'Leave Encashment Can't Be Denied Merely Because Chargesheet Was Filed Against Petitioner': Delhi High Court

A Single Judge Bench of the Delhi High Court comprising Justice Jyoti Singh held that as per the CCS (Leave) Rules, 1972, the Petitioner could not be denied the grant of Leave Encashment under Rule 39(3) of the said Rules. The Petitioner was charge-sheeted for allegedly participating in a one-day protest and could not be denied the benefit of grant of Leave Encashment as no harm was caused and moreover, as per the Rules mentioned, if some money was recoverable from him and the Competent Authority would have taken action, only then the benefit could have been denied to him, the Court held. Background On 20.01.1988, the Petitioner was appointed as Assistant Professor in the Centre for Study of Regional Development of Jawaharlal Nehru University w.e.f. 04.04.1988. A protest was organised by some of the faculty members which was to take place on 31.07.2018. The Petitioner was issued a show cause notice on 20.09.2018 for allegedly participating in the protest. Some more teachers who were allegedly a part of the protest along with the Petitioner approached the High Court challenging the Chargesheet and the consequential inquiry proceedings. The Court passed an interim order staying the inquiry proceedings and in appeal, the stay order was not set aside. Pertinently, the Stay Order is still in force and the inquiry has not proceeded. On 31.08.2022, the Petitioner superannuated but the University did not release the superannuation benefits of the Petitioner. He was only sanctioned the provisional pension. The Petitioner filed several representations for release of Gratuity and Leave Encashment and full pension but no relief was granted to him. Consequently, the Petitioner approached the High Court seeking a direction to the Respondent to release the Leave Encashment and Gratuity of the Petitioner along with interest at 18% per annum. Contentions of the Petitioner: The Counsel for the Petitioner submitted that the Petitioner had superannuated and was not terminated. Seeking relief of payment of Leave Encashment with liberty to claim Gratuity subject to the decision in the petition mentioned above, the Counsel stated that the chargesheet was merely filed for a protest march which caused no harm. Therefore, also keeping in view that the Petitioner was not terminated, he could not be denied the benefit of gratuity. Regarding Leave Encashment, the Counsel stated that the CCS (Leave) Rules, 1972 were inapplicable to the Petitioner and therefore denying Leave Encashment to him was illegal. It was stated that even if the Rules were considered to be applicable, as per Rule 39(3) of the Leave Rules, the Competent Authority could withhold wholly or partially the Leave Encashment of a Government servant who superannuated while under suspension or while disciplinary or criminal proceedings were pending against him but only if the Authority opined that some money could be recovered from him when the proceedings were over. The Counsel stated that in the Petitioner's case, the Petitioner had merely allegedly participated in a strike and no money was recoverable from him. Moreover, even the Competent Authority had passed no Order under Rule 39(3), therefore, making the withholding of the Leave Encashment illegal. While justifying the contentions made, the Counsel cited some orders of the Delhi High Court in Professor Balbir Singh Butola v. Jawaharlal Nehru University, Geetha B. Nambissan v. Jawaharlal Nehru University, Janakyi Nair v. Jawaharlal Nehru University and Professor Birender Nath Mallick v. Jawaharlal Nehru University. Findings of the Court: The Court perused Rule 39(3) of the Leave Rules and held that it could not adjudicate upon whether the Leave Rules were inapplicable to the employees of the University. Observing so, the Bench held that even if an adverse decision was made against the Petitioner in the Writ Petition, as per Rule 39(3) of the Leave Rules, the Authorities could only exercise the power under this rule if some money was recoverable from the delinquent employee. It was stated that the Respondents could not withhold the Leave Encashment of the Petitioner even if Rule 39(3) of the Leave Rules was considered and mere filing of a Charge Sheet with respect to the Petitioner for allegedly participating in a one-day strike could not be a ground to withhold the Leave Encashment. Therefore, the University could not contend that the Petitioner was only entitled to provisional pension and not Leave Encashment, the Court held. The Court referred to the decision in Govt. Of NCT of Delhi and Anr. v. Prem Nath Manchanda, 2018 SCC Online Del 13066, wherein it was held, 'When the Competent Authority does not withhold Leave Encashment for the reason that there is a possibility of money becoming recoverable on conclusion of disciplinary/criminal proceedings, Leave Encashment cannot be withheld under Rule 39(3) of the...

'Leave Encashment Can't Be Denied Merely Because Chargesheet Was Filed Against Petitioner': Delhi High Court

Syed Nazarat Fatima

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'Leave Encashment Can't Be Denied Merely Because Chargesheet Was Filed Against Petitioner': Delhi High Court

Syed Nazarat Fatima

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