Madras High Court

K.Indrasekaran vs The Secretary To Government on 4 January, 2024

Author: Battu Devanand

Bench: Battu Devanand

                                                                              W.P.No.27804 of 2017

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 04.01.2024

                                                     Coram:

                             THE HONOURABLE MR.JUSTICE BATTU DEVANAND
                                           W.P.No. 27804 of 2017
                                                    and
                                       W.M.P.Nos.29790 & 29791 of 2017

                     K.Indrasekaran
                     Lab Supervisor
                     Rajiv Gandhi Govt. General Hospital
                     Chennai – 600 003.                                                       ...
                     Petitioner

                                                       Vs.

                     1.The Secretary to Government
                       Health and Family Welfare Department
                       Secretariat, Chennai – 600 009.

                     2.The Director of Medical Education,
                       Kilpauk,
                       Chennai – 600 010.

                     3.The Dean,
                       Rajiv Gandhi Govt. General Hospital,
                       Chennai – 600 003.                                      ...
                     Respondents
                     PRAYER : Writ Petition filed under Article 226 of the Constitution of
                     India, praying to issue a Writ of Certiorarified Mandamus or any other
                     Writ, order or direction calling for the records relating to the impugned
                     order of the 1st respondent issued in Letter No.37250/L-1/2012-5 H&FW

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                     1/10
                                                                                   W.P.No.27804 of 2017

                     Department, dated 21.08.2017 and quash the same, consequently direct
                     the 3rd respondent to sanction and disburse the Special Provident Fund,
                     Encashment of Earned Leave and Private Affairs at the credit of the
                     petitioner within a reasonable period.

                                  For petitioner    : Mr.T.Ranganathan

                                  For Respondents : Mr.L.S.M.Hasan Fizal
                                                    Additional Government Pleader


                                                        ORDER

This Writ Petition impugns the letter dated 21.8.2017 issued by

the first respondent, in and by which, the petitioner has been denied his

retiral/terminal benefits payable to him under Rule 21 of the Tamil Nadu

Pension Rules, 1978, on the ground that he has been inflicted with the

punishment of removal from service.

2.The brief facts leading to the institution of this Writ Petition

could be stated thus:

2.1. The petitioner was initially appointed as Pharmacist

in 1971 in Royapettah Hospital and he was promoted as Lab Supervisor

in the year 1986. In 1993, he was transferred and posted at Rajiv Gandhi

Government General Hospital. He was on leave without pay from

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01.04.1997 to 09.11.1997 and after completion of the leave period, he

joined duty on 10.11.1997.

2.2. While so, he was issued with a charge memo under

Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)

Rules, on 08.12.1997, which, according to the petitioner, was

communicated to him only on 13.12.1998 i.e., nearly after a year. An

Enquiry Officer was appointed on the same day of the charge memo. The

Enquiry Officer conducted an ex parte enquiry and held that the charges

are proved. According to the petitioner, the Enquiry Officer's report was

never served on him and it was pasted on his door.

2.3. Subsequently, on 05.01.1999, based on the report of

the Enquiry Officer, the 3rd respondent imposed the punishment of

removal from service on the petitioner, which order was challenged by the

petitioner before the second respondent on 09.03.2011 by way of an

appeal in pursuance of the order dated 10.02.2011 passed by this Court

in W.P.No.8857/2009. The said appeal preferred by the petitioner

challenging the order of removal from service, was also rejected by the

second respondent vide proceedings dated 14.09.2011.

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2.4. Thereafter, on two dates viz., 04.05.2017 and

10.08.2017, the petitioner addressed representations to the third

respondent seeking sanction of General Provident Fund, Special

Provident Fund and encashment of Earned Leave and Private Affairs.

2.5. The first respondent, vide letter dated 21.08.2017,

turned down the request of the petitioner on the ground that he has

already been removed from service and hence, he is not entitled to the

benefits sought by him.

2.6. The said communication dated 21.08.2017 of the

first respondent is put to challenge in this Writ Petition. Further, the

petitioner seeks a Mandamus too, to the third respondent to sanction and

disburse General Provident Fund, Special Provident Fund and

encashment of Earned Leave and Private Affairs at his credit.

3. Heard the learned counsel for the petitioner and the

learned Additional Government Pleader appearing for the respondents.

4. Though this Writ Petition is of the year 2017, till https://www.mhc.tn.gov.in/judis

date, no counter affidavit has been filed by the respondents.

5. The short issue that arises for consideration in this

Writ Petition is whether the petitioner is entitled to sanction of General

Provident Fund, Special Provident Fund and encashment of Earned Leave

and Private Affairs, notwithstanding the fact that he has been removed

from service.

6. The aforesaid issue has already been decided in a

catena of decisions of this Court and also the Hon'ble Supreme Court.

Suffice it to advert to the judgment of the Division Bench of this Court in

the case of Secretary to the Government, Revenue Department,

Chennai-9 and 2 others vs. K.Palaniyandi (W.A.(MD). No.105 of

2019, decided on 31.07.2019), wherein, it has been held in no uncertain

terms that an employee, who is removed from service, cannot be deprived

of the benefits which he is legitimately entitled to. The relevant portion of

the said judgment is extracted below for ease of reference:

''23.In a recent decision of the Division Bench reported in 2019-Writ. L.R.825 [State of Tamil Nadu vs. V.Mahalingam], the same issue was considered and it has

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been observed at paragraph 5 as follows:-

5.Before proceeding further, it would be necessary to examine the nature and legal basis for payment of 'earned leave' to Government Servants.

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 in advance in two instalments of fifteen days each on the first day of January and first day of July every year. The leave at the credit of a Government Servant at the close of the previous half year shall be carried forward to the next half year, subject to the condition that the leave so carried forward plus the credit for the half year do not exceed 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

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retirement or leaving the employment which obviously means that the right of the Government Servant to receive the same stands vested with him during that period itself which he can utilize at anytime he chooses. The Hon'ble Supreme Court of India in State of Jharkhand -vs- Jitendra Kumar Srivastava [(2013) 12 SCC 210] has made in abundantly clear that leave encashment cannot be taken away wihtout any statutory provision. In short, 'earned leave' which is creaated 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. It has been provided in Rule 86(a)(i) of the Fundamental Rules that the Competent Authority shall sue motu draw and disburse the cash benefits and encashement of the earned leave at the credit of the Government Servant without formal sanction orders on the date of retirement or the date of termination of extension of service, as the case may be. The removal of a Government Servant from service as a measure of punishemnt of conclusion of disciplinary proceedings after extending his service on attained the age of superannuation for that purpose, would naturally amount to 'termination of

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extension of service', and in terms of that rule, the Competent Authority on that date ought to have suo motu disbursed the cash benefit and encashment of earned leave, if the same had not been availed by the Petitioner earlier. The Second Respondent has wrongfully refused to pay the earned leave to the Petitioner, which he was legitimately entitled to receive, even on that date.''

7. In view of the foregoing, the impugned letter dated

21.08.2017 of the first respondent, does not have legs to stand and it is

accordingly quashed and the third respondent is directed to sanction and

disburse General Provident Fund, if eligible, Special Provident Fund and

encashment of Earned Leave and Private Affairs to the petitioner, within

a period of two months from the date of receipt of a copy of this order.

In fine, this Writ Petition stands allowed. Connected

miscellaneous petitions are closed. Costs made easy.

04.01.2024 Index:Yes/No Neutral Citation:Yes/No Speaking order/Non-speaking order

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apd

1.The Secretary to Government Health and Family Welfare Department Secretariat, Chennai – 600 009.