Rajasthan High Court - Jodhpur

Sant Kumar Pal vs State And Ors (2024:Rj-Jd:9729) on 26 February, 2024

[2024:RJ-JD:9729]



      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                    S.B. Civil Writ Petition No. 2853/2015

Sant Kumar Pal
                                                                       ----Petitioner
                                       Versus
State and Ors.
                                                                    ----Respondents


 For Petitioner(s)             :    Mr. Abhishek Sharma
                                    Mr. Pradeep Singh Khichi
 For Respondent(s)             :    Mr. Rajendra Kumar for
                                    Mr. B.L. Bhati, AAG for R.1 & R.2
                                    Mr. Ajeet Singh Shekhawat
                                    Mr. Mool Singh Panwar
                                    Mr. Ramniwas for R.3
                                    Mr. Mod Singh Panwar for R.4


               HON'BLE MR. JUSTICE ARUN MONGA

Order (Oral)

26/02/2024

1. Grievance of the petitioner herein is three fold as culled out

herein below :

1. Whether the respondent No.3 college where petitioner

served for more than 20 years upto 07.07.2012 could have

withheld his gratuity on his resignation from service ?

2. Whether the respondent No.4 college was justified in

withholding Rs.1,08,000/- from his C.P.F. on the ostensible

ground that there was a penalty imposed by respondent No.4

University, for which the alleged delinquency was attributed

to the petitioner ?

[2024:RJ-JD:9729] (2of 7) [CW-2853/2015]

3. Whether the monetary benefits arising out of

encashment of terminal leave of 199 days could have been

withheld stating that being a permanent employee of the

college, petitioner is not entitled to the same ?

2. Answer to all the above questions is in negative. Let us see

how.

3. Facts of the case are not disputed, which are as below:

3.1 Vide order dated 24.12.1990, the petitioner was appointed to

the post of Lecturer (Weaving). In the year 2011, an

advertisement was issued by IICT, in which the petitioner got

selected. He sought permission for deputation for a period of three

years vide an application dated 19.05.2011 and was granted

permission for same till 2012 and again requested respondent No.

2 for extension of his lien, but no response was given. The

petitioner again submitted his application to respondent No.3 but

to no avail.

3.2 Under these compelling circumstances, the petitioner

submitted his resignation dated 07.07.2012. His resignation was

accepted from 07.07.2012 vide an order dated 06.08.2012.

Thereafter, the petitioner submitted an application claiming his

retrial benefits viz. CPF, leave encashment and gratuity under

RSR, 1951 and Pension Rules 1996. In the month of December,

the petitioner was given some part of the CPF amount, but other

benefits viz leave encashment, gratuity and CPF balance amount

were withheld without any reason and no statement about CPF

amount was given to the petitioner.

[2024:RJ-JD:9729] (3of 7) [CW-2853/2015]

3.3 Vide letter dated 15.04.2013, the petitioner was

communicated by the respondent No. 3 that the leave encashment

of the petitioner is not payable as per Rule 94 (2) of Rajasthan

Service Rules, 1995. Hence this petition.

4. In the aforesaid backdrop, I have heard the rival contentions

of learned counsels.

5. At the outset, on a Court query, learned counsel for the

respondent No.4 University draws my attention to letter dated

19.12.2012 (Annex.R.4/2) appended with the reply filed by the

University, which states as below :

"On the recommendation of Examination Committee and further approval of Hon'ble Vice Chancellor, penalty of Rs.1,08,000/- imposed on your college due to submission of Improvement marks after declaration of the result is here by waived off. This is on refererance to your above referred letter in which request has been made that students have already been appeared in the Back Exam, and therefore revision of marks are not required."

6. A bare perusal of which shows that the penalty imposed on

the college was subsequently waived by the University.

7. The question No.2framed herein above, thus, needs no

adjudication in view of the waiver of the penalty as the

consequences of the same should enure to the benefit of the

petitioner, and needless to say, the amount of Rs.1,08,000/- has

to be therefore refunded to him.

8. As regards question No.1 qua gratuity, the defence taken by

the respondent No.3 in para 13 of the reply is that since the

petitioner resigned and did not retire from service, therefore, is

not entitled to receive gratuity and leave encashment. One does

not know as to where from such a consequence has been drawn

[2024:RJ-JD:9729] (4of 7) [CW-2853/2015]

by respondent No.3 as the same flies in the face of express

statutory provision contained in Section 4(1)(b) of the Payment of

Gratuity Act, 1972 (for short, 'Act of 1972'). There is no gain

saying to mention that the said provision is applicable to the

college. For ready reference, Section 4(1)(b) of the Act of 1972 is

reproduced herein below:

"Section 4 Payment of Gratuity (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,--

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease:

Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement:

[Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] Explanation.-- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement."

9. A perusal of the above leaves no manner of doubt that once

an employee has rendered uninterrupted service of more than five

years, it becomes his right to claim gratuity as per the act abid.

In this context, reference may be had to the Apex Court Judgment

in Rajasthan State Road Transport Corporation Ltd. & Ors.

[2024:RJ-JD:9729] (5of 7) [CW-2853/2015]

Vs. Smt. Mohani Devi & Anr. : Civil Appeal No.2236/2020.

Relevant para No.13 of the judgment is extracted herein below :

"13. The learned counsel for the respondent would submit that even if it is a case of resignation the deceased husband of the respondent was entitled to the payment of gratuity as he had put in the qualifying service. The learned counsel for the appellant would contend that the gratuity amount had been paid. In that regard, the reference made to para 9 of the writ appeal filed before the High Court would however indicate that though reference is made to the payment disbursed to the respondent's husband while accepting the resignation, the same does not disclose that the gratuity amount has been paid. Further, in the appeal filed before this Court the appellants have sought to justify the non-payment of the gratuity as the husband of the respondent had resigned from service. As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well. In that view, if the gratuity amount has not been paid to the respondent's husband, the liability to pay the same would subsist and the respondent No.1 will be entitled to receive the same in accordance with the provisions of the Act. In that regard it is directed that the appellants shall accordingly calculate the gratuity and pay the same to the respondent No.1, if already not paid. Such payment shall be made within four weeks from this date."

10. Adverting now to the question No.3 i.e. with regard to the

encashment of the terminal leave, the ostensible ground on which

it has been withheld is Rule 94(2) of Rajasthan Service Rules,

1951, the same is also extracted herein below for ready

reference :

"94. Admissibility of Terminal Leave. :

(1) ...

[2024:RJ-JD:9729] (6of 7) [CW-2853/2015]

(2) A temporary Government servant, who resigns on his own may at the discretion of the sanctioning authority be granted terminal leave not exceeding half the amount of privilege leave at his credit subject to a maximum of 150 days."

11. The very opening words of the aforesaid provision start with

the word, a temporary government servant. Needless to say, that

a protection is provided to a temporary government servant, in

the event, even if he resigns from service on his own, then it is at

the discretion of the employer to accord him the benefit of

terminal leave, subject of course to the maximum of 150 days.

12. It is rather preposterous to canvas, as has been done by

learned counsel for respondent No.3 in course of his arguments,

that the petitioner being a permanent employee, cannot seek

parity with a temporary employee. It is rather perplexing, that if

such an argument is to be accepted, the same would result in a

patent fallacy, which would amount to giving a privilege to a