Telangana High Court
Telangana State Road Transport ... vs P.Shankar on 25 February, 2025
*THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
*THE HON'BLE SMT. JUSTICE RENUKA YARA
+ WRIT APPEAL Nos.69, 138, 781 of 2019; 862 and
1122 of 2024
% 25-02-2025
# Telangana State Road Transport Corporation and another.
... Appellants
vs.
$ P.Shankar
... Respondent
!Counsel for the appellants in W.A.Nos.69 of 2019, 138 of 2019, 862 of
2024 and 1122 of 2024: Sri G.Vidya Sagar,
learned Senior Counsel appearing for
Sri Shanthi Bhushan Rao,
Sri Chandra Shekar and
Sri Anurag,learned Standing Counsel for
TSRTC
.
^Counsel for respondent No.1 in W.A.No.862 of 2024 and for the sole
respondent in W.A.No.1122 of 2024:
Sri V.Narasimha Goud
^Counsel for the respondent in W.A.No.69 of 2019, for the respondent
in W.A.No.138 of 2019 and for the appellant in W.A.No.781 of 2019:
Sri P.Govinda Rajulu
<Gist :
>Head Note :
? Cases referred
1. 2014 SCC OnLine P&H 15012 : AIR 2014 P&H 147
2. 2019 SCC OnLine Jhar 3221
3. (1971) 1 SCC 85 : AIR 1971 SC 530
4. (1985) 1 SCC 523 : AIR 1985 SC 553
5. (1985) 1 SCC 429 : AIR 1985 SC 356
6. AIR 1961 SC 298
7. AIR 1968 SC 1053
8. (1971) 2 SCC 330 : AIR 1971 SC 1409
9. (2012) 3 Mah LJ 126
10. (2013) 12 SCC 210
11. (1994) 2 SCC 240
2
THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
AND
THE HON'BLE SMT. JUSTICE RENUKA YARA
WRIT APPEAL Nos.69, 138, 781 of 2019; 862 and
1122 of 2024
COMMON JUDGMENT:
(Per the Hon'ble the Acting Chief Justice Sujoy Paul)
Sri G.Vidya Sagar, learned Senior Counsel appearing for
Sri Shanthi Bhushan Rao, Sri Chandra Shekar and Sri Anurag,
learned Standing Counsel for the Telangana State Road Transport
Corporation (TSRTC), for the appellants in W.A.Nos.69 of 2019,
138 of 2019, 862 of 2024 and 1122 of 2024; Sri V.Narasimha
Goud, learned counsel for respondent No.1 in W.A.No.862 of 2024
and for the sole respondent in W.A.No.1122 of 2024; and
Sri P.Govinda Rajulu, learned counsel for the respondent in
W.A.No.69 of 2019, for the respondent in W.A.No.138 of 2019 and
for the appellant in W.A.No.781 of 2019.
2. W.A.Nos.69 of 2019, 138 of 2019, 862 of 2024 and 1122 of
2024 are filed by TSRTC (hereinafter referred to as, 'the employer')
and W.A.No.781 of 2019 is filed by the employee.
3. The basic question which needs consideration is whether an
employee, who is inflicted with the punishment of removal from
service, is entitled to get the benefit of leave encashment.
4. The specific stand of the employer is that in view of
Regulation 50(B) of The Employees (Leave) Regulations, 1963
(hereinafter referred to as, 'the Regulations'), the removed
employee is not entitled to get the benefit of leave encashment. In
W.A.No.781 of 2019 filed by the removed employee, the singular
grievance is that the learned Single Judge was kind enough in
issuing a direction to grant the benefit of leave encashment, but
did not grant him 6% interest, whereas the said benefit was
granted in other connected matters like in the impugned order in
W.A.No.69 of 2019.
5. Sri G.Vidya Sagar, learned Senior Counsel for the employer,
by taking this Court to Regulation 50(B) of the Regulations,
submits that this provision nowhere provides the benefit of leave
encashment to an employee who suffered the punishment of
removal from service. Although, a Division Bench of the erstwhile
High Court of Andhra Pradesh and Telangana in W.A.No.640 of
2007 considered the said Regulation 50(B) of the Regulations, it
only opined that it does not contain any prohibition for
encashment of leave in case of employees who were removed from
service and therefore the said judgment cannot be pressed into
service. He placed reliance on a Full Bench judgment of the High
Court of Punjab and Haryana in Punjab State Civil Supplies
Corporation Limited v. Pyare Lal 1 and urged that the Full Bench
revisited its previous judgment and opined that the leave
encashment cannot be granted in cases of employees who were
removed from service. Lastly, the learned Senior Counsel placed
reliance on the judgment of High Court of Jharkhand in Dr.
Shailendra Kumar Sinha v. State of Jharkhand 2.
6. Per contra, the learned counsel for the removed employees
supported the order of the learned Single Judge, except in
W.A.No.781 of 2019, wherein interest of 6% was not granted for
belated payment of leave encashment, whereas such interest was
granted to other similarly situated removed employees.
7. Parties confined their arguments to the extent indicated
above.
8. We have bestowed our anxious consideration on the rival
contentions and perused the record.
9. This is an admitted fact that the removed employees
approached the Court by filing writ petitions for grant of the
benefit of leave encashment. The learned Single Judge has
2014 SCC OnLine P&H 15012 : AIR 2014 P&H 147
2019 SCC OnLine Jhar 3221
recorded the findings in one of the writ petitions i.e.,
W.P.No.24687 of 2014, dated 19.09.2018, as under:
"4. In view of the decision of Division Bench, the stand of
respondents that petitioner is not entitled to claim
encashment of Earned Leave accrued to him while he was in
service is not valid. Writ Petition is accordingly allowed.
Respondents are directed to sanction the amount towards
earned leave accrued to the account of petitioner while he
was discharging his duties and responsibilities in the
respondent Corporation. The entire exercise shall be
completed and amount due shall be released within a period
of eight weeks from the date of receipt of copy of this order.
5. Learned counsel for petitioner claims that illegally
encashment of earned leave is denied to the petitioner for no
fault of him and, therefore, he is entitled to interest from the
date of amount due till the date of payment. Said claim is
opposed by the learned counsel for respondents contending
that writ petition is filed after six years of retirement and
there are clear latches.
6. Having regard to the law laid down by the Division
Bench, employee is entitled to earned leave encashment as a
matter of course even if he is removed from service and,
therefore, petitioner was erroneously denied encashment
when it was due. However, petitioner has not invoked the
jurisdiction of this Court immediately after cause of action
arose to him. Having regard to these aspects balancing the
respective contentions, respondents are directed to pay
interest at the rate of 6% p.a., on the amount due from the
date of institution of writ petition till the date of payment.
Pending miscellaneous petitions shall stand closed."
(Emphasis Supplied)
10. This is equally clear that the learned Single Judge has based
its order on a Division Bench judgment delivered in W.A.No.640 of
2007, dated 13.04.2015. The Division Bench in the said writ
appeal recorded the findings as under:-
"It is not in dispute that the first respondent was
removed from service and had 77 days earned leave to his
credit at the time of removal from service. We have perused
Rule 50 (B) of (Leave) Regulations of A.P.S.R.T.C. as
applicable to its employees and it does not contain any
prohibition for encashment of leave in case of
employees, who were removed from service. Hence, we
are satisfied that the view taken by the Labour Court as
confirmed by the learned single Judge is correct and there is
no merit in the writ appeal.
Accordingly, the writ appeal is dismissed. No order as
to costs.
Miscellaneous petitions pending in the case, if any,
also stand disposed of."
(Emphasis Supplied)
11. A bare perusal of the finding given by the Division Bench in
the aforesaid judgment clearly shows that the Regulation 50(B) of
the Regulations was considered in relation to the employee who
was removed from service. A careful reading of Regulation 50(B)
of the Regulations shows that it does not contain any prohibition,
embargo or disentitlement in relation to the removed employees.
12. So far the Full Bench judgment of the High Court of Punjab
and Haryana in Punjab State Civil Supplies Corporation
Limited (supra) is concerned, it is apt to reproduce paragraph
Nos.5 and 11, which read thus:-
"5. Since Rule 8.21(aa) provides withholding the amount of
leave encashment when disciplinary and/or criminal
proceedings are pending against an employee, therefore, the
amount of leave encashment can be withheld to meet out the
possibility of recovery from such amount.
xxx
11. In view thereof, since the right to withhold leave
encashment is part of the Statutory Rules, it satisfies the
test laid down by the Supreme Court. Thus, we approve the
judgment in Harbhajan Singh Riar's case while overruling the
view taken in Gurdial Singh's case (supra). The judgments in
two other cases i.e. B.S. Gupta's case (supra) and Dayal
Singh's case (supra), pertain to Haryana. Since, the Rules
applicable to Haryana, have not been brought to our notice,
we leave the said matter open, to be adjudicated at an
appropriate stage."
(Emphasis Supplied)
13. A conjoint reading of paragraph Nos.5 and 11 of the
aforesaid judgment leaves no room for any doubt that the Full
Bench revisited its previous order because the statutory provision,
namely Rule 8.21(aa), has escaped notice of the previous Bench.
A plain reading of that provision shows that upon imposition of
punishment in a disciplinary/criminal proceedings, there was a
bar/enabling provision and leave encashment could be withheld.
Thus, there was an express provision for withholding the leave
encashment. In this backdrop, the Full Bench has taken a
different view in the said case, whereas in the instant case, there
exists no such clear bar or embargo which disentitles the removed
employees from the benefit of leave encashment. The leave
encashment is a benefit which is earned by the employee during
his service. After removal from service, the previous benefits
earned are ordinarily not taken away, unless the statutory rule so
prescribes. For example, if an employee is visited with
punishment of dismissal or removal from service, in many
departments the relevant pension rules provide that such
dismissal and removal will not make him entitled to get the benefit
of retiral dues. In absence thereof, as rightly held by the High
Court of Jharkhand in Dr. Shailendra Kumar Sinha (supra), the
leave encashment is a 'property' under Article 300A of the
Constitution of India. Whether such benefits fall within the ambit
of Article 300A of the Constitution of India or not is also not
unknown to service jurisprudence.
14. Property in legal sense means an aggregate of rights which
are guaranteed and protected by law. It extends to every species of
valuable right and interest, more particularly, ownership and
exclusive right to a thing, the right to dispose of the thing in every
legal way, to process it, to use it and to exclude everyone else from
interfering with it. The dominion or indefinite right of use or
disposition which one may lawfully exercise over particular things
or subjects is called "property". The exclusive right of possessing,
enjoying and disposing of thing is property in legal parameters.
Therefore, the word "property" connotes everything which is
subject of ownership, corporeal or incorporeal, tangible or
intangible, visible or invisible, real or personal; everything that has
an exchangeable value or which goes to make up wealth or estate
or status. Property, therefore, within constitutional protection
denotes group of rights inhering citizen's relation to physical
thing, a right to possess, use and dispose of it in accordance with
law. The property is the most comprehensive of all terms which
can be used, in as much as it is indicative and descriptive of every
possible interest which the party can have. The term "property"
has a most extensive signification and according to legal
definition, consists of free use, enjoyment and disposition by a
person of all his acquisitions without any control of diminution,
save only by the laws of the land.
15. The Apex Court on different occasions had considered the
scope and ambit of property. In Madhav Rao Scindia v. Union of
India 3, opined that Prievy Purse payable to ex-rulers is property.
In Nagraj, K v. State of A.P. 4, the Apex Court opined that right of
person to his livelihood is property which is subject to rules of
retirement. In State of Kerala v. Padmanabhan 5, the Apex Court
opined that right of pension is property under the Government
service Rules. In Madhav Rao Scindia v. State of M.P. 6 and
(1971) 1 SCC 85 : AIR 1971 SC 530
(1985) 1 SCC 523 : AIR 1985 SC 553
(1985) 1 SCC 429 : AIR 1985 SC 356
AIR 1961 SC 298
State of M.P. v. Ranojirao 7, the Apex Court opined that property
in the context of Article 300A includes 'money', salary which has
accrued pension, and cash grants annually payable by the
Government; pension due under Government Service Rules; a
right to bonus and other sums due to employees under statute.
This view was also taken in Deokinandan v. State of Bihar 8. The
Bombay High Court in Shapoor M. Mehra v. Allahabad Bank 9,
opined that retiral benefits including pension and gratuity
constitute a valuable right in property. In Deokinandan (supra)
the Apex Court opined as under:
"(i) The right of the petitioner to receive pension is
property under Article 31(1) and by a mere executive order
the State had no powers to withhold the same. Similarly, the
said claim is also property under Article 19(1)(f) and it is not
saved by sub-article (5) of Article 19. Therefore, it follows
that the order denying the petitioner right to receive pension
affects the fundamental right of the petitioner under Article
19(1)(f) and 31(1) of the Constitution and as such the writ
petition under Article 32 is maintainable."
(Emphasis Supplied)
16. In State of Jharkhand v. Jitendra Kumar Srivastava 10, it
was held that such dues fall within the ambit of property under
Article 300A of the Constitution and in absence of any statutory
provision, it cannot be taken away, withdrawn nor employee can
AIR 1968 SC 1053
(1971) 2 SCC 330 : AIR 1971 SC 1409
(2012) 3 Mah LJ 126
(2013) 12 SCC 210
be deprived from the said benefits. Similar is the view taken by
the High Court of Jharkhand and it was poignantly held that such
benefit even cannot be taken away by any executive instructions.
17. We respectfully agree with the view taken by the Division
Bench in W.A.No.640 of 2007. In absence of any clear prohibition,
bar or embargo for not paying the benefit of leave encashment, we
are unable to countenance the stand of the employer that removal
forfeits the benefit of leave encashment.
18. In W.A.No.781 of 2019, the appellant has shown interest in
getting the interest. This is settled that if the amount is due to an
employee and it is paid belatedly for the reasons solely
attributable to the employer, the employee is entitled to get the
benefit of interest (See Union of India v. Justice
S.S. Sandhawalia 11). The appellant herein therefore entitled to get
6% interest. He is entitled for yet another reason that in the case
of the other similarly situated removed employees in the
connected matters, the learned Single Judge has given 6%
interest. Thus, the appellant in W.A.No.781 of 2019 will get the
benefit of 6% interest on payment of leave encashment till the date
of actual payment.
(1994) 2 SCC 240
19. Accordingly, W.A.Nos.69 of 2019, 138 of 2019, 862 of 2024
and 1122 of 2024 are dismissed and W.A.No.781 of 2019 is
partly allowed to the extent indicated above. No order as to
costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________
SUJOY PAUL, ACJ
__________________________
RENUKA YARA, J
25.02.2025
Note: L.R. copy be marked.
sa/vs
