RAVINDRA v. GHUGE, & Y. G. KHOBRAGADE, JJ.RESERVED ON
Legal Reasoning
WP-6712/19 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 6712 OF 20191.Maroti s/o Mukundrao Waghmare,Age: 70 yrs, Occu. Retired service manR/o R.M.R. Plot No.102 Shradha colony Purna road Nanded, Dist. Nanded....PetitionerVERSUS1.The Chairmen Maharashtra Gramin Bank Head office Plot No:35, Sector G, Town Center CIDCO Aurangabad, 431003.2.General Manager, Bank of Maharashtra R.R.B Cell, Lokmangal, Shivajinagar, Pune-5...RespondentsMr. S. K. Adkine, Advocate for the Petitioner. Mr. P. L. Shahane a/w Mr. Parag P. Sahane, Advocate for Respondent Nos. 1 and 2.CORAM: RAVINDRA V. GHUGE, & Y. G. KHOBRAGADE, JJ.RESERVED ON: 13.06.2024PRONOUNCED ON: 21.06.2024JUDGMENT (Per: Y. G. Khobragade, J.)1.Rule. Rule made returnable forthwith and heard finallywith the consent of the parties.2.By the present Petition under Article 226 of theConstitution of India, the Petitioner, who is Ex-Officer of the RespondentPage 1 of 14 WP-6712/19Maharashtra Gramin Bank, has put forth prayer clause (B), (C) and (D)as under:“(B) Quash and set aside the order Dt. 11.04.2019 issued by chiefadministrator about pensioners benefits and it may be declare asillegal contrary to Law.(C) Direction may be issue against the respondents, their agents andsubordinates about giving "Leave Encashment Payments" andother retirement benefits and pension within 4 weeks to thePetitioner.(D) Respondent No 01, the Chairmen Maharashtra Gramin Bank maybe directed to deposit "Leave Encashment Payments" of thePetitioner in this Hon'ble High Court with 18% interest.”3.In nutshell, the grievance of the Petitioner is that, on05.04.1977, he was initially appointed as a Clerk with the RespondentBank and was posted at Panbhosi Branch Dist. Nanded. During hisservice tenure, he served at various branches of the Respondent Bank.On 20-06-1990, he was promoted to the post of Senior Manager,however, on 29.01.2005, he was suspended by leveling false andbaseless charges against him. The charges were duly inquired throughthe Enquiry Officer and inquiry was held against him. In consequence ofthe same, on 20-11-2007, Respondent No. 1 passed an Order andthereby compulsory retired him without entitlement of monetary orother benefits, except subsistence allowance which was already paid tohim and his salary was reduced by 5 stages in the time scale ofPage 2 of 14
Legal Reasoning
WP-6712/19Rs.13,820/- to Rs.19,920/- with cumulative effect i.e. reduction of 5annual increments with cumulative effects. So also, suspension periodw.e.f. 29-01-2005 to 20-11-2007 was treated as suspension period.4.According the Petitioner, during his service tenure, hereceived several congratulation letters which were issued by theRespondent Bank to him for his hard work. He served with theRespondent Bank for the period of 30 years 7 months, therefore, he isentitled to receive Rs. 11 Lakhs 59 thousand viz., Rs. 01,75,900/-toward E. P. F., Rs. 07,45,800/- toward Suspension Allowance, Rs.02,37,300/- toward Leave Encashment. However, the Respondent Bankfailed to give him service benefits. Therefore, on 14-01-2009, he issueddemand notice under section 33-C of the Industrial Disputes Act, 1947to the Respondents. On 16.01.2009, the Respondent Bank replied to thesaid notice and refused to grant service benefits on ground that he is notentitled for said benefits as per final order dated 20-11-2007. 5.The learned counsel for the Petitioner canvassed that thePetitioner submitted an application to Respondent No. 1 on 04.06.2018contending that in similar circumstances, other employees from hisdepartment have been granted leave encashment, therefore, similarly,he is also entitled for said benefits. Further, on 25.02.2019, thePetitioner submitted details in a particular format and requested toPage 3 of 14 WP-6712/19grant pensionary benefits, however, the Respondent replied videcommunication dated 11.04.2019 stating that he is not entitled for saidbenefits. 6.The learned counsel for the Petitioner submits that thePetitioner has served Respondent Bank for the period of 30 years and 7Months with no service gap until his suspension. Therefore, thePetitioner is entitled for service benefits. He has relied on Rule 61 (4) ofthe Maharashtra Gramin Bank (Officers and employees) ServiceRegulations, which provides that the Privilege leave may beaccumulated up to 31/12/1989 for an aggregate period up to 180 daysand from 01/01/1990, the privilege leave may be accumulated up tonot more than 240 days.7. It is further canvassed on behalf of the learned counsel forthe Petitioner that, as per Government Resolution issued regardingpension to Maharashtra Gramin Bank Employee, Rule 29 (1) of 2018 isapplicable to Petitioner. To substantiate his submissions, the learnedcounsel for the Petitioner has placed reliance on the judgment of thisCourt in Writ Petition No. 1347 of 2016 Ashok Munjappa Potphale &ors. vs. Chief Secretary, Union of India & Ors.Page 4 of 14 WP-6712/198. The Respondents, by filing affidavit in reply, have admitted thefacts about the Petitioner’s appointment, promotion, transfer, suspensionand compulsory retirement. However, the Respondents have denied thePetitioner’s claim to receive due salary, retirement and pensionarybenefits because of the Petitioner’s misconduct during his service tenure.Further it was emphasized by the Respondents that working for morethan 30 years does not automatically confer any right in favour of theemployee for entitlement of pensionary benefits unless his servicerecord is unblemished and the employee who awarded punishment forserious charges is not entitled for pensionary and retiral benefits.9. It was further contented on behalf of Respondents that, thePetitioner has already availed remedy under section 33-C of theIndustrial Disputes Act, 1947 by issuing notice dated 14-01-2009 andthe Respondent Bank already replied to the said notice. Therefore, thePetitioner is having alternate remedy, hence, prayed for dismissal of thePetition.10.At the outset, it is submitted that the Respondent Bankraised an objection about maintainability of the Petition as the Petitionerhas issued Notice dated 14-01-2009 under section 33-C of the IndustrialDispute Act, 1947 thereby claiming retiral benefits. The RespondentBank replied to the said Notice on 16-01-2009 and denied said benefitsPage 5 of 14 WP-6712/19as per final order of the Disciplinary Authority. At the time of issuanceof order dated 20.11.2007 ordering compulsory retirement, thePetitioner was serving as an Area Manager, which does not fall withinthe ambit of “workman” as defined under section Section 2(s) of theIndustrial Disputes Act. Therefore, merely because the Petitioner issuednotice under section 33-C of the Act, it cannot be said that presentPetition is not maintainable. We are, therefore, not inclined to acceptthe objection raised by Respondents with regard to the tenability of thePetition.11.We have considered strenuous submissions canvassed onbehalf of both sides and we have gone through the petition paper book.It is undisputed that, on 05-04-1977, the Petitioner was initiallyappointed as a Clerk with the Respondent Bank and was posted atPanbhosi Branch Dist. Nanded. On 20-06-1990, the Petitioner waspromoted to the post of Senior Manager. According to the Respondents,while serving as a Area Manager at Parbhani the Petitioner committedserious acts of misconduct. As a result, he was served with the chargesheet on 25.05.2005, citing breaches of several Regulations of theMarathwada Gramin Bank (Officers and Employees Service Regulations,2001). Thereafter, an enquiry was conducted by Shri. B. M. Gaikwad,during which the Petitioner was represented by his defencerepresentative. After hearing, the enquiry officer submitted it’s ReportPage 6 of 14 WP-6712/19on 13.10.2007, finding the Petitioner guilty of the charges. Followingthis, the Disciplinary Authority issued a show cause of punishment on14.11.2007, proposing removal from service and reduction of 5 annualincrements with cumulative effect for the proved acts of misconduct.12.After a personal hearing, the disciplinary authority issuedthe order of punishment dated 20.11.2007, ordering compulsoryretirement of the Petitioner for the proved acts of misconduct andconfirming the suspension period from 29.01.2005 to 20.11.2007 as‘suspension’ only. Said order specifically disentitled the Petitioner fromclaiming any monetary or other benefits from the Respondent Bank and,therefore, the Petitioner is not entitled to any relief as prayed for in thisPetition. The provision of the Maharashtra Gramin Bank EmployeesService Regulations, 2010 does not provide for grant of leaveencashment benefits, post retiral benefits to employees who havecommitted serious misconduct and compulsorily retired being apunishment.13.It is undisputed that, service conditions of the Petitioner aregoverned under the Maharashtra Gramin Bank (Employees)Regulations, 2009. Regulations 61 & 67 provide as under:“61. Privilege leave-(1) An officer or employee shall be eligible for privilege leavecomputed at one day for every 11 days of service on duty:Page 7 of 14 WP-6712/19Provided that no privilege leave shall be availed ofbefore the completion of 11 months of service on duty at thejoining of his service.(2) The period of privilege leave to which an officer oremployee is entitled at any time shall be the period which hehas earned less the period availed of.(3) An officer or employee on privilege leave shall be entitledto full emoluments for the period of leave.(4) Privilege leave may be accumulated up to 31st December,1989 for an aggregate period up to 180 days and from 1stJanuary, 1990, the privilege leave may be accumulated up tonot more than 240 days.(5) An application for privilege leave shall be submitted by anofficer or employee one month before the date from whichsuch leave is required.(6) The application which does not satisfy the requirement ofsub-regulation (5) may be refused without assigning anyreason :Provided that if the Competent Authority is satisfiedthat such requirement was not possible, he may, at hisdiscretion, waive the requirement”.“67. Lapse of Leave.- All leave shall lapse on the death of anofficer or employee or if he ceases to be in the service of theBank:Provided that where an officer or employee dies inservice, there shall be payable to his legal representatives sumswhich would have been payable to the officer or employee asif he has availed of the privilege leave that he hadaccumulated at the time of his death, subject to sub-regulation(4) of regulation 61:Provided further that where a staff retires from theservice of the Bank, he shall be eligible to be paid a sumequivalent to the emoluments for the period of privilege leavehe had accumulated subject to sub- regulation (4) ofregulation 61:Page 8 of 14 WP-6712/19Provided also that in respect of the employee wherehis services are terminated owing to retrenchment, he shall bepaid pay and allowances for the period of privilege leave at hiscredit.”14.On a bare perusal, Regulation No. 67 provides that whenan officer or employee dies while in service, the monetary benefits ofprivilege leave shall be payable to his legal representatives as if he hasavailed of the privilege leave that he had accumulated at the time of hisdeath. Proviso to this regulation shows that where a staff retires fromthe service of the Bank, he shall be eligible to be paid a sum equivalentto the emoluments for the period of privilege leave he had accumulatedsubject to sub-regulation (4) of the Regulation No. 61.15.In the case in hand, the question raised is as to whetherthe Petitioner, who was compulsorily retired as punishment afterholding disciplinary proceedings against him, is entitled to getencashment of his privilege leave? Said question is no more res-integraas per the view expressed in the case of Ashok Munjappa Potphale &Ors. vs Chief Secretary, Union of India, Banking Division; [2017 (3)Mh.L.J. 540], Co-ordinate bench of this Court by considering the case ofState of Jharkhand & Ors. vs Jitendra Kumar Srivastava & Anr, (2013)12 SCC 210, has held that, the Petitioners who wereterminated/compulsorily retired are entitled for receiving leaveencashment. Page 9 of 14 WP-6712/1916.Needless to say that, the issue involved in present case hasalready been considered by this court in Writ Petition No. 619/2018Padmakar Trimbakrao Mule vs The Chairman Maharashtra GraminBank & Anr. the co-ordinate bench of this Court [Coram: Shri P. B.Varale (as his lordship then was) and N. W. Sambre JJ.] has observed inParagraph Nos. 10 to 13, as under:"10. In the aforesaid backdrop, if this Court proceeds toappreciate the claim put forth by the petitioners, it cannot beinferred from the provisions of the Regulations of 2010 that inlaw the respondent employer is authorised to deny the reliefclaimed by petitioners in the instant petitions.11. Identical issue fell for consideration before this Court inWrit Petition No. 1347/2016 in which, the Division Bench ofthis Court pronounced judgment on 17.02.2017. In the saidcase, the Division Bench had an occasion to consider theprovisions of Regulations 61(1) and 67 of the aforesaidRegulations which governs the service conditions ofpetitioners and the Division Bench was pleased to allow thepetitions thereby directing respondent employer to pay theamount of privilege leave encashment as per the lawfulentitlement of petitioners considering the privilege leavestanding to the credit of the petitioners. It was also directed topay interest at the rate of 8% per annum on the amount towhich the petitioners therein were held to be entitled to.12. Once it is not in dispute that in a similar factual position,pursuant to the law which governs the dispute brought beforethis Court, this Court has granted relief, the judicial disciplinewarrants us to follow the same path. As such, all thesepetitions need to be allowed and are allowed accordingly.13. We accordingly direct respondent-employer to forthwithprocess the prayer of the petitioners for grant of leaveencashment payment upto 240 days, of course, uponPage 10 of 14 WP-6712/19calculating their entitlement to the aforesaid effect. Needlessto say that, the amount to which the petitioners will be heldentitled shall carry interest at the rate of 8% per annum."17.Further, in Writ Petition No. 12161 of 2019; DattaramAtmaram Sawant & Anr. vs Vidharbha Konkan Gramin Bank, the Co-ordinate bench of this court (Coram: Nitin Jamdar and M.M. SathayeJJ) by Judgment dated 2nd May, 2024 has considered Regulations 61 &67, which provide Privilege Leave, Lapse of Leave and observed inParagraph Nos. 14 to 18 as under: "14. From the review of the decisions cited by the Petitioners,the following position of law emerges. Regulation 61 stipulatesthat an employee earns one day of privilege leave for every 11days of duty, with the entitlement being the accumulated daysearned minus those already utilised. Additionally, Regulation61 specifies that an employee on privilege leave shall receivefull emoluments for the duration of the leave. Consequently,the right to leave is a statutory entitlement granted toemployees as per the provisions of the law. This privilege leave,as defined in Regulation 61, is available to employees uponfulfilling the prescribed duty period. Regulations states thatduring this period, employees are entitled to full emolumentsas if they were on duty.15. Leave encashment is akin to a salary, which is property.Depriving a person of his property without any valid statutoryprovision would violate Article 300 A of the Constitution ofIndia. Leave encashment paid on account of unutilised leave isnot a bounty. If an employee has earned it and the employeehas chosen to accumulate his earned leave to his credit, thenencashment becomes his right. The Hon’ble Supreme Court, inthe case of the State of Jharkhand and Others, held that aperson could not be deprived of his right to pension without theauthority of law, which is the constitutional mandate enshrinedPage 11 of 14 WP-6712/19in Article 300 A of the Constitution of India. The SupremeCourt, in the case of D.S. Nakara and Others v. Union ofIndia14, has established the legal position that pension is astatutory right, not subject to the whims of the authorities, butis governed by statutory rules. In the case of Jitendra KumarSrivastava, the Apex Court emphasised that the right toproperty cannot be infringed upon without due process of law.Thus any attempt to deprive an employee of pension, gratuity,or leave encashment without a statutory provision, isuntenable. 16. Consequently, leave encashment which was acquired by thePetitioners constitute their property once earned. Deprivationof such property without statutory backing will not bepermitted. Leave encashment is recognised as a right by thecourts, accruing to employees upon fulfillment of statutoryconditions, and can only be restricted by another statutoryprovision empowering the employer to withhold it. Regulation67 when it states that all leave shall lapse on the death of anofficer or employee or if he ceases to be in the service of theBank cannot take away the right to the Petitioners which hasalready accrued. All the decisions that the Petitioner has citedreferred to above have analyzed different form of cessation ofservice, including dismissal, and have held accordingly.17. Once there is no such specific regulation that takes awaythe accrued right to encash privilege leave on resignation, thenwithout there being any specific regulation, the right alreadyaccrued cannot be forfeited. Though Regulation 67 states thatall leave shall lapse, it does not mean the right already accruedfor encashment will lapse. 18. The Division Bench of this Court in the case of Ashok s/o.Munjappa Potphale and Others considered the provisions of theMaharashtra Gramin Bank (Officers and Employees) ServiceRegulations, 2010, which are identical to the Regulations of2013. In this case, the Petitioners therein who were penalisedwith removal from service after holding up the disciplinaryenquiry, had claimed entitlement to their privilege leave. Theemployer -bank opposed the petition, stating that thepetitioners therein were found guilty of the charges, they werePage 12 of 14 WP-6712/19compulsorily retired by way of punishment, and they were notentitled to leave encashment. The Division Bench found thatthere was no provision for withholding leave encashment onthe grounds that they have been penalised and directed to paythe amounts of privilege leave encashment to the petitioners asper their entitlement, considering the privilege leave standingto their credit."18.Further, this Court, in Writ Petition No. 5870 of 2019(Vinayak s/o Anandrao Patil and Another vs The Chairman MaharashtraGramin Bank) (Coram: Ravindra V. Ghuge and R. M. Joshi JJ.) has heldthat, the employees who have been terminated by way of punishment,after conducting a disciplinary enquiry, is entitled for leave encashment.19. The case of the Petitioner stands similar to the cases citedsupra. Therefore, considering the ratio of cases cited above as well asRegulations 61 (1) and 67 and decision of the two Division Benches insimilar set of facts wherein directions were already issued to theRespondent/Bank Employer to pay the amount of privilege leaveencashment according to the lawful entitlement of the petitioners incases cited supra, it would be just and proper to direct theRespondents/Bank herein to pay the admissible amount of privilegeleave encashment for 240 days being lawful entitlement of thePetitioner. However, the Petitioner would not be entitled for thepensionary benefits as the Petitioner has not challenged the order dated20-11-2007 by which he came to be compulsorily retired, after chargesPage 13 of 14 WP-6712/19of misconduct were proved against him, and his service benefits weredenied. The Petitioner approached this Court in the year 2019 afterlapse of 12 years. However, the Petitioner has not offered anyexplanation about approaching this Court after lapse of 12 years.Therefore, taking into consideration the delay and laches, the Petitioneris not entitled for any interest.20. In view of above discussion, we proceed to pass the followingorder:O R D E R1. The Writ Petition is partly allowed.2.The Petitioner is entitled to receive leave encashment for theperiod of 240 days, without interest.3.The Respondent 1 & 2, are hereby directed to pay leaveencashment upto 240 days to the Petitioner within a period of 60days from the date of this order, failing which said amount shallcarry interest at the rate of 6% per annum till its realisation. 4. Rule is made partly absolute in the above terms.5. No order as to cost. (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)JPChavanPage 14 of 14