Delhi High Court
Union Of India & Anr vs B.C. Kailay on 16 April, 2018
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1932/2017
UNION OF INDIA & ANR ..... Petitioners
Through: Mr.Jasmeet Singh, CGSC for UOI
versus
B.C. KAILAY ..... Respondent
Through: Mr.Devi Krishan Sharma, Advocate
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 16.04.2018
W.P.(C) 1932/2017
1. The petitioner No.1/UOI and petitioner No.2/National Informatics
Centre, Department of Electronics & Information Technology (in short
'NIC') are aggrieved by the order dated 03.06.2016, passed by the Central
Administrative Tribunal, allowing OA No.1420/2015, filed by the
respondent, seeking directions to implement the office order dated
02.01.2013 with all consequential benefits and interest.
2. A glance on the admitted facts of the case is considered necessary.
The respondent had joined the NIC as a Scientist/Engineer Gr. SD
(Scientist-C) on 10.02.1984. On 18.03.2005, the respondent was found
guilty for the offences punishable under Section 120-B r/w Sections 420,
467, 468 and 471 IPC and 13(2) r/w 13(1)(d) of the PC Act by the Special
Judge, Delhi in RC Case No.2(A)/92/CC No.59/01. Vide an order on
sentence dated 21.03.2005, the respondent was sentenced to undergo
rigorous imprisonment ranging from 1 to 3 years for difference offences
along with fine. Vide order dated 20.02.2006, in exercise of the powers
conferred under Rule 19(i) of CCS (Classification, Control and Appeal)
Rules, 1965, the President of India had removed the respondent from
Government service with immediate effect.
3. Aggrieved by the said order, the respondent submitted two review
petitions. The second review petition dated 07.12.2011, was considered by
the Competent Authority. Vide office order dated 02.01.2013, the petitioners
conveyed to the respondent that the Competent Authority had sanctioned
him payment of cash equivalent of the leave salary of `2,99,938/- for
235 days of earned leave upto 20.02.2006, the date of his removal from
service. Within two weeks reckoned from the date of issuance of the office
order dated 02.01.2013, the petitioners issued another order dated
15.01.2013, cancelling the earlier order dated 02.01.2013 by stating that the
respondent was ineligible for payment of earned leave encashment in terms
of Rule 9(1) of CCS Leave Rules. Thereafter, an order dated 06.03.2013 was
passed by the petitioners granting the respondent compassionate allowance
and gratuity to the extent of 50% of pension and gratuity with immediate
effect.
4. Aggrieved by the aforesaid cancellation order dated 15.01.2013, the
respondent preferred OA No.1420/2015 before the Tribunal, which was
allowed by the impugned order dated 03.06.2016, by holding that in exercise
of 'Equity Jurisdiction', the order dated 15.01.2013 ought to be quashed.
Resultantly, the petitioners were directed to release leave encashment in
favour of the respondent in terms of the earlier order dated 02.01.2013,
within a period of three months of production of a certified copy of the said
order.
5. Aggrieved by the aforesaid decision, the petitioners have filed the
present petition.
6. Mr.Jasmeet Singh, learned counsel for the petitioners submits that
while passing the impugned order, the learned Tribunal failed to appreciate
the provisions of Rule 9(i) of CCS (Leave Rules) in the correct perspective
and erroneously applied Rule 39(6)(a)(i) of the CCS (Leave Rules). He
states that Rule 9(i) of the CCS (Leave Rules) contemplates the effect of
dismissal, removal or resignation on the leave to the credit of a Government
Servant by providing that any claim ceases from the date he is dismissed,
removed or resigns from service. It is stated that in the present case, the
respondent was removed from service in terms of the order dated
20.02.2006. Learned counsel submits that the Tribunal failed to appreciate
that only if the grant/non-grant of benefit is arbitrary or whimsical, should
the court interfere and in the present case, the office order dated 02.01.2013
was issued due to oversight and was rectified by issuing the order dated
15.01.2013, which was passed in terms of the extant rules.
7. In support of the submission that equity cannot have a role to play
when the Statute occupies the field, learned counsel for the petitioners relies
on the judgment of the Supreme Court in the case of Union of India and
Others Vs. Dhanwanti Devi and Others reported as (1996) 6 SCC 44. He has
also cited the decision of the Supreme Court in the case of Videsh Sanchar
Nigal Ltd. and Another Vs. Ajit Kumar Kar and Others reported as (2008)
11 SCC 591 to contend that a bona fide mistake does not confer any right on
the party and the error can be corrected.
8. Per contra, learned counsel for the respondent submits that the fact
position of the present case is covered by the Rule 39(6)(a)(i) of the CCS
(Leave Rules) and once the order dated 02.01.2013 had been issued by the
petitioners, they were not empowered to withhold the cash equivalent to the
leave salary of the respondent on the strength of the subsequent order
dated 15.01.2013, to which a challenge had been laid by the respondent
before the Tribunal.
9. We have heard the learned counsel for the parties and given careful
consideration to the respective submissions made by them in the light of the
pleadings on the record. The dispute in the present case lies in a narrow
compass. The Tribunal was required to examine the plea of the respondent
for claiming implementation of the order dated 02.01.2013, in accordance
with extant Rules. Rule 9(i) of CCS (Leave Rules) provides as follows:-
"9. Effect of dismissal, removal or resignation on leave at
credit:
(1) Except as provided in Rule 39 and this rule, any claim to
leave to the credit of a Government servant, who is dismissed
or removed or who resigns from Government service, ceases
from the date of such dismissal or removal or resignation."
10. It is clear from a perusal of the aforesaid Rule that once a Government
servant is dismissed/removed from service or tenders his resignation, he
cannot lay any claim to the leave lying to his credit. In the instant case, vide
order dated 20.02.2006, the Competent Authority had removed the
respondent from service with immediate effect. In such circumstances, the
respondent could not have invoked the provisions of Rule 39(6)(a)(i) of the
CCS (Leave Rules) which is reproduced herein below for ready reference:-
"39. (6)(a)(i) where the services of a Government servant are
terminated by notice or by payment of pay and allowances in
lieu of notice or otherwise in accordance with the terms and
conditions of his appointment, he may be granted, suo motu, by
the authority competent to grant leave, cash equivalent in
respect of both earned leave and half pay leave at his credit on
the date on which he ceases to be in service subject to a
maximum of 300 days and the cash equivalent payable shall be
the same as in sub-rule (2) of rule 39."
11. It is apparent from the aforesaid Rule that the same can be invoked
where the services of the Government servant are terminated by giving
notice or by payment in lieu of notice period in terms of service conditions
of his appointment. In the instant case, the services of the respondent were
admittedly not terminated by giving a notice or by payment in lieu of the
notice period. In such circumstances, the question of his being granted cash
equivalent to his earned leave does not arise.
12. Learned counsel for the petitioners has rightly argued that once the
Statute occupies the field, then equity cannot be invoked to grant relief
which is contrary to the provisions of the Statute. In the present case, Rule
9 (i) of the CCS (Leave Rules) is applicable.
13. In view of the above discussion, the petitioners succeed. The
impugned order dated 03.06.2016 cannot be sustained and is accordingly
quashed and set aside.
14. The present petition is allowed while leaving the parties to bear their
own costs.
CM No.8579/2017 (stay)
Dismissed as infructuous.
HIMA KOHLI, J.
PRATIBHA RANI, J.
APRIL 16, 2018
„pg‟
