Madras High Court
J.Baskaran vs The Principal Secretary To Govt on 9 February, 2022
W.P.No.8316 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2022
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.8316 of 2011
J.Baskaran ...Petitioner
Vs
1.The Principal Secretary to Govt.,
Transport Department,
Fort St. George, Chennai.
2.The Managing Director,
State Express Transport Corporation,
Pallavan Saalai, Chennai. ...Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records in
pursuant to the impugned orders passed by the 2nd respondent in Letter
No.002233/WA1/SETCTN/08 dated 06.09.2010 and Letter No.
002233/WA1/SETC/2008 dated 21.01.2011 and quash the same and
consequently direct the respondents to pay the encashment of unearned
leave on private affairs to the petitioner based on the Government Order in
Letter No.37568/BPE/2006 dated 28.01.2008 with interest at the rate of
12% per annum for belated payment.
1/9
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W.P.No.8316 of 2011
For Petitioner : Mr.R.Prem Narayan
For R1 : Mr.Veda Bagath Singh,
Special Government Pleader
For R2 : No Appearance
ORDER
The petitioner herein, who was employed as a Company Secretary in
the second respondent Corporation, is aggrieved against the orders of the
respondent in denying encashment of unearned leave on private affairs.
2. The issue as to the entitlement of an employee of the respondent
Corporation for encashment of unearned leave on private affairs has already
been dealt with by an Hon'ble Division Bench of this Court in the case of
The Tamil Nadu State Transport Corporation (Kumbakonam) Limited
and others Vs S.Venugopal and others and in its order dated 27.03.2018
passed in W.A(MD) Nos.939 to 944 of 2017, etc., holding that the
employees of the Corporation will not be entitled for such encashment. The
relevant portion of the order reads as follows:-
"7.It is an admitted fact that G.O.Ms.No.488,
Finance (Pension) Department, dated 12.08.1996
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W.P.No.8316 of 2011
issued by the State Government did not extend the
benefit of encashment of unearned leave on private
affairs at the time of retirement to the State
Government undertakings or statutory bodies etc
and such benefit was extended to the Government
servants and the maximum period was stipulated as
90 days. Thus, by virtue of G.O.Ms.No.488, Finance
(Pension) Department, dated 12.08.1996, the
respondents/writ petitioners cannot make a claim
for the encashment of the unearned leave on private
affairs.
8.The problem arose on account of a letter,
dated 28.01.2008. Admittedly, the Government
order cannot superseded by a Government letter,
which has been issued by the Secretary of the
Government. At the best, it is advisory and not
mandatory in which, a clarification was issued that
the scheme of encashment of unearned leave on
private affairs ordered in G.O.Ms.No.488, Finance
(Pension) Department, dated12.08.1996 may also
be extended of employees of statutory bodies and
the State Government undertakings. It appears that
a thorough exercise was not undertaken by the
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W.P.No.8316 of 2011
Finance Department before issuing the Clarificatory
Letter, dated 28.01.2008. Subsequently, it appears
that the matter was brought to the knowledge of the
Finance Department, the Secretary to the
Government of Tamil Nadu and appropriate
clarification was issued by the Government on
15.02.2012, whereby, making it clear that if a State
Public sector undertaking has such a provision in
their Regulations and Service Rules, they may
continue to do so. In the said Government letter, in
paragraph No.3, the Government specifically took
note of the fact that few State Public Sector
Undertakings have extended the benefit of
encashment of Unearned Leave on Private Affairs to
their employees, even though there was no provision
in their services rules for extension of such benefit
and seek later orders for ratification from the
Government. That apart, in paragraph No.4(ii), the
Government had specifically clarified that the
scheme should not be extended to the employees of
State Public Sector Undertakings, whose Service
Rules did not contain the provision for encashment
of unearned Leave on private affairs.
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W.P.No.8316 of 2011
9.Thus the mistake committed by the
Government in issuing a letter, dated 28.01.2008,
stood and appropriately clarified by the Finance
Department. In the interregnum ie., in the year
2010, the Board of the appellants/Transport
Corporation placed the Government Order, dated
28.01.2008 for consideration and the decision taken
in the meeting held on 15.06.2010 states “recorded
for implementation”. The fact remains that though
such resolution was passed, the same remained un-
mplemented and well before that could take place,
the Government had clarified that such scheme will
not apply to State Public Sector Undertakings
whether there is no Service Rule or Regulation to
that effect. Therefore, reliance placed on resolution
by the learned counsel for the respondents/writ
petitioners is self-serving, it is more so, because the
respondents/writ petitioners, who have came
forward before this Court claiming the benefits are
all persons in the Managerial/Supervisory cadre.
10.Insofar as the decision in the case of Tamil
Nadu Tata Plantation Corporation Limited is
concerned, we find that the case is factually
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W.P.No.8316 of 2011
different and taking note of the conduct of the
respondents in the said case, the Division Bench
had issued the direction. In any event, we find that
the correctness of the said decision has been
challenged before the Honourable Supreme Court
and stay of the Judgment has been granted in
S.L.P.No.23510-23513/2016, dated 14.12.2016.
11.As noticed above, there is a separate
Service Rule for the employees of the
appellants/Transport Corporation. Annexure-II of
the common Service Rules deals with Unearned
Leave and on perusal of the said Rules, we find that
there is no such Leave Rule called as unearned
leave on private affairs. Thus, unless and until, such
a leave is contemplated under the Service Rule, the
question of encashment does not arise. It is to be
noted that all the respondents/writ petitioners have
all served in the appellants/Transport Corporation
and were bound by the Service Rules framed by the
Corporation. Therefore, at this distant point of time,
after they attained the age of superannuation, the
question of claiming such a benefit does not arise."
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W.P.No.8316 of 2011
3. The aforesaid extract is self explanatory. Since the Hon'ble Division
Bench has already held that the employees of the Transport Corporation will
not be entitled for encashment of unearned leave on private affairs, I do not
find any infirmity in the impugned order. Accordingly, the Writ Petition
stands dismissed. No costs.
09.02.2022
Index:Yes/No
Internet: Yes/No
Speaking order/Non-speaking order
hvk
To
1.The Principal Secretary to Govt.,
Transport Department,
Fort St. George, Chennai.
2.The Managing Director,
State Express Transport Corporation,
Pallavan Saalai, Chennai.
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W.P.No.8316 of 2011
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W.P.No.8316 of 2011
M.S.RAMESH,J.
hvk
W.P.No.8316 of 2011
09.02.2022
https://www.mhc.tn.gov.in/judis
