CCS (Leave)

Rules, 1972 would apply. The Respondents were aware that there is no

possibility of money being recovered from him on conclusion of the

proceedings against him. In view of that the Respondents ought to

have suo moto made the payment. The vigilance department is also a

wing of the Respondents itself. There was no need to keep the decision

pending for 7 long years after the retirement of the Petitioner. Same

could have been concluded within reasonable time. The Petitioner has

attained the age of superannuation on 30/11/2011. Even assuming

Megha 53_wp_ 14076_2022.doc

one year is the reasonable period, the Petitioner would be entitled for

damages in the form of interest for depriving him from enjoying the

amount for such a long period. In the light of the above, order of the

Tribunal is modified.

10. The Respondents shall pay interest to the Petitioner on the

amount of leave salary encashment @ 7% (simple interest) from

01/01/2013 till the date of the payment of leave salary encashment.

11. Writ petition stands disposed of. Rule is accordingly made

absolute.

(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)