Calcutta High Court (Appellete Side)
Bengal vs Amalendu Bikas Mohapatra & Ors on 10 June, 2021
IN THE HIGH COURT AT CALCUTTA
(Appellate Side)
CONSTITUTIONAL WRIT JURISDICTION
W.P.S.T. 19 of 2020
Date of hearing:- 26.02.2021
Date of decision:-10.06.2021
The Principal Secretary, Department of Finance, Government of West
Bengal
...Petitioners
-versus-
Amalendu Bikas Mohapatra & Ors.
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL, CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE ANIRUDDHA ROY
Present:- Mr. Joytosh Majumder, Learned Government Pleader,
Mr. Pinaki Dhole, and
Ms. Kakali Samajpaty, Advocates
...for the petitioner
Mr. Amalendu Bikas Mahapatra
...for the respondent No.1
ORDER
Aniruddha Roy, J.:
1. The present writ petition has been filed by the State employer
challenging the order dated April 3, 2019 (for short, the impugned
order) passed by the West Bengal Administrative Tribunal, Kolkata
(for short, the Tribunal) in OA No. 1366 of 2014 (Amalendu Bikas
Mahapatra vs. The State of West Bengal & Ors) [for short, the
W.P.S.T. 19 of 2020
Original Application], whereunder, direction was made for revision of
the leave encashment of the first respondent in the manner stated
therein.
2. The first respondent was employed as Assistant Evaluation
Officer under the Administrative Control of Additional Director of
Agriculture (Evaluation), Directorate of Agriculture, West Bengal. He
superannuated on August 31, 2007. The first respondent had
received all his retirement benefits as well as pension as on the date
of his superannuation. Subsequently, the Revision of Pay and
Allowances Rules, 2009 (for short, ROPA 2009) came into force w.e.f.
January 1, 2006. According to the first respondent he had received
the revised pension payment order on May 3, 2011 for difference of
gratuity and Commuted Value of Pension. The grievance of the first
respondent was that the leave encashment for unutilized 300 days
earned leave as provided under Rule 168 (A) of the West Bengal
Service Rules, Part I, 1971 (for short, the 1971 Rules) was not
revised in terms of ROPA 2009. Ventilating such grievance the first
respondent filed a previous Original Application being OA No. 1377
of 2011 before the Tribunal, claiming the difference of leave
encashment of 300 days of earned leave on the basis of ROPA 2009.
Vide order dated December 11, 2011 the said previous Original
Application was disposed of directing the Finance Secretary to treat
the same as his representation and dispose of the same after giving a
personal hearing to him.
3. On February 8, 2013 the Finance Secretary passed his reasoned
order rejecting the claim of the first respondent. On the basis of the
said reasoned order a contempt application was filed by the first
respondent before the Tribunal in connection with the said previous
W.P.S.T. 19 of 2020
Original Application. The same was dropped vide order dated
February 27, 2013.
4. Being aggrieved by the said order dated February 27, 2013 the
petitioner filed a writ petition before this Court being WPST 413 of
2013. The same was disposed of by this Court vide order dated
November 25, 2013 directing the petitioner to take appropriate
decision with regard to the claim of first respondent for sanctioning
the leave encashment benefit after providing an opportunity of
hearing to him. By an order dated April 23, 2014 the petitioner
rejected the claim of the first respondent holding, inter alia, that
leave encashment benefit under the policy of the State employer is
not a part of the retiral benefits.
5. Being aggrieved by the said decision of the petitioner dated April
23, 2014 the said Original Application was moved by the first
respondent which was disposed of by the impugned order.
6. Mr. Joytosh Majumdar, the learned Government Pleader,
appearing with Mr. Pinaki Dhole and Ms. Kakuli Samajpati,
Advocates representing the State employer/writ petitioner, at the
outset submitted that, the benefit of right to receive cash equivalent
to leave salary, for the period of unutilized leave earned accruing as
on the date of retirement is a condition of service. The entitlement of
the employee as to the same are provided and dealt with under Rules
168 and 168A of the 1971 Rules. Referring to the said Rule he
submitted that, the leave salary of a State employee on account of
unutilized leave is not a retiral benefit. The Tribunal while passing
the impugned order had failed to appreciate the aforesaid
submission, misconstrued the relevant Service Rules and passed the
impugned order. He submitted that, ROPA 2009 was given effect to
W.P.S.T. 19 of 2020
from January 1, 2006 notionally and the actual effect was granted
from April 1, 2008. All the serving employees were granted the actual
benefit from April 1, 2008 and onwards. No arrear on difference of
pay was allowed to any State employee for the period between
January 1, 2006 and March 31, 2008, as the benefit accrued to the
employee was given notionally and the actual payment of difference
was made w.e.f. April 1, 2008. Thus, the employees who retired w.e.f.
April 30, 2008 or thereafter received the actual benefit of ROPA
2009. As such the first respondent who had retired from service on
August 31, 2007 cannot have any right to receive the leave
encashment benefit in terms of ROPA 2009 and the claim in this
regard is wholly frivolous, misconceived and without any merit.
7. The first respondent appeared in person and submitted that,
ROPA 2009 came into force w.e.f. January 1, 2006. He submitted
that, the relevant Service Rules does not prohibit allowing the leave
salary benefit to be paid to him in terms of ROPA 2009. He further
submitted that, the leave encashment benefit had been earned by
him in course of his employment tenure and as such he is entitled to
receive such benefit in terms of ROPA 2009 in addition to what he
had already received. On January 1, 2006 when ROPA 2009 came
into force he was in employment. Thus, he submitted that, in the
previous round of litigations specific directions were passed by the
Tribunal as well as by this Court to consider his claim. He submitted
that, all such directions were made upon considering that the claim
of the first respondent being legitimate and otherwise tenable.
8. The first respondent further submitted that, the State employer
having not allowed the claim of the petitioner had acted in contempt
of the directions earlier issued by the Tribunal and this Court.
W.P.S.T. 19 of 2020
9. In support of his contentions the first respondent had relied
upon several judgments, which are, In the matter of: Priya Gupta &
Anr. vs. Additional Secretary, Ministry of Health and Family Welfare &
Ors., reported at (2013) 11 SCC 404; In the matter of: Amalendu
Kumar Bera & Ors. vs. State of West Bengal, reported at (2013) 4 SCC
52; In the matter of: Regional Manager, Central Bank of India vs.
Madhulika Guruprasad Dahir & Ors., reported at (2008) 13 SCC 170;
In the matter of: Union of India & Ors. vs. Nripen Sarma, reported at
(2013) 4 SCC 57; In the matter of: State of Jharkhand & Ors. vs.
Jitendra Kumar Srivastava & Anr., reported at (2013) 12 SCC 210 and
In the matter of: Postmaster General & Ors. vs. Living Media India
Limited & Anr., reported at (2012) 3 SCC 563.
10. Having heard the submissions made on behalf of the parties and
on perusal of the material before this Court, it appears that, the
relevant facts, namely, the first respondent retired on August 31,
2007, ROPA 2009 came into force w.e.f. January 1, 2006 but the
actual effect was given on and from April 1, 2008 and that the first
respondent had received all his retirement benefits including the
leave encashment benefit, are not disputed by the parties.
11. Rule 168 and 168A of the 1971 Rules are reproduced herein
below:
Leave preparatory to retirement.
168. (1) A government employee may be permitted by the
authority competent to grant leave to take leave preparatory
to retirement to the extent of earned leave due not exceeding
240 days together with half-pay leave due, subject to the
condition that such leave extends up to and includes the date
of retirement.
W.P.S.T. 19 of 2020
(2)(a) Where a Government employee who is on foreign
service in or under any local authority or in a corporation or
company wholly or substantially owned or controlled by the
Government or a body controlled or financed by the
Government (hereinafter referred to as the local body) applies
for leave preparatory to retirement, the decision to grant such
leave shall be taken by the foreign employer with the
concurrence of the lending authority under the Government.
(b) The Government employee on foreign service shall also be
allowed to encash earned leave at his credit on the date of
retirement in the manner provided in sub-rule (2) of rule
168A.
(3) Where a Government employee is on foreign service in or
under a local body other than those mentioned in clause (a)
of sub-rule (2), leave preparatory to retirement shall be
admissible to him only when he quits duty under the foreign
employer:
Provided that where the Government employee continuous in
service under such foreign employer, he shall not be eligible
for grant of cash payment in lieu of leave under rule 168A.
168A. (1) No leave shall be granted to a Government
employee beyond-
(a) the date of his retirement on superannuation, or
(b) the date of his final cessation of duties, or
(c) the date on which he retires by giving notice to
Government or he is retired by Government by giving
him notice or pay and allowances in lieu of such notice,
W.P.S.T. 19 of 2020
in accordance with terms and conditions of his service,
or
(d) the date of his resignation from service.
(2)(a) Where a Government employee retires on attaining the
age of superannuation, the authority competent to grant
leave shall suo motu issue an order granting cash equivalent
of leave salary for earned leave, if any, at the credit of the
Government employee on the date of his retirement, subject
to a maximum of 240 days.
(b)(i) The cash equivalent under clause (a) shall be
calculated as follows and shall be payable in one lump
sum as one tome settlement. No house rent allowances or
hill allowance or other compensatory allowances will be
admissible. Medical allowance not being a compensatory
allowance may be granted along with such leave salary.
(ii) such cash equivalent shall not be subject to reduction
on account of pension and pension equivalent to gratuity.
(3) A Government employee who retires from service on
attaining the date of retirement while under suspension,
shall become eligible for the benefit of cash equivalent of
earned leave that was at his credit on the date of his
retirement calculated in the manner provided in clause (b) of
sub-rule (2), on conclusion of the proceedings against him, if
the authority competent to re-instate him in service holds that
the suspension was wholly unjustified.
(4) A Government employee who retires or is retired from
service in the manner mentioned in clause (c) of sub-rule (1)
may be granted, suo motu, by the authority competent to
W.P.S.T. 19 of 2020
grant leave, cash equivalent of leave salary in respect of
earned leave at his credit subject to a maximum of 240 days
and also in respect of all the half pay leave at his credit,
provided this period does not exceed the period between the
date on which he so retires or is retired from service and the
date on which he would have retired in the normal course
after attaining the age of superannuation.
The cash equivalent shall be equal to the leave salary as
admissible for earned leave and/or equal to the leave salary
as admissible for half pay leave plus dearness and medical
allowances as admissible on that leave salary for the first
240 days, at the rates in force in the date the Government
employee so retires or is retired from service. The pension
and pension equivalent of other retirement benefits and ad-
hoc relief/graded relief on pension shall be deducted from
the leave salary paid for the period of half pay leave, if any,
for which the cash equivalent paid for the period of half pay
leave, if any, for which the cash equivalent is payable. The
amount so calculated shall be paid in one lump sum as one
time settlement. No house rent allowance, hill allowance and
other compensatory allowance shall be payable:
Provided that if leave salary for half-pay leave component
falls short of pension and other pensionary benefits, cash
equivalent of half-pay leave shall not be granted:
Provided further that a Government employee who is retired
by Government by giving him pay and allowances in lieu of
notice, may apply for leave within the period for which such
pay and allowances were given, and where he s granted
W.P.S.T. 19 of 2020
leave, the leave salary shall be allowed only for the period of
leave excluding that period for which pay and allowances in
lieu of notice have been allowed.
(5)(i)(a) Where the services of a Government employee are
terminated by notice or otherwise in accordance with the
terms and conditions of his appointment may be granted, suo
motu by the authority competent to grant leave, cash
equivalent in respect of earned leave at his credit on the date
on which he ceases to be in service subject to a maximum of
240 days.
(ii) If a Government employee resigns or quits service, he may
be granted suo motu by the authority competent to grant
leave, cash equivalent in respect of earned leave at his credit
on the date of cessation of service, to the extent of half of
such leave at his credit, subject to a maximum of 120 days.
(iii) A Government employee who is reemployed after
retirement, may on termination of his re-employment, be
granted, suo motu, by the authority competent to grant leave,
cash equivalent in respect of earned leave at his credit in the
date of termination of re-employment subject to a maximum
of 240 days including the period for which encashment was
allowed at the time of retirement.
(b) The cash equivalent under clause (a) shall be equal to
leave salary admissible for earned leave calculated under
rule 176 plus dearness and medical allowance admissible on
that leave salary at the rates in force on the date the
Government employee ceases to be in service. The amount so
calculated shall be paid in one lump sum as one time
W.P.S.T. 19 of 2020
settlement. No house-rent allowance or hill allowance or other
compensatory allowance shall be payable.
12. From a plain reading and construction of the relevant Service
Rules as quoted above, it is clear that a government employee may
be permitted by the employer to take leave preparatory to retirement
to the extent of earned leave due not exceeding 240 days together
with half-pay leave due, subject to the condition that such leave
extends up to and includes the date of retirement. No leave shall be
granted to a government employee beyond the date of his retirement
on superannuation or the date of final cessation of service. The first
respondent had admittedly superannuated from his service on
August 31, 2007. Thus, according to the said Service Rules, under
which the first respondent was governed, the first respondent is not
entitled to nor can claim any benefit on account of or attached to his
leave beyond the date of his superannuation i.e. August 31, 2007.
Therefore, the claim of the first respondent on account of his leave
encashment quantum in terms of ROPA 2009 which notionally came
into force w.e.f. January 1, 2006 has no merit. ROPA 2009 was
effected actually w.e.f. April 1, 2008, when admittedly the first
respondent was superannuated. It is elementary that an employee
can only take leave during his service tenure and not beyond and as
such any benefit attached with such leave can only be claimed by
such an employee for his service tenure and not beyond that.
Therefore, the first respondent could and cannot claim any benefit
under ROPA 2009 beyond his service tenure.
13. In as much as, the petitioner was superannuated on August 31,
2007 and he had admittedly received all his service benefits
immediately thereafter. ROPA 2009 notionally came into force w.e.f.
W.P.S.T. 19 of 2020
January 2006 and actual effect was given w.e.f. April 1, 2008. The
first respondent for the first time about four years after his
superannuation in 2011 filed the previous Original Application being
OA 1377 of 2011 before the Tribunal and lodged his claim. In any
event the said previous application was beyond the period of
limitation as prescribed under Section 21 of the Administrative
Tribunal Act, 1985. This clearly shows that the challenge of the first
respondent even at the initial stage was a result of an after thought.
Be that as it may, finally by an order dated April 23, 2014 the
petitioner rejected the claim by showing elaborate reasons.
14. From a close perusal of the said reasoned order dated April 23,
2014 passed by the petitioner it appears to this Court that the same
is well founded and reasoned and the same was passed on due
consideration of the relevant materials and the applicable legal
provisions in the present case.
15. In the matter of: Priya Gupta & Anr. (supra), the Hon'ble
Supreme Court had laid down general principles which can
constitute a willful disobedience/contumacious conduct to proceed
in a contempt proceeding and sentencing as justified. In the matter
of: Amalendu Kumar Bera & Ors.(supra), the Hon'ble Supreme Court
had laid down principles as to what would constitute as sufficient
cause within the meaning of Section 5 of the Limitation Act and to
construe such sufficient cause with a liberal approach and not
warranted to be accepted even in favour of a State litigant, if it not
otherwise to the satisfaction of the Court. In the matter of: Regional
Manager, Central Bank of India (supra), this was a case where a fraud
was practiced by a concerned employee while submitting the
necessary documents to obtain the service. The Hon'ble Supreme
W.P.S.T. 19 of 2020
Court had observed that in case of a fraud equitable jurisdiction of
High Court is not available to such employee. In the matter of: Union
of India & Ors. (supra), it was again a case of unsatisfactory
explanation of delay in filing an appeal. In the matter of: State of
Jharkhand & Ors. (supra), it was on the point that an executive
instruction cannot substitute the law/rules. In the matter of:
Postmaster General & Ors.(supra), this was again a judgment on
condonation of delay in connection with Section 5 of the Limitation
Act, 1963. The ratio decided in all these judgments referred to on
behalf of the first respondent have no application in the facts and
circumstances of this case. The question of condonation of delay in
filing a proceeding is not the subject matter in the present writ
petition. The question of exercise of equitable jurisdiction by a Writ
Court in the facts and circumstances of this case is also not an issue
in the present writ proceeding. In as much as, the relevant service
rules as already discussed above specifically provides that beyond
the period of superannuation no benefit of leave is available to a
government employee. In as much as ROPA 2009 was actually given
effect to much after superannuation of the first respondent and as
such the first respondent cannot claim any benefit thereunder. So
the question of substituting any law or rules by ROPA 2009 does not
and cannot arise in the facts of this case.
16. In view of our foregoing discussions and the reasons mentioned
above the writ petition is allowed. Impugned order dated April 3,
2019 passed by the Tribunal stands set aside. The reasoned decision
of the petitioner dated April 23, 2014 stands affirmed and is not
interfered with.
W.P.S.T. 19 of 2020
17. The present writ petition being W.P.S.T. 19 of 2020 stands
allowed.
(Rajesh Bindal)
Chief Justice (Acting)
(Aniruddha Roy)
Judge
Kolkata
10.06.2021
................
P.A. (RM)
