Balwant Singh vs Union Of India And Anr

I have heard Mr. O.P.Bhatia, counsel for applicant and Mr. Vijendra Singh, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"i) To direct the respondents to make the payment of earned leave encashment amounting to Rs. 1,45,092/- (Rs. One Lac forty-five thousand and ninety-two only) to the applicant;

ii) To pass such other or further order/orders which this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case."

The relevant facts of the case are that the applicant was employed in the "existing Council" of Indian Council of World Affairs" being employed in the said Council from 24.04.1972. The "existing Council" was replaced by the present "Council" i.e. Indian Council of World Affairs which is incorporated under Section 4 of the Indian Council of World Affairs Act, 2001. He was taken over by the "Council" which is formed after the commencement of the 2001 Act. Being continued to work after 2001 up to 30.06.2012 and on which day he retired. Under Section 5(1)(e) of the 2001 Act, an employee who was holding an office under the "existing Council" immediately before the commencement of 2001 Act is entitled to continue to enjoy the same right and privileges as to pension, gratuity and other service matters in the new Council formed under the 2001 Act. Section 5 (1) (e) of the Act is extracted below:-

"5(1) (a) to (d)

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5 (1)(e) every employee holding any office under the existing Council immediately before that day, shall on that day, hold his office or service under the Council with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting; and shall continue to do so unless and until his employment under the Council is duly terminated or until his remuneration and other conditions of service are duly altered by the Council."

Under Section 26 of the 2001 Act, the Council is empowered to make regularizations. But the said regulation shall have to be consistent with the provisions of the Act. The said Section is extracted below:-

"26.(1) The Council may make regulations consistent with the provisions of this Act and the rules to carry out the provisions of this Act."

Exercising the power under Section 26, the Council made regulations on 16.09.2014. Regulation 23 entitles the employee of the Council to get leave encashment. Regulation 23 is extracted below:-

"Leave encashment:-An employee of the Council shall be entitled to encashment of earned leave on retirement as admissible to the Central Government employees under the Central Civil Services (Leave) Rules, 1972."

But, however, regulation 28(2) states that the former employees of the Council who retired or resigned prior to the publication of those regulations on 16.09.2014 are not entitled to any post retirement benefits under those regulations. The said regulation is extracted below:

"28. (2) A former employee of the Council who retired or resigned prior to the publication of these regulations shall not be entitled to any post retirement benefits under these regulations."

In view of the admitted fact that the applicant was employed in the "existing Council" right from 24.04.1972 and he was taken over in the Council which is formed after 2001 Act was passed, as such in view of Section 5 (1) (e) he is entitled to all the retiral benefits as though he is employed under the "new Council" which is formed after 2001. This vested right of the applicant cannot be divested by a regulation made by the Council under Section 26. This is crystal clear by the provision itself. The provision says that the regulations made under Section 26 have to be consistent with the provisions of the Act. At the cost of repetition, Section 26 is extracted below:

"26.(1) The Council may make regulations consistent with the provisions of this Act and the rules to carry out the provisions of this Act."

The counsel for the respondents vehemently contended that in view of regulation 28(2), the applicant having retired before the regulation came into effect on 16.09.2014, he is not entitled for leave encashment. In support of his contention, the counsel for respondents produced an order passed by this Tribunal in the case of Shri Kewal Kumar Vs. UOI and Ors (OA no. 1039/2016). I have perused the order dated 15.10.2018 passed in the said case of Shri Kewal Kumar (supra). Unfortunately Section 5 (1)(e) read with Section 26(1) which has been elaborated above has not been considered nor discussed nor taken into account in the said case of Kewal Kumar (supra). As such the said order dated 15.10.2018 is cannot be relied upon.

In view of the facts and circumstances and analysis made above. The applicant is entitled to leave encashment as prayed for.

Accordingly OA is allowed. The respondents are directed to make payment of Rs. 1,45,092/- to the applicant towards earned leave encashment with interest at GPF rate from 27.10.2014 i.e. the date on which the applicant submitted application for grant of leave encashment to the respondents, until actual payment is made. Respondents are directed to pay the amount within two months from the date of receipt copy of this order.