Madras High Court
The Additional Chief Secretary To ... vs M.Namadev on 27 July, 2021
W.A.No.807 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 27.07.2021
Coram
The Hon'ble Mrs. Justice PUSHPA SATHYANARAYANA
and
The Hon'ble Mr. Justice KRISHNAN RAMASAMY
W.A.No.807 of 2021
and C.M.P.No.4432 of 2021
1. The Additional Chief Secretary to Government,
Highways and Minor Ports (HL1) Department,
Secretariat, Chennai-09.
2. The Chief Engineer,
Highways Department,
Planning and investigation,
Chennai-25.
3. The Divisional Engineer,
Highways Department,
Investigation Division,
Salem-04. .. Appellants
Vs
M.Namadev .. Respondent
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, against
the order passed by the learned single Judge dated 30.01.2020 in
W.P.No.2090 of 2020.
1/11
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W.A.No.807 of 2021
For Appellant .. Mr.Neelakandan, State Govt.Counsel
For Respondent .. Mr.A.Thiyagarajan
JUDGMENT
(Judgment of the Court was delivered by KRISHNAN RAMASAMY, J.)
This intra-Court Appeal has been directed against the order dated
30.01.2020 in W.P.No.2090 of 2020 passed by a learned single Judge of this
Court, in and by which, while allowing the Writ Petition filed by the
respondent herein, directed the appellants herein to settle the Earned Leave
and Unearned leave encashment, Special GPF and Gratuity to the
respondent.
2. The respondent herein is the writ petitioner. While he was working
as Assistant Divisional Engineer, National Highways, Investigation
Division, Salem, came to be dismissed from service vide G.O.(3D) No.12,
Highways & Minor Ports (HL1) Department dated 03.09.2019 pursuant to
his conviction and sentence under the Prevention of Corruption Act, 1988
imposed vide judgment dated 30.05.2017 by the learned Judicial
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W.A.No.807 of 2021
Magistrate/Special Judge, Ariyalur. According to the respondent, he is
entitled to payment of leave encashment of salary both earned and unearned
as per Rule 7 of the Tamil Nadu Leave Rules, 1933 and 86 (A) of
Fundamental Rules and also Gratuity which were earned during his service.
Therefore, the respondent has made a representation dated 16.08.2019,
seeking to sanction leave encashment salary of both earned and unearned
leave and Gratuity. Since no response was forthcoming despite his
representation, the respondent has moved this Court by filing a writ petition.
By order, dated 30.01.2020, learned single Judge, while following a
decision of this Court reported in 2019(5) CTC 19, held that the respondent
is entitled to both earned and unearned leave encashments and also G.P.F.
and Gratuity and accordingly, directed the appellants herein to settle the
same. Questioning the same, the appellants/authorities have come forward
with the present Writ Appeal.
3. Mr.R.Neelakandan, learned State Government counsel appearing
for the appellants would contend that the learned Judge has granted the
benefit of G.P.F. which, in fact, was never sought for by the respondent/writ
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W.A.No.807 of 2021
petitioner in his Writ Petition. He would submit that since a criminal case
pertains to illegal gratification was pending against the respondent, though
he reached the superannuation on 31.10.2005, by virtue of Rule 56(1)(c) of
the Fundamental Rules, he was not permitted to retire and retained in
service vide G.O.(3D) No.142 dated 31.10.2005 and ordered that all service
rights of the respondent shall be freezed at the level reached on the date of
superannuation. Therefore, he would contend that as per Rule 7 of the Tamil
Nadu Leave Rules, 1933, since the respondent was placed under suspension
and not permitted to retire from service on the date of his superannuation,
he is not entitled for enacahsment of earned leave and unearned leave on
private affairs. He would point out that as per Rule 40(1) of the Tami Nadu
Pension Rules, 1978, a Government servant who is dismissed or removed
from service, shall forfeit his pension and gratuity. Therefore, the learned
State Government counsel would pray this Court to set aside the order of
the learned single Judge.
4. The learned counsel appearing for the respondent would fairly
accede to the submission made by the learned State Government counsel
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W.A.No.807 of 2021
that in view of his dismissal from service, the respondent is not entitled to
gratuity and pension, however, he contended that the encashment of earned
leave and unearned leave, is nothing but acquiring a property owned by a
person and therefore, notwithstanding the order of dismissal, the same
cannot be denied and hence, the respondent is entitled to encashment of
earned leave and leave on private affairs.
5. Heard both sides and perused the entire materials available on
record.
6. Admittedly, though the respondent reached superannuation on
31.10.2005, however, the Government, by invoking Rule 56(1)(c) of the
Fundamental Rules, not permitted him to retire but retained in service vide
G.O.(3D) No.142 dated 31.10.2005 and also ordered that all service rights
of the respondent shall be freezed at the level reached on the date of
superannuation. In this regard, it is worthwhile to extract the Rule 56(1)(c)
as under:
"(c) Notwithstanding anything contained in clause (a), a
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W.A.No.807 of 2021
Government servant who is under suspension,
(i) on a charge of misconduct; or
(ii) against whom an enquiry into grave charges of criminal
misconduct or allegations of criminal misconduct, is pending; or
(iii) against whom an enquiry into grave charges is
contemplated or is pending; or
(iv) against whom a complaint of criminal offence is under
investigation or trial.
shall not be permitted by the appointing authority to retire
on his reaching the date of retirement, but shall be retained in
service until the enquiry into the charge of misconduct or criminal
misconduct or the enquiry into allegations of criminal misconduct
or the enquiry into contemplated charges or disciplinary
proceeding taken under rule 17(c) of the Tamil Nadu Civil
Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil
Nadu Police Sub-ordinate service (Discipline and Appeal) Rules,
as the case may be, in respect of item (iv) above is concluded and
a final order passed thereon by the competent authority or by any
higher authority.
Explanation.-For the purpose of this clause, the expression
'criminal misconduct' shall have the same meaning as in Section
13 of the Prevention of Corruption Act, 1988 (Central Act 49 of
1988).
Instruction under Rule 56 (1) (c).-Whether a Government
servant referred to in clause (c) is fully exonerated or not, he shall
be considered to have been on extension of service for the period
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W.A.No.807 of 2021
from the date of retirement to the date of termination of the
proceedings. During such an extension of service, the service
rights which have accrued to the Government servant shall freeze
at the level reached on the date of retirement and the salary during
that period shall not exceed the pension which has accrued to the
Government servant on that date."
11. A perusal of the said instruction would show that a Government
Servant referred to in clause 56(1)(c) shall be considered to have been on
extension of service for the period from the date of retirement to the date of
termination of the proceedings. It is further seen from the said instruction
that during such extension period, the service rights, which have accrued to
the Government Servant, shall freeze at the level reached on the date of
retirement. As regards 'service rights' referred to in the above said
instruction, have been succinctly dealt with as to how they have to be
construed, by a Division Bench of this Court in "The Secretary to
Government versus K.Palaniyandi" in its judgment in W.A.(MD) No.105 of
2019 dated 04.07.2019 and in para 11, it has been held as under:
"11. ....Here it is pertinent to note that the "service rights"
referred to in the said instruction deemed to have been frozen is to
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W.A.No.807 of 2021
be construed not in respect of the monetary benefits already
accrued in the account of the Government Servant, such as Earned
Leave Salary etc.,. and on the other hand, the term "service
rights" referred to therein is to mean as referable to increment,
promotion etc. Certainly, "service benefits" already derived
cannot be treated at par with expected or anticipated "service
rights" to prevent the Government Servant from encashing such
leave salary benefits already accrued in his account."
12. In fact, Rules 7 to 12 of the Tamil Nadu Leave Rules, 1933,
contain the statutory provisions for earned leave. It could be seen from the
aforesaid provisions that the leave account of every permanent Government
Servant shall be credited with earned leave, not exceeding the maximum
limit of 240 days. The said rules further provide that if the leave standing to
the credit of the Government Servant is not taken within a year as per the
Service Rules, it may be encashed or accumulated. The accumulated leave
may be availed by the Government Servant during his tenure of service or at
the time of retirement or leaving the employment which obviously means
that the right of the Government Servant to receive same stands vested with
him during that period itself which he can utilize at anytime he chooses.
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W.A.No.807 of 2021
13. The Hon'ble Supreme Court of India in "State of Jharkhand -vs-
Jitendra Kumar Srivastava" reported in [(2013) 12 SCC 210] has made it
abundantly clear that leave encashment cannot be taken away without any
statutory provision. In short, 'earned leave' which is created by statute,
partakes the character of an emolument protected as a right to property of
the concerned Government Servant under Article 300-A of the Constitution.
14. Therefore, it is clear that a Government Servant, whose service is
either terminated by notice or has been compulsorily retired from service as
a measure of punishment and where the service of such Government Servant
has been extended beyond the date of superannuation, is certainly entitled
for encashment of leave salary.
15. As regards entitlement of gratuity and pension is concerned, even
the respondent has not sought for and being dismissed from service, the
respondent is not entitled to the same.
16. In view of the above, we are of the opinion that the order of the
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learned single Judge giving direction to the appellants to settle the payment
towards GPF and Gratuity to the respondent, cannot be sustained except to
the extent of payment of both earned leave and unearned leave salary.
17. Accordingly, the Writ Appeal stands partly allowed. The
appellants are directed to disburse the payment towards leave encashment of
salary both earned and unearned leave of the respondent, within a period of
eight weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected CMP is closed.
(P.S.N.,J.) (K.R.,J.)
27.07.2021
Index:Yes/No
suk
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W.A.No.807 of 2021
PUSHPA SATHYANARAYANA, J.
and
KRISHNAN RAMASAMY, J.
suk
W.A.No.807 of 2021
27.07.2021
http://www.judis.nic.in
