Delhi High Court
Kanwar Pal Singh vs Uoi And Ors on 1 December, 2010
Author: Gita Mittal
11
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.4011/2010
Date of Decision : 1st December, 2010
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KANWAR PAL SINGH ..... Petitioner
Through : Mr. Mohan Kumar, Adv.
versus
UOI AND ORS ..... Respondents
Through : Mr. Anurag Kasana, Adv.
for R-1 to 3.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
GITA MITTAL, J. (Oral)
1. By way of this writ petition, the petitioner assails an order
dated 6th February, 2010 whereby his prayer for leave
encashment has been rejected. The petitioner had joined the
Central Industrial Security Force („CISF‟ hereafter) on 25th
August, 2001 in the post of Constable. He came to be
dismissed from service by an order passed on 8th April, 2009
pursuant to disciplinary proceedings conducted against him.
The petitioner has assailed his dismissal from service by way of
WP(C)No.13193/2009 which is stated to be still pending.
2. In the meantime, the petitioner made representations to
the respondents seeking encashment of the leave to which he
was entitled to. Reliance is placed on Article 300A of the
Constitution of India in support of the contention that
entitlement to leave and provisions thereof have been
recognized as a right of an employee which could not be
abrogated, curtailed or taken away by the respondents in any
manner not permissible by law. The petitioner maintains his
challenge to the legality of the dismissal order. However, for
the reason that an independent challenge in respect thereof is
pending, we are not required to examine the same in the
present proceedings, especially in view of the limited prayer in
the present writ petition and the petitioner‟s challenge to the
same separately pending.
3. The petitioner‟s claim has been opposed by the
respondents on the sole ground that in view of his dismissal
from service, the petitioner forfeits all benefits in view of the
applicable Central Civil Services Rules. It has been submitted
by the respondents that upon removal or dismissal from
service, a government servant forfeits his past service and
shall not be entitled to gratuity and pension.
4. It is noteworthy that the respondents are unable to place
any specific rule which touches upon any aspect of a person‟s
entitlement to the benefits of the policy with regard to
encashment of leave or any adverse consequences thereof on
account of interdiction of service because of an order of
dismissal or removal.
5. Learned counsel for the petitioner has drawn our
attention to the judgment dated 11th September, 2002 of the
Division Bench of this court in WP(C)No.3545/2002 titled LAC R
Bhaskaran vs. Union of India and Others wherein this court on a
detailed consideration of the applicable rules, regulations and
circulars has held as follows:-
"21. The Central Government having adopted a
scheme for grant of leave encashment, if leave is
not availed of by an employee, in our opinion, the
same would be paid to a personnel, despite the
fact that he was dismissed from Government
service. Once a provision is made for payment of
certain amount by way of leave encashment, it
becomes akin to a right of property in terms of
Article 300A of the Constitution of India. Such a
right can neither be taken away nor curtailed by
reason of a mere circular. We, therefore, are of
the opinion that the petitioner herein will be
entitled to leave encashment."
6. Placing reliance on this finding by a pronouncement,
learned counsel for the petitioner has placed before us copy of
an order dated 19th May, 2008 passed in WP(C)No.495/2008
titled Subhash Pandey vs. Union of India wherein this court
issued a writ of mandamus directing the respondents to pay
leave encashment amount to the petitioner who was serving as
an Air Force officer and had been dismissed from service. It is,
therefore, evident that the denial of leave encashment as well
as opposition to the writ petition has no legal basis at all and is
completely unjustified.
In view of the above, we direct as follows:-
(i) The respondents are directed to pay the leave
encashment benefit permissible to the petitioner
within a period of six weeks from the date of
communication of this order.
(ii) In case the matter is delayed, the petitioner would
be entitled to simple interest @ 8% per annum on
the said amount with effect from today.
This writ petition is allowed in the above terms.
Dasti to the parties.
GITA MITTAL, J
J.R. MIDHA, J
DECEMBER 01, 2010
aj
