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2016 DIGILAW 884 (CAL)

Alok Krishna Chaudhuri v. State of West Bengal

2016-11-18

DEBANGSU BASAK

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DEBANGSU BASAK, J.: 1. The petitioner has assailed an Order dated June 21, 2016 by which the claim of the petitioner for 300 days Earned Leave has been negated. 2. Learned Advocate for the petitioner has submitted that, the petitioner has retired from service under the university as an Assistant Registrar on February 29, 2012. The petitioner has received his retirement benefits. However, the petitioner has grievance with regard to the leave salary. Learned Advocate for the petitioner has submitted that, by the Order dated June 23, 2000 the higher education department has prescribed that cash equivalent to leave salary for Earned Leave if any, to the credit of the employee on the date of retirement will apply uniformly for all officers or non-teaching employees of State Aided universities. Bidhan Chandra Krishi Viswavidyalaya is one of the universities to be governed by such government order. He has submitted that, the leave Rules appended to the Government Order dated June 23, 2000 permits encashment of 300 days of leave salary. He has further submitted that the universities named in the Government Order dated June 23, 2000 have implemented such Government Order and that, the employees Governed by such Government Orders of the universities are named therein are enjoying the benefit of 300 days Earned Leave salary. Bidhan Chandra Krishi Viswavidyalaya is wrongly not allowing encashment of 300 days leave salary. He has relied upon 2005 (10) SCC 346 (State of Rajasthan v. Senior Higher Secondary School) and has submitted that, encashment of leave salary is a part of salary receivable by the employee. 3. Learned Advocate for the petitioner has referred to the impugned order passed by the Additional Chief Secretary of the Agriculture Department dated June 21, 2016 and has submitted that, the claim for leave salary for 300 days has been rejected without any basis. The learned Advocate appearing on behalf of the State has submitted that, the impugned order is correct. He has referred to the impugned Order dated June 21, 2016 and has submitted that, the request for encashment of 300 days leave salary has been correctly negated on the basis of the Government Order dated November 1, 2001 issued by the Higher Education Department and the Government Order dated December 14/18, 2001. 4. I have considered the rival contentions of the parties and the materials made available on record. 5. 4. I have considered the rival contentions of the parties and the materials made available on record. 5. The petitioner was a whole time non-teaching employee of Bidhan Chandra Krishi Viswavidyalaya. He had retired from service on November 29, 2012. Subsequent to his retirement a pension order was issued which, inter alia, demonstrates that, the petitioner was entitled to 240 days leave salary. According to the petitioner, he is entitled to 300 days leave salary. Being aggrieved by the pension order he had filed a writ petition being W.P. No. 22363 (W) of 2014. Such writ petition was disposed of by an Order dated January 28, 2015 modified by the Order dated March 3, 2015. By such order the petitioner was granted liberty to submit a representation to the Principal Secretary, Agriculture Department. The authority was directed to consider such representation in accordance with law. The petitioner had filed a representation dated March 12, 2015 claiming 300 days leave salary. Since such representation was not disposed of, the petitioner had filed a second writ petition being W.P. No. 8145 (W) of 2016. The second writ petition was disposed of on May 17, 2016 directing the authority concerned to dispose of the representation in terms of the earlier order of the Court. The authority had considered the representation and passed an Order dated June 21, 2016 which is impugned in the present writ petition. The authority had negated the claim for 300 days leave salary on the premise of a conjoined reading of Government Orders dated November 1, 2001 and December 14/18, 2001 a whole time non-teaching employee such as the petitioner is entitled to 240 days leave salary and not 300 days. 6. State of Rajasthan (supra) has considered the provisions of Rajasthan Non-Government Education Institutions Act, 1989 and the Rules framed thereunder. On an appreciation of the Act of 1989 and the Rules, it has been held that the benefit of encashment of leave is nothing but payment of salary for the leave not availed of by an employee and which is to his credit. In the present case, the university is not denying leave encashment. However, the quantum of leave encashment is in dispute. Such dispute can be resolved in reference to the relevant Government Orders. 7. In the present case, the university is not denying leave encashment. However, the quantum of leave encashment is in dispute. Such dispute can be resolved in reference to the relevant Government Orders. 7. The Higher Education department had issued a memorandum dated June 23, 2000 prescribing the benefits indicated in the annexure to such memorandum to be made applicable to the whole time employees in the categories of officers and non-teaching employees of State aided universities. The concerned university is named in such memorandum. However, such memorandum goes on to say that the concerned university may implement the provisions of such memorandum after obtaining the concurrence of the Agriculture Department. 8. Nothing has been place to suggest that the Agriculture Department had concurred with the memorandum dated June 23, 2000. The memorandum dated June 23, 2000 was, however, issued the concurrence of the finance department. Subsequent to the memorandum dated June 23, 2000, the Higher Education Department by an Order dated November 1, 2001 has specified that, whole time non-teaching employees and officers of State aided universities would be entitled to 240 days leave encashment. Such order also states that, the same was issued with the concurrence of the Finance Department. The Agriculture Department by an Order dated December 14/18, 2001 had approved the Higher Education Department Order dated November 1, 2001 insofar as the same had been made applicable to the university concerned. 9. The basis of the claim of the petitioner is the memorandum dated June 23, 2000. Such memorandum required the concurrence of the Agriculture Department before the same was made applicable to the university concerned. Subsequent to the memorandum dated June 23, 2000, the Higher Education Department itself issued the Order dated November 1, 2001 which relates specifically to the concerned university. The Agriculture Department by the Order dated December 14/18, 2001 accepted the same. 10. The quantum of leave encashment to be allowed to an employee is a policy decision of the concerned employer. In the present case, nothing has been placed on record to suggest that, the policy of the employer to allow leave encashment for 240 days is so vitiated so as to warrant an interference under Article 226 of the Constitution of India. 11. In the present case, nothing has been placed on record to suggest that, the policy of the employer to allow leave encashment for 240 days is so vitiated so as to warrant an interference under Article 226 of the Constitution of India. 11. The impugned Order dated June 21, 2016 records the relevant memorandum and Government Orders and proceeds to deny the claim of the petitioner for 300 days leave encashment on the ground that, the same is not permissible in view of the Order dated November 1, 2001 of the Higher Education Department read with its approval issued by the Agriculture Department dated December 14/18, 2001. The grounds put forward for the rejecting of the claim of the petitioner as appearing in the impugned order cannot be said to be perverse or without any reason. 12. In such circumstances, I find no merit in the present writ petition. W.P. No. 14229 (W) of 2016 is dismissed. No order as to costs. 13. Urgent certified website copy of this order, if applied for, be given to the parties on priority basis.