Tripura High Court
Shri Pabindra Tripura And Another vs The State Of Tripura And 3 Ors on 9 April, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 772 of 2024
Shri Pabindra Tripura and Another
---Petitioner(s)
Versus
The State of Tripura and 3 Ors.
---Respondent(s)
WP(C) 774 of 2024
Smt. Kabita Sarkar and 3 Others
---Petitioner(s)
Versus
The State of Tripura and 3 Ors.
---Respondent(s)
WP(C) 775 of 2024
Smt. Dipali Deb Sen and 3 Others.
---Petitioner(s)
Versus
The State of Tripura and 3 Ors.
---Respondent(s)
For Petitioner(s) : Mr. P Roy Barman, Sr. Advocate.
Ms. S. Debbarman, Advocate.
For Respondent(s) : Mr. SM Chakraborty, Advocate General
Mr. P. Gautam, Sr. GA.
Date of hearing and date of
judgment and order : 09.04.2025
Whether fit for reporting : Yes
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgment & Order (Oral)
Heard learned counsel appearing for the parties.
[2] At the very outset, it is represented by the counsel for the petitioners that
since the subject matter of all the writ petitions mentioned above came out the similar
facts and circumstances, all may be heard and disposed of together. Having heard so, all
the matters are clustered together as the facts involved are similar in nature and can be
disposed of a common judgment.
[3] In WP(C) 772 of 2024 & WP(C) 775 of 2025, the petitioners have urged
for leave encashment with interest @ 9% PA w.e.f. one month after retirement till the
date of payment.
[4] The brief facts of the case are that the petitioners served the respondents
and became entitled to benefit of leave encashment as at the time of retirement. Each of
the petitioners has in credit 300 days of unspent earned leave. In terms of Rule 35(2) of
the Tripura State Civil Service (Leave Rules) 1986, the petitioners became entitled to
leave encashment benefit soon after the retirement from their services. But till date the
petitioners have not been paid the benefit of leave encashment.
[5] In course of his submission, learned senior counsel for the petitioners has
contended before this court that one Niyati Saha, who retired from service on
31.01.2016 on superannuation after serving under Tripura Horticulture Corporation Ltd.
w.e.f. 01.03.1992 to 31.01.2016 was not paid Gratuity. Confronted with such situation,
she filed a writ petition being WP(C) 224 of 2018 before this court against the
Corporation Ltd. and others. In the said petition, the petitioner sought for necessary
direction upon the Tripura Horticulture Corporation Ltd. and others to cause full and
final payment with interest after determining the amount of Gratuity payable to her on
the basis of last basic pay and DA and other factors as indicated in Section 4(2) of the
Act, 1972. This court by the order dated 18.03.2019 allowed the said writ petition and
directed the respondents to release all the benefits including gratuity and other
pensionary benefits which the petitioner is entitled to and the said judgment has been
complied with.
[6] It is further submitted that the petitioners are entitled to get benefit of
unspent earned leave. The respondents have specifically and categorically represented to
the petitioner, that, they are entitled to 300 days earned leave and as such the
respondents are estopped form saying, that, the employees of THCL including the
petitioner herein are not entitled to the benefit of unspent earned leave. If the petitioner
availed the 300 days earned in their service tenure, the respondents have been under
obligation to pay the petitioner for the period during which the petitioner would have
been in earned leave as granted by the respondents. As the petitioner did not avail the
earned leave, the respondents are under obligation to make payment of the leave
encashment benefit to the petitioner. The respondents have utilized the money belonging
to the petitioner for many years and have earned interest on that amount. In view of that,
the respondents are under obligation to make payment of leave encashment benefit with
interest.
[7] Be it specifically mentioned here, that benefit of leave encashment is
nothing but payment of salary for the leave earned and credited but not availed by an
employee. An employee is entitled to leave salary for un-availed leave to a maximum
limit of 300 days. It is clear that benefit of encashment of leave is nothing but payment
of salary for the leave not availed by an employee and which is to his credit. It is well
settled provision of law, that, so far pensionary benefits are concerned, all such benefit
should be paid within one month of retirement from service, if not paid, interest is to
paid for deferred payment. Even if there is no statutory prescription for paying interest
for earned leave and there is also no administrative instruction, then also the pensioners
are entitled to interest for deferred payment of pensionary benefit, if such payment is
paid beyond one month. Leave encashment benefit is the part and parcel of pensionary
benefits.
[8] It has been further contended that, notwithstanding any express provision
regarding denial of payment of leave encashment benefit after retirement is concerned,
the petitioner is entitled to leave encashment benefit for the simple and obvious reason,
that, it is the respondents who have granted 300 days earned leave to the petitioner. As
they did not avail the earned leave, the petitioners are entitled to get the benefit; so far
unspent earned leave, is concerned. It is well settled position of law that pay and
allowances includes benefit of leave encashment, w hic is nothing but salary for the un-
availed leave to the credit of the employees of THCL.
[9] To support his case, the learned senior counsel for the petitioners has
relied upon a judgment of this court wherein the similar benefits were sought and the
court by the order dated 26.04.2024 passed in WP(C) 489 of 2023 and batch matters has
allowed the writ petition.
[10] During the course of his submission, learned senior counsel has drawn the
attention of this court to the letter dated 21.09.2024 by the respondents addressed Sri
Pabindra Tripura (one of the petitioners in WP(C) 772 of 2024). The relevant portion of
which is extracted herein below:
iii) Now the THCL with approval of the Hon'ble Chairman inform you that a
due-drawn statement of Gratuity payment for 10 years DRW service and 04
years regular term service has been framed along with 9% interest calculated
up to 30th September, 2024 from the actual date of payment deducting the
Gratuity payment already paid.
(Due-Drawn statement enclosed)
iv) Regarding Encashment of leave salary , there is no such rules incorporated
in the Memorandum and Article of Associations of THCL, 1987 neither the
erstwhile Board of Directors adopted such policies for payment of Leave
Salary.
v) Furthermore the communication of the Finance Department from the
original file Vide No.2(35)/THCL/214-15/PART-GRATUITY & LEAVE
SALARY regarding a prima-facie decision in the 74the Board of Directors
Meeting was taken to adopt Group Gratuity and Group Leave encashment
scheme of LICI subject to concurrence of the Finance Deptt, Govt. of Tripura
which clearly stated at Note No.10 that "Leave Salary may not be given to the
employees of THCL" singed by A. Dewanjee, the then Under Secretary,
Finance Department, dated 18.03.2016.
(copy of the Note Sheet enclosed)
[11] In WP(C) 774 of 2024, the petitioner no.1 is wife of the deceased
employee who served under the respondents. The petitioner nos.2, 3 and 4 are the
daughters of the deceased employee. In this petition, the petitioners are seeking to
receive leave encashment for the service rendered by the deceased Amrit Lal Sakar.
They have also approached this court by way of filing this writ petition for directing the
respondents to release Rs.1,00,000/- which has been sanctioned vide Sanction memo
dated 17.08.2017 issued by the Managing Director, Tripura Horticulture Corporation,
Ltd. providing financial benefit to the next kin of deceased employee of THCL under
die-in-harness scheme along with interest @ 9% per annum.
[12] For ready reference the relevant portion of the said judgment dated
26.04.2024 is extracted herein under:
[62] Monthly salary is paid for an employee for rendering his service for a
period of 30 days and for a year annual salary. The earned leave is derived out
of his 30 working days. Leave encashment of earned leave becomes integral
part of the working days and salary. Since, petitioners served for the above
period are entitled for pay. On one hand the TRTC is affirming the rights of the
petitioners and requested the Govt. to provide funds and on the other hand
prays to dismiss the writ as they are not entitled. The stand of the TRTC is
inconsistent and the argument advanced by State through the learned Advocate
General and TRTC through the standing counsel Mr. K. C. Bhattacharjee is
contradicting to each other. The counter affidavit of TRTC also supports the
case of the petitioners. Learned Advocate General argued that committee
constituted in pursuance of the orders of the Court has recommended TRTC to
give leave encashment from its own sources. Thus, TRCT can consider granting
leave encashment to its employees.
[63] But for any issue between the TRTC and the State respondent, the
employees of the corporation cannot be deprived of their legitimate rights and
from the above mentioned letter dated 08.09.2023 submitted by Mr. S.
Bhattacharjee, learned counsel for the petitioners that TRTC is ready to pay the
leave encashment amount to the employees who rendered their service with
utmost dignity but for the financial disability the process could not be carried
out by the TRTC. Thus, this Court is of the conscious view that the petitioners
are entitled for leave encashment.
[64] In view of the above discussion, the writ petitions are allowed declaring
the petitioners entitled for the leave encashment and there shall be a direction
to the TRTC respondents herein, to look into the matter and settle the claim of
the petitioners as expeditiously as possible preferably within a period of six
months from the date of receipt of the copy of this order. In default, the
petitioners may avail remedies before the competent Civil Court for recovery of
the said amount.
[65] With the above observations and directions, the present petitions stands
allowed and disposed of. As a sequel, miscellaneous application pending, if
any, shall stand closed.
[13] Learned senior counsel for the petitioners has finally prayed before this
court to allow the writ petitions by directing the respondents to give leave encashment
benefit to the petitioners.
[14] On the contrary, by way of filing a counter affidavit, it is submitted by Mr.
S M Chakraborty, learned Advocate General for the respondents that in principle THCL
might not deny the leave encashment benefit to its retired staff but no rule as such is
adopted by the Governing Body (Board of Directors) of the THCL till date, except in
the 74th meeting of the Board of Director of THCL held on 16th September, 2014. In
the 77th Meeting of the Board of Director held on 24.08.15, the issue of Gratuity and
Leave Salary for the employees of THCL was placed in the Agenda item No-3 and 6
respectively and the issue was unanimously accepted by the Board of Directors for
obtaining concurrence from the Finance Department.
[15] It is further submitted by the learned Advocate General for the
respondents that keeping Earned leaves in credit is at the discretion of the employee,
since respondent Authority never restricted to enjoy the earned leave by the employee.
However, Financial status of the THCL was never in such position that Authority could
take the decision for payment of leave encashment benefit to its retired employees from
the THCL own coffer.
[16] In course of his submission, it is further contended that the
respondents No 3 i.e., the Managing Director of THCL has not taken any arbitrary or
discriminatory action on the petitioners since the Governing Body of THCL has not
adopted any rules on payment of Gratuity and Leave Encashment to the employees on
superannuation neither incorporated in the Memorandum and Articles of Association of
THCL. However, in the special and urgent Board of Directors meeting held on
16.07.2024, it was unanimously decided by the Board of Directors not to further burden
the ex-chequer of the THCL by payment of leave encashment benefit to the employees
of THCL on superannuation.
[17] Heard and perused the record at length.
[18] Having gone through the record and also having considered the
submission as advanced by the learned counsel for the parties, this court is of the view
that the learned counsel for the petitioners has made out his case successfully and this
court finds force in the submission as advanced by him. Therefore, the petitioners in
WP(C) 772 of 2024 and WP(C) 775 of 2024 are entitled for leave encashment. This
court has no hesitation to hold that the argument as advanced by the learned Advocate
General for the respondents does not hold any weightage. The argument of the learned
Advocate General appearing for the respondents stating that there is no by-laws or any
rule providing leave encashment to superannuated employees in the respondent-
Corporation and since no concurrence is obtained from the Finance Department of the
Government of Tripura for releasing the leave encashment, the respondents are unable
to extend any benefit of leave encashment to its employees, cannot be appreciated by
this court. Moreover, this court has already dealt with similar cases by the order dated
26.04.2024 passed in WP(C) 489 of 2023 and batch matters. It was observed that for
any issue between the TRTC and the state respondent, the employees of the corporation
cannot be deprived of their legitimate rights.
[19] With the above observation and direction, the writ petition no. WP(C) 772
of 2024 & WP(C) 775 of 2024 stand allowed and disposed of. The respondents shall
extend the leave encashment to the petitioners as sought for.
[20] In respect of WP(C) 774 of 2024, this court, without expressing any
opinion in the amount, holds that the petitioners are entitled to the financial benefits. It
is open for the petitioners to provide appropriate information with regard to the leave
encashment and further information, if any, in respect of the amount of Rs.1,00,000
(Rupees one lakh only) released as per sanction memo dated 17.08.2017. The petitioner
shall approach the respondents within two weeks from today. Thereafter, the
respondents on receipt of such information shall release the undisputed amounts
forthwith.
[21] With the above observation and direction, the writ petition being WP(C)
774 of 2024 stands disposed of. As a sequel, stay, if any, stands vacated. Pending
application(s), if any, also stands closed.
JUDGE
Dipak
DIPAK DIPAK DAS
DAS 12:50:50 +05'30'
