Madras High Court
The Secretary To Government vs S. Jothindra Geeth Prakash on 27 January, 2021
W.A.(MD) No.1033 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.01.2021
CORAM :
The Hon'ble Mr.JUSTICE M.M.SUNDRESH
AND
The Hon'ble Mrs.JUSTICE S.ANANTHI
W.A.(MD) No. 1033 of 2020
and CMP(MD) No. 5649 of 2020
1. The Secretary to Government,
Revenue Department,
Secretariat, Chennai – 600 009.
2. The Commissioner of Revenue Administration,
Ezhilagam, Chepauk,
Chennai – 600 005.
3. The District Collector,
Kanniyakumari District @ Nagaercoil. .. Appellants/Respondents
Vs
S. Jothindra Geeth Prakash .. Respondent/Writ Petitioner
PRAYER : Petition filed under Clause 15 of Letters Patent Act, to allow
the writ Appeal and set aside the order passe by the learned Judge, dated
25.04.20219 made in W.P.(MD) No. 10090 of 2019 on the file of this Court.
For Appellants/Respondents : Mrs.J. Padmavathi Devi,
Special Government Pleader
For Respondent/Writ Petitioner Mr.S. Visvalingam
Page 1 of 7
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W.A.(MD) No.1033 of 2020
ORDER
[Order of the Court was made by S. ANANTHI, J.]
This writ appeal has been preferred by the appellants/respondents
aggrieved over the order passed by the learned single Judge of this Court,
dated 25.04.2019 in W.P.(MD) No.10090 of 2019, by which, the impugned
order directing the first respondent to disburse the General Provident Fund,
Special Provident Fund and leave salary to the petitioner. Challenging the
same, the present appeal has been filed.
2. The learned counsel appearing for the respondent/writ petitioner
submitted that the petitioner was served as District Adi Dravidar and Tribal
Welfare Officer of Kanyakumari District @ Nagercoil and his date of
superannuation was on 30.04.2007. He further submitted that he was not
allowed to retire on the date of superannuation and placed under suspension
as per G.O.(2D) No. 275 Revenue Department, dated 30.04.20107 on the
ground that the Vigilance case registered against him is pending and the
aforesaid criminal case is under trial.
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W.A.(MD) No.1033 of 2020
3. Heard the learned Special Government Pleader appearing for the
appellants.
4. Employees contribution to provident fund and accumulated earned
leave are properties of the employees, they cannot be hold by the employer
even if the employee is terminated from service. In this regard, the
principles are well settled by this Court and Apex Court in several writ
petitions.
5. The Division Bench of this Court in the case of the Chief
Secretary to Government Public (Special – A) Department, Fort Saint
George, Chennai Vs. M. Uthiraswamy, [W.A. No. 4018 of 219] decided on
22.11.2019] after considering various judgments of this Court and the
Hon'ble Supreme Court, has held as under:
“16. Employees contribution to provident Fund
and leave which has been earned by him (not encashed)
are the property of the employee, they cannot be taken
away, without due process of law, as enshrined, under
Article 300-A of the Constitution of India. There is
nothing in the Rules which has been relied by the learned
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W.A.(MD) No.1033 of 2020
Government Pleader which will enable the Government
to withhold the Employee's own contribution to Provident
Fund and encashment of accumulated earned leave when
the Government servant has attained the age of
superannuation. These amounts have to be given to the
Government servant, even if the criminal proceedings
culminate against the Government servant and the
Government servant is terminated from service. If these
amounts cannot be forfeited even on termination, there is
no justification in withholding the same during the
continuation of criminal proceedings after the
Government servant hs attained the age of
superannuation”.
6. Another Judgment passed by the Division Bench of this Court in
W.A. No. 207 of 2016, dated 26.02.2016, has held as follows:
“ The learned Single Judge, considering all aspets
of the matter, held that the petitioner was having earned
leave and unearned leave on private affairs before
initiation of the case and as such, he is entitled to
encshment of earned leave and unearned leave on private
affairs. The claim of gratuity was given up by the
employee/writ petitioner may not be entitled to get
gratuity. The special provident fund was also not gratned
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W.A.(MD) No.1033 of 2020
as the writ petitioner failed to establish any contribution
made by him. While disposing of the writ petition, a
direction was made to the appellants herein to disburse
encashment of earned leave and encashment of unearned
leave on private affairs. In respect of special provident
fund, it was held that if any contribution was made by the
writ petitioner, the same can be paid to the petitioner.
5. We do not find any error, illegality or infirmity in the
order sought to be impugned in this writ appeal preferred
by the Tamil Nadu Generation and Electricity
Distribution Corporation Ltd., warranting interference.
Thus, the writ appeal stands dismissed”.
The same was confirmed by the Apex Court in S.L.P. No.16229 of 2016
dated 26.02.2016. It is squarelly applicable to this case also.
7. As the leave salary is property to the employee and it cannot be
hold by the employer. Regarding special provident fund, if any contribution
made by the employee should be disbursed to the employee. Therefore, the
respondent/writ petitioner is entitled to get special provident fund what he
actually contribue and leave salary.
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W.A.(MD) No.1033 of 2020
8. Finally, this writ appeal stands dismissed with direction to the
appellants/respondents to disburse the amount as found above, within a
period of Four Weeks from the date of receipt of a copy of the order.
However there is no order as to costs. Consequently, connected
miscellaneous petition is closed.
(M.M.S., J.) (S.A.I., J.)
27.01.2021
Index : Yes/No
Internet : Yes/No
ksa
Note : In view of the present lock
down owing to COVID-19 pandemic,
a web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate/litigant concerned.
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W.A.(MD) No.1033 of 2020
M.M.SUNDRESH, J.
and
S.ANANTHI, J.
ksa
Order made in
W.A.(MD) No. 1033 of 2020
27.01.2021
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