Madras High Court
A.Dhanakodi vs The Joint Registrar Of ... on 27 April, 2022
W.P.No.6677 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2022
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.6677 of 2021
A.Dhanakodi ... Petitioner
Vs.
1.The Joint Registrar of Co-operative Societies,
Krishnagiri Region, Krishnagiri.
2.The Deputy Registrar of Co-operative Societies,
Hosur Circle, Krishnagiri. ... Respondents
PRAYER: This Writ Petition has been filed under Article 226 of the
Constitution of India, praying for the issuance of a Writ of Mandamus to
direct the respondents to forth with pay the Encashment of Earned Leave,
Unearned Leave on Private Affairs, Special Provident fund and General
Provident fund with interest at the rate of 12% per annum.
For Petitioner : Mr.M.S.Palaniswamy
For Respondents : Mrs.Anitha
Special Government Pleader
ORDER
The relief sought for in the writ petitioner is to direct the
respondents to forth with pay the Encashment of Earned Leave, Unearned
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W.P.No.6677 of 2021
Leave on Private Affairs, Special Provident fund and General Provident
fund with interest at the rate of 12% per annum.
2.Brief facts of the case:
The petitioner was entered into service in the Co-operative
Department as junior assistant on 19.01.1987 and subsequently promoted as
Co-operative Sub Registrar and reached the age of superannuation on
30.04.2019. One day prior to the retirement, the first respondent issued
suspension order dated 29.04.2019 by suspending the petitioner from
service on the ground that the charges under Rule 17(b) are pending against
him, but no disciplinary proceedings were concluded. Hence, the petitioner
submitted various representations to the respondents requesting to pay the
eligible retirement benefits i.e., encashment of Earned Leave, Unearned
Leave, Special Provident Fund and General Provident Fund. Further, the
petitioner has sent a last reminder dated 02.02.2021 to the respondents, but
no orders have been passed. Hence, the writ petition.
3.The learned counsel for the petitioner would submit that the
petitioner has attained the age of superannuation on 30.04.2019 and prior to
his retirement the first respondent has issued order of suspension from the
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W.P.No.6677 of 2021
service on the petitioner on the ground that charges under Rule 17(b) of the
Tamil Nadu Civil Service (Discipline & Conduct) Rules, are pending
against him, but the order of suspension is against the G.O.Ms.No.144,
Personnel and Administrative Reforms (N) Department dated 08.06.2007.
In the said G.O, it is specifically stated that “no order of suspension can be
passed on the date of the retirement. It is mandatory that if at all a
suspension order will have to be passed it may be done atleast three months
before the date of retirement.” He would further submit that the petitioner
was under suspension for the past three years without any disciplinary
proceedings. Hence, the petitioner made a representation to pay the eligible
retirement benefits encashment viz., Earned Leave and Unearned Leave on
private affairs, Special Provident Fund and General Provident Fund.
However, till now no orders have been passed. Further, he would rely upon
the decision of this Court in W.P.(MD).No.22823 of 2018, dated 13.12.2018
and W.P.No.35328 of 2019, dated 06.01.2020. In the light of the afore said
decisions of this Court, the learned counsel for the petitioner seeks to direct
the respondent to consider and pass appropriate orders for payment of such
eligible terminal benefits to the petitioner.
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W.P.No.6677 of 2021
4.When the matter was taken up for hearing on last occasion there
were no instructions to the Special Government Pleader from the
respondents and hence, this Court had directed the second respondent to
appear before this Court. Today, the second respondent/Deputy Registrar of
Co-operative Societies appeared before this Court and submitted that the
first respondent is the authority to consider the request of the petitioner.
5.The learned Special Government Pleader appearing for the
respondents on instructions would submit that for the disciplinary
proceedings is pending against the petitioner, the enquiry officer was
appointed on 18.02.2022 and still the said enquiry is pending for the mis-
appropriation on issue of bogus jewel loan to 121 members to the tune of
Rs.7.02 Crores and the petitioner did not take action overdue of loans to the
tune of Rs.8,50,000/-.
6.Heard the learned counsel on either side and perused the
materials placed on record.
7.The question of entitlement of a retired Government servant to
Encasement of Leave Salary and Special Provident Fund is no longer res
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W.P.No.6677 of 2021
intergra. A Division Bench of this Court in W.A.No.207 of 2016 –
(TANGEDCO Vs. P.K.Panchaksharam) had held that the pendency of
disciplinary proceedings or criminal proceedings cannot be a bar to the
employee seeking Encasement of Leave Salary and Special Provident Fund.
The said judgment of this Court was upheld by the Hon'lble Supreme Court
in S.L.P.Civil.No.16229 of 2016 by an order dated 06.07.2017. The said
judgment has been followed by a learned Single Judge of this Court in
W.P(MD).No.17730 of 2018. Therefore, the petitioner is entitled to
Enchashment of Leave Salary and Special Provident Fund, despite the
pendency of the disciplinary proceedings.
8.In the light of the decision of the Division Bench of this Court
reported in 2019 SCC online Madras 1195 – State of Tamil Nadu
represented by the Secretary to Government, Public Works Department
and Another Vs. V.Mahalingam, this Court has held as follows:
“15.As explained in detail, we do not find anything
contained in any of the statutory provisions relied by the
learned Special Government Pleader which have the effect of
enabling the Government to withhold the encashment of the
accumulated earned leave of a Government Servant when he
attained the age of superannuation during his continuance in
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W.P.No.6677 of 2021
service pursuant to disciplinary proceedings or criminal
prosecution pending against him at that point of time.
Accordingly, we hold that in the absence of an enabling
statutory provisions to that effect, an unfair advantage cannot
be taken of a rather fortuitous situations by snatching the
frugally accumulated earned leave of a Government Servant in
a capricious manner, which remains unencashed at the time of
his attaining the age of superannuation.”
9.In view of the above, this Court is inclined to direct the
respondents to consider the representation of the petitioner for encashment
of his earned leave and all other eligible terminal benefits as per the law and
pass appropriate orders as early as possible preferably within a period of
twelve weeks from the date of receipt of a copy of this order.
10.With the above direction, this writ petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
27.04.2022
Dua
Internet:Yes
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W.P.No.6677 of 2021
To
1.The Joint Registrar of Co-operative Societies,
Krishnagiri Region, Krishnagiri.
2.The Deputy Registrar of Co-operative Societies,
Hosur Circle, Krishnagiri.
D.KRISHNAKUMAR, J.
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W.P.No.6677 of 2021
Dua
W.P.No.6677 of 2021
27.04.2022
https://www.mhc.tn.gov.in/judis
