Delhi High Court
Central Bank Of India vs Shri Shyam Lal Jain on 20 August, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 4469/2007
% Date of Decision: 20th August, 2009
# CENTRAL BANK OF INDIA
..... PETITIONER
! Through: Mr. Ashish Wad, Advocate.
VERSUS
$ SHRI SHYAM LAL JAIN
.....RESPONDENT
^ Through: Mr. M.K. Tripathy, Advocate.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper may be allowed to see
the judgment? YES
2. To be referred to the reporter or not?YES
3. Whether the judgment should be reported in the
Digest?YES
S.N.AGGARWAL, J (ORAL)
This writ petition filed by the Central Bank of India (hereinafter
referred to as the petitioner) is directed against an award of Central
Government Industrial Tribunal (CGIT) dated 31.10.2006 in L.C.A. No.
129/2000 directing the petitioner management to calculate the Privilege
Leave accrued to the respondent in between 14.03.1977 to 10.10.1994
and make payment of the same at his last drawn salary within 3 months
from the date of the order.
2. Briefly stated the facts of the case relevant for disposal of this writ
petition are that the respondent was appointed as a Clerk with the
petitioner w.e.f. 31.08.1966. In the year 1975, when he was working at
Madipur Delhi Branch of the petitioner Bank, he was served with a
charge-sheet dated 20.06.1975 and a departmental inquiry was
instituted against him. He was placed under suspension, pending the
said inquiry which culminated in his discharge by an order passed by the
petitioner bank dated 14.03.1977. The respondent aggrieved by his
discharge, raised an industrial dispute which was referred by the Central
Government for adjudication to the Central Government Industrial
Tribunal, New Delhi, which made an award dated 09.02.1989 setting
aside the discharge of the respondent and directing his reinstatement
with continuity of service and payment of 50% back wages to him.
3. The said award passed by the CGIT was challenged by the
petitioner bank in this Court and this Court remanded the case back to
the CGIT for fresh decision after giving an opportunity to the petitioner
bank to lead evidence. Pursuant to the said order of this Court, the CGIT
vide its award dated 15.03.1994 again directed reinstatement of the
respondent but with 25% back wages. Consequent thereto, the
respondent was reinstated in service by the petitioner bank w.e.f.
10.10.1994 and was also paid 25% of pay and allowances which he
would have drawn from the date of his discharge till his reinstatement i.e.
14.03.1977 to 10.10.1994.
4. After the respondent was reinstated in service of the petitioner
bank w.e.f. 10.10.1994, he, on reaching the age of superannuation, has
retired from the service of the petitioner bank w.e.f. 06.09.1999. After
his retirement, he filed a Legal Claim Application being LCA No. 129/2000
before the CGIT and claimed encashment of Privilege Leave standing to
his credit earned by him during the period of his service with the
petitioner bank. It is on this application of the respondent, the CGIT has
passed the impugned order by which the petitioner management has
been directed to calculate and pay to the respondent for the Privilege
Leave accrued to him during the period from the date of his discharge,
i.e., 14.03.1977 till he was reinstated, i.e., 10.10.1994.
5. Mr. Ashish Wad, learned counsel appearing on behalf of the
petitioner, has argued that the benefit of Privilege Leave during the
period from 14.03.1977 to 10.10.1994, was not available to the
respondent in view of Clause 13.17 of Bipartite Settlement according to
which the Privilege Leave could have been earned by the respondent had
he been in active service of the bank for the said period. The submission
of Mr. Wad is that since the respondent did not do any work during the
aforesaid period, he was not entitled to either Privilege Leave or for
encashment of the same for the aforesaid period.
6. On the other hand, Mr. M.K. Tripathy, learned counsel appearing on
behalf of the respondent, has argued that since the order for
reinstatement of the respondent was with continuity of service, the
respondent is deemed to be in the employment of the petitioner bank
even during the period from the date of his discharge till the date of his
reinstatement, i.e., the period between 14.03.1977 and 10.10.1994.
7. In view of the above rival submissions made by the counsel for the
parties, the question that arises for consideration of the Court is whether
the deemed service of the respondent can be equated with an active
service for the purpose of grant of benefit of Privilege Leave. This
question which has arisen in the present writ petition came up for
consideration before the Full Bench of the Andhra Pradesh High Court in
Andhra Bank and Another Vs. P. Balakrishna (died) 2005 (3) ALT
771, wherein it was held as under:
"After going through various settlements of memoranda
between the workmen and the employer, we are in no
doubt to conclude that the privilege leave 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."
8. Mr. Tripathy, learned counsel appearing on behalf of the
respondent, could not cite any judgment to the contrary and, therefore,
this Court feels itself bound by the Full Bench decision of the Andhra
Pradesh High Court in the case of P. Balakrishna (supra).
9. In the light of the law laid down by the Full Bench of the Andhra
Pradesh High Court and also having regard to the submissions made by
the counsel for the parties, this Court is of the opinion that the impugned
order of the CGIT suffers from perversity and has to be set aside. The
impugned order of the CGIT dated 31.10.2006 in L.C.A. No. 129/2000 is,
therefore, set aside and consequent thereto, the impugned recovery
notice dated 22.05.2007 (Annexure-I at page 20 of the Paper Book) is
also set aside. This writ petition is allowed. The parties are left to bear
their own costs.
AUGUST 20, 2009 S.N.AGGARWAL, J
'bsr'
