B. K. AHUJA v. UNION OF INDIA — 1998 DIGILAW 226 (DEL)

M. K. Sharma, J. ( 1 ) THE petitioner has filed the present writ petition praying for a direction to the respondents to pay to the petitioner his voluntary retirement dues for 10 years amounting to Rs. l,48,200. 00 and also an amount of Rs. 25,029. 00 towards balance earned leave for 76 days. The petitioner has also sought for payment of interest on the aforesaid amount @ 24% per annum. ( 2 ) THE petitioner initially joined the Fertilizer Corporation of India as an Industrial Engineer. The petitioner however made a request to the respondent No. 4 to release him from their service so as to enable him to join the respondent No. 2 with continuity of service. On his request and on agreement and consent of both the managements of the respondent No. 4 and respondent No. 2, the services of the petitioner was placed at the disposal of the respondent No. 2. The petitioner was working as a Chief Manager with the respondent No. 2 and finally went on voluntary retirement with effect from 3. 6. 1992. Accordingly the petitioner rendered service under respondent No. 4 from 16. 1. 1998 to 8. 2. 1978 and thereafter with the respondent No. 2 from 16. 2. 1978 to 3. 6. 1992 till he was allowed to go on voluntary retirement. ( 3 ) MR. Rohit Minocha, Counsel appearing for the petitioner submits that both the respondents 2 and 4 are public sector undertakings and, therefore, there could be inter-transfer between the said organisation and in a case of such transfer, benefit of service rendered by an individual in the earlier public sector undertaking is granted by the borrowing public sector undertaking where the individual goes on transfer. Counsel for the petitioner states that in tile light of the aforesaid policy prevalent amongst the public sector undertakings, the petitioner was taken in the service of the respondent No. 2 and, therefore, he is entitled to get his past service recognised by the respondent No. 2. Counsel for the petitioner states that in tile light of the aforesaid policy prevalent amongst the public sector undertakings, the petitioner was taken in the service of the respondent No. 2 and, therefore, he is entitled to get his past service recognised by the respondent No. 2. Further submission of the learned Counsel for the petitioner is that the Provident Fund and Gratuity of the petitioner for his past services in respondent No. 4 organisation was transferred to the respondent No. 2, but, the earned leave account was not transferred by the respondent No. 4 to respondent No. 2 and accordingly he has not been paid the amount due to his earned leave account. It is submitted that in view of non-transfer of the earned leave account, the respondent No. 2 has also refused to make payment of the voluntary retirement dues for 10 years amounting to Rs. 1,48,200. 00. ( 4 ) MS. Mamta Mehra, Counsel appearing for the respondent No. 2 states that the aforesaid amount in respect of earned leave claimed by the petitioner in the present petition cannot be paid to the petitioner as there was no transfer of the said account by the respondent No. 4 to the respondent No. 2. According to her, since one of the accounts was not transferred from the respondent No. 4 to respondent No. 2, the petitioner is also not entitled to the benefit of computation of ex-gratia amount and payment thereof at the time of allowing him to go on voluntary retirement. In support of her contention. Counsel for the respondent No. 2 relies upon the Office Memorandum dated 29th May, 1992, particularly, paragraph 4 thereof. ( 5 ) IN the light of the submission of the learned Counsel appearing for the parties, I have looked into the aforesaid paragraph 4 of the Office Memorandum dated 29th May, 1992. The said paragraph 4 states that when an employee moves from one enterprise to another enterprise with the consent of the management of both the PSEs, the lending organisation should liquidate its liability towards CPF, Gratuity, EL and half pay leave by making a lumpsum payment to the borrowing organisation in respect of the amount due to the concerned employee for the service rendered in the lending organisation and then the service rendered in the previous organisation would be taken into account for purpose of determination of ex-gratia. It is also laid down that if a individual does not satisfy any of the conditions or in that post has encashed any part of the retirement benefit, say Gratuity, or drawn cash equivalent to earned leave standing to his credit, then in such case his case would be considered as de novo and the previous service in the other organisation would not be counted. ( 6 ) IT is an admitted position that so far the Gratuity and Provident Fund are concerned, the same were transferred by the respondent No. 4 to the respondent No. 2. The petitioner also sought to ascertain from the respondent No. 2 about transfer of his earned leave account from the respondent No. 4 to respondent No. 2. As against the said query of the petitioner, the respondent No. 2 informed him that although the respondent No. 2 does not have any policy for such transfer of earned leave account, the same, however, could be examined. ( 7 ) IN the light of the pleadings of the parties as aforesaid and the submissions of the learned Counsel for the parties, the issue that arises for my consideration is whether the petitioner is entitled to a direction as sought for transfer of his earned leave account due from the respondent No. 4 to the respondent No. 2 and also whether the petitioner is entitled to a declaration for payment of ex-gratia payable on voluntary retirement as claimed. The Office Memorandum dated 29th May, 1992 provides that if an individual does not get his Gratuity, Provident Fund and learned leave transferred to the borrowing organisation or the individual had encashed any part of his retirement benefit like Gratuity or has drawn cash equivalent to earned leave standing to his credit at the time of his movement from one enterprise to another enterprise, then his service in the borrowing organisation would be treated as de-novo and the previous service in the other organisation would not be counted. Admittedly, the Provident Fund and Gratuity amount payable to the petitioner has been transferred by the previous organisation to the borrowing organisation, that is by respondent No. 4 to the respondent No. 2. ( 8 ) SO far earned leave is concerned, the previous organisation has stated under their letter dated 29. 1. Admittedly, the Provident Fund and Gratuity amount payable to the petitioner has been transferred by the previous organisation to the borrowing organisation, that is by respondent No. 4 to the respondent No. 2. ( 8 ) SO far earned leave is concerned, the previous organisation has stated under their letter dated 29. 1. 1993 written to the respondent No. 2 that Fertilizer Corporation of India is having a scheme since 1976 for transfer of equivalent amount of leave salary to other public sector undertakings in respect of employees who join other public sector undertaking provided their applications had been routed through proper channel and such organisation was willing to accept such transfer. In the said letter it was further stated that the petitioner had not encashed the earned leave from Fertilizer Corporation of India, the previous organisation at the time of his release from its service. This letter, therefore, clearly proves and establishes that the petitioner moved from Fertilizer Corporation of India to Cement Corporation of India with the consent of Management of both the public sector undertakings and the Fertilizer Corporation of India, the lending organisation has liquidated its liability towards the Provident Fund and Gratuity which was transferred to the respondent No. 2. It further proves that there was a scheme in existence that the lending undertaking would transfer an equivalent amount of leave salary in respect of an employee who joins another public sector undertaking with the consent of both the public sector undertakings provided his application, wasrouted through proper channel and when the borrowing organisation was willing to accept such transfer. ( 9 ) IN the present case, the petitioner was transferred with the consent of the Management of both the undertakings and his service was taken over by the respondent No. 2 on transfer and released by the respondent No. 4. It is established that the petitioner did not encash the earned leave account from the Fertilizer Corporation of India at the time of his release. In this connection, reference can also be made to the averments made in the counter affidavit filed by the Union of India. It is established that the petitioner did not encash the earned leave account from the Fertilizer Corporation of India at the time of his release. In this connection, reference can also be made to the averments made in the counter affidavit filed by the Union of India. ( 10 ) THE respondent No. 4 has also filed a counter affidavit contending, inter alia, that the earned leave of 149 days standing to the credit of the petitioner on the day he was released from the service of respondent No. 4 might have been transferred to the respondent No. 2, particularly, when all other benefits were transferred. It is further stated that on receipt of communication dated 30. 7. 1992 from the respondent No. 2, the respondent No. 4 as a goodwill gesture sent a cheque dated 25. 9. 1992 amounting to Rs. 10,195. 57 to the respondent No. 2 which is equivalent to the amount of earned leave standing to the credit of the petitioner at the time of his release from the service of respondent No. 4. It is also stated that the said cheque was returned by respondent No. 2 vide letter dated 4. 2. 1993. Admittedly, the petitioner had not encashed the earned leave due to him at the time of his release from the organisation of respondent No. 4 and, therefore, the bar as stated in paragraph 4 of the Memorandum dated 29. 5. 1992 would not be applicable to the facts of the present case and, therefore the benefit of service rendered by the petitioner to the respondent No. 4 cannot be deemed to be denied. Since the respondent No. 4 had also a scheme for transfer of equivalent amount of leave salary to other public sector undertakings, as stated in their letter dated 21. 1. 1993, such leave salary as due and payable to the petitioner should have been transferred by the respondent No. 4 to the respondent No. 2 at the time of his release from the said organisation. Having not done so at least in respect of the earned leave account and having sought to pay the same by the respondent No. 4 to the respondent No. 2 in 1992 by sending a cheque for an amount of Rs. 10,195. 57 dated 25. 9. Having not done so at least in respect of the earned leave account and having sought to pay the same by the respondent No. 4 to the respondent No. 2 in 1992 by sending a cheque for an amount of Rs. 10,195. 57 dated 25. 9. 1992, which was refused to be accepted by the respondent No. 2, the petitioner by any stretch of imagination cannot be blamed and on that count, the petitioner cannot be denied the benefit. ( 11 ) IT is also admitted that if the said earned leave account is transferred to the respondent No. 2, the petitioner shall be entitled to the ex-gratia amount payable to him as voluntary retirement dues. ( 12 ) SINCE, in my considered opinion, there was negligence and /or inaction on the part of the respondent No. 4 in transferring the earned leave salary account of the petitioner to the respondent No. 2,1 direct the respondent No. 4 to issueal cheque in favour of the respondent No. 2 for an amount of Rs. 10,195. 57 which was sent by the respondent No. 4 to respondent No. 2 on 25. 9. 1992 within three weeks from the date of receipt of a copy of this order and on receipt of the said amount, the respondent No. 2 shall make payment of the said amount to the petitioner. On receipt of the aforesaid amount from the respondent No. 4, the respondent No. 2 shall also release the ex-gratia amount payable to the petitioner towards voluntary retirement dues and also issue necessary orders for getting the previous service of the petitioner rendered with the Fertilizer Corporation of India counted and taken into account for the purpose of payment of ex-gratia and for all other purposes. The aforesaid action including payment of all dues as mentioned in this order shall be taken by the respondent No. 2 within eight weeks from the date of receipt of the earned leave account from the respondent No. 4. ( 13 ) WITH the aforesaid observations and directions, the present writ petition stands allowed to the extent indicated above, but, without any cost.