S.L. Batta vs Union Of India (Uoi), Through ...
2002 Latest Caselaw 2118 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. This writ petition has been filed by the petitioner, inter alia, for issuance of direction to respondents 2 & 3 to transfer 171 privilege leaves and 234 sick leaves earned by the petitioner while he was in service of Central Bank of India to the present employer i.e. Power Finance Corporation Ltd.

3. The case of the petitioner is that the petitioner applied through proper channel to the post of Deputy Manager (Law) in Power Finance Corporation Ltd. After no objection was granted by the respondents 2 & 3, he joined the said post. The petitioner, thereafter, tendered his resignation and with three months notice as required under the rules. The protection vide letter dated 15.12.99, wrote to the respondents requesting for transfer of provident fund to new employer as per the rules. Thereafter, vide letter dated 4.1.2000, the petitioner wrote to the respondents to transfer his balance of 171 privileges leaves and 234 sick leaves to Power Finance Corporation Ltd. In this connection, counsel for the petitioner has relied upon an office memorandum issued by Government of India.

4. Mr. R.S. Mathur counsel for respondents 2 & 3 has contended that under the regulation of respondents, they cannot transfer privilege leave as well as sick leaves to the Power Finance Corporation as the petitioner has resigned from the service. Mr. Mathur has further contended that the O.M. dated 14.12.82 issued by Government of India is only a guide-line of public bureau enterprises and the same has not been implemented by the respondent. The service conditions of the employee of the bank are governed by Regulations 33 and 38. They read as follows:

"Privilege Leave 33(1):- An Officer shall be eligible for privilege leave computed at one day for every 11 days of service on duty provided that at the commencement of service no privilege leave may be availed of, before completion of 11 months of service on duty.

2. An officer on privilege leave shall be entitled to full emoluments for the period of leave.

3. The period of privilege leave to which an officer is entitled at any time shall be the period which he has earned, less the period of leave availed of.

4. Privilege leave may be accumulated up to not more than 189 days except where leave has been applied for and it has been refused. Provided that where as officer was, under the terms and conditions of service applicable to him immediately before the date of coming into force of these regulations, eligible to accumulate privilege leave, for a period longer than 180 days, he shall be eligible to accumulate leave for such longer period.

5. An officer desiring to avail of privilege leave shall ordinarily give not less than one month's notice of his intention to of such leave."

"Lapse of leave.38:- All leave shall ceases to be in the service of the Bank, provided that where an officer dies while in service, there shall be payable to his legal representatives sums which would have been payable to the officer, if he had availed of the privilege leave, that he had accumulated at the time of his death.

Provided further that where an officer retires from the Bank's service, he shall be eligible to be paid a sum equivalent to the emoluments of any period of privilege leave that he had accumulated."

Regulation 33 speaks of two things:

1) What is privilege leave and how it is earned, and Privilege leave can be accumulated subject to a ceiling of 180 days. Regulation 33 does not speak of encashment of privilege leave, coming to Regulation 38, it firstly declares that all leave shall lapse on the death of the officer or if he ceases to be in the service of the Bank, but then enacts two provisos. The first proviso days while in service, his legal representatives will be paid sums which would have been payable to the office if he had availed of the said leave. Second Proviso says that where an officer retires from services he shall be eligible to encash the privilege leave.

5. The consideration of respondents is based on callous understanding of the regulation. At the outset resignation was with the consent of the respondent bank and was not in the nature of penalty. Even otherwise, the privilege leave or sick leave which has been earned by the petitioner by serving the bank cannot be denied under the garb of any regulation. To my mind, there is no justification or reason to deprive the petitioner this benefit when all other terminal benefits have been paid to him. A similar question arose before Andhra Pradesh High Court in State Bank of Hyderabad v. V.V. Krishna Murthy, C.W. 1495/84. The Division Bench of Andhra Pradesh High Court held as under:

"It may also be noticed that resignation is not in the nature of a penalty. There would therefore be no reason or justice in depriving the person, who has been allowed to resign or his right, which he earned by serving the bank. In this case the writ petitioner had served the Bank from 1961 to 1982. There is no reason why he should be deprived of this particular benefit when all other terminal benefits have been paid to him. An employee cannot resign except with the consent of the employer. Indeed construing Regulation 38 in such a literal manner as contended for by the Bank may render it open to attack on the ground of unreasonableness. Be that as it may, we are of the opinion that they view taken by the learned Single judge is right for the several reasons mentioned above and that no interference is called for."

6. Following the ratio of judgment of Andhra Pradesh of High Court, I allow the writ petition.

7. Therefore, direction is issued to the respondents to transfer 171 privilege leaves and 234 medical leaves to the account of Power Finance Corporation Ltd in favor of petitioner. If the respondents do not want to transfer the same to present employer of the petitioner, the amount equivalent to the privilege leaves and sick leaves be paid to the petitioner directly within four weeks.

8. Writ petition is allowed.

9. Rule is made absolute.