# Om Prakash v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Writ-A No. 13460 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-ors-51962
- **Pages:** 6

## Headnote

(A) Service Law - Claim of Terminal dues -
The U.P. Cooperative Employees Service
Regulations, 1975 - The Right to Information
Act, 2005 - The Constitution of India - Article
300-A - right to property - leave encashment
cannot be taken away without any statutory
provision - Petitioner is entitled to leave
encashment dues upon resignation, as there
is no valid distinction between an employee
retiring, dying in harness, or resigning in
accordance with rules. (Para - 9)

Petitioner's claims for unpaid dues - gratuity, leave
encashment, and interest on delayed payments -
dues on account of medical leave - special pay
under the family planning scheme and other dues
in consonance with the 6th Pay Commission -
respondents delayed payment of gratuity without
justification, and now owe interest. (Para - 2,4)

HELD: - Court orders respondents to pay Leave
encashment dues. Interest on delayed gratuity
payment (6% p.a.). Interest on leave encashment
dues (6% p.a.). Total amount to be paid within 6
weeks. Court dismisses claims for medical leave,
special pay under family planning, and other dues,
finding no legal basis for these entitlements. (Para -
14,15)
Writ Petition allowed. (E-7)

List of Cases cited:

## Text

1508 INDIAN LAW REPORTS ALLAHABAD SERIES
weeks, from the date a certified copy of this
order is produced before him.
----------
(2024) 5 ILRA 1508
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 13460 of 2023

Om Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar Mathur

Counsel for the Respondent:
C.S.C., Sri Ganesh Datt Mishra

(A) Service Law - Claim of Terminal dues -
The U.P. Cooperative Employees Service
Regulations, 1975 - The Right to Information
Act, 2005 - The Constitution of India - Article
300-A - right to property - leave encashment
cannot be taken away without any statutory
provision - Petitioner is entitled to leave
encashment dues upon resignation, as there
is no valid distinction between an employee
retiring, dying in harness, or resigning in
accordance with rules. (Para - 9)

Petitioner's claims for unpaid dues - gratuity, leave
encashment, and interest on delayed payments -
dues on account of medical leave - special pay
under the family planning scheme and other dues
in consonance with the 6th Pay Commission -
respondents delayed payment of gratuity without
justification, and now owe interest. (Para - 2,4)

HELD: - Court orders respondents to pay Leave
encashment dues. Interest on delayed gratuity
payment (6% p.a.). Interest on leave encashment
dues (6% p.a.). Total amount to be paid within 6
weeks. Court dismisses claims for medical leave,
special pay under family planning, and other dues,
finding no legal basis for these entitlements. (Para -
14,15)
Writ Petition allowed. (E-7)

List of Cases cited:

1. Praveen Kumar Vs M.D., PCDF & ors., Service
Single No.18548 of 2016

2. St. of Jharkh. & Ors. Vs Jitendra Kumar
Srivastava & anr., (2013) 12 SCC 210

3. Arun Kumar Das Vs St. of U.P. through
Principal Secy., Dept. of Dairy Development &
anr., Service Bench No.994 of 2011

4. Ram Khelawan Shukla Vs M.D. Pradeshik
Cooperative Dairy Federation Lko. & anr. ,
Service Single No. - 22370 of 2021

5. M.D. Pradeshik Cooperative Dairy Federation
Ltd. & anr. Vs Ram Khelawan Shukla, Special
Appeal Defective No.541 of 2021

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Rakesh Kumar
Mathur, learned Counsel for the petitioner,
Mr. G.D. Mishra, learned Counsel appearing
on behalf of respondent No. 4 and Mr.
Roopesh Tiwari, learned Standing Counsel
appearing on behalf of the State.

2. The petitioner in this writ petition
prays that a writ in the nature of mandamus
be
issued,
directing
the
Chairman,
Committee of Management/ Managing
Director, Pradeshik Cooperative Dairy
Federation Limited to pay the balance of
gratuity due to the petitioner, together with
interest on the entire gratuity paid with
delay, leave encashment dues, dues on
account of medical leave, special pay under
the family planning scheme and other dues
in
consonance
with
the
6th
Pay
Commission.

3. The petitioner says that it is not
in issue that the Project Director, the Project
Engineer, Assistant Project Engineer and
5 All. Om Prakash Vs. State of U.P. & Ors.
1509
Junior Engineers appointed with the NOIDA
Dairy Project, would be placed on
deputation
with
the
National
Dairy
Development Board (for short, 'the NDDB')
till completion of project, and further for the
employees and officers of the NOIDA Dairy
Project, the U.P. Cooperative Employees
Service Regulations, 1975 would govern
their conditions of service until the framing
of separate service rules. The petitioner was
appointed on 11/15.08.1992 as an Assistant
Project Engineer (Civil) with the NDDB,
acting
on
behalf
of
the
Pradeshik
Cooperative Federation Limited (for short,
'the PCDF') on 23.11.1992. He joined as an
Assistant Engineer on 23.11.1992 with the
NOIDA Dairy Project, an autonomous unit
of the PCDF. The petitioner's appointment
letter shows that he would remain on
deputation with the NDDB, wherefrom he
was posted with the NOIDA Dairy Project.
He was repatriated to his parent employer, to
wit, the PCDF. He joined at the PCDF,
NOIDA
Dairy
Project,
NOIDA
on
01.09.1999.

4. After serving the PCDF for 16
years, the petitioner resigned on 27.09.2008,
giving a month's notice. His resignation was
duly accepted by the Chairman, Committee
of Management, Parag Dairy NOIDA,
previously known as NOIDA Dairy. He was
relieved on the same day. He asserts that on
the
day
he
resigned,
the
6th
Pay
Commission had already come into force
and that entitled him to all benefits of
emoluments in terms of the 6th Pay
Commission. The petitioner claimed his due
gratuity, leave encashment of 259 days,
medical leave and what the petitioner calls,
other legitimate dues, including special pay
under the family planning scheme. All these
terminal dues, the petitioner claimed with
interest, on account of the said claims being
illegally withheld. He represented in the
matter time over again. The writ petition is
replete with details of these representations
that the petitioner preferred. His grievance is
that no heed was paid to any of his demands.
He sought information under the Right to
Information Act, 2005 and in response to
one of his applications, he was furnished
with an information dated 15.04.2014 that
gratuity to the tune of Rs.29,000/- had been
paid to the petitioner vide cheque dated
15.05.2012, and Rs.1,15,242/- by a cheque
dated 15.04.2014, after deduction of 10%
out of the total gratuity payable. Thus, a sum
of Rs.1,60,269/- was paid to the petitioner.

5. So far as the leave encashment is
concerned, the petitioner was informed that
since he had resigned from service, all other
claims that the petitioner made, stand
refused. This letter was issued to the
petitioner on 15.04.2014 under the Right to
Information Act. The petitioner being
dissatisfied with the aforesaid disposition of
his claim, addressed repeat representations
to the Milk Commissioner, U.P., Lucknow
and other Authorities of the PCDF. The
petitioner was in the course of this
correspondence
informed
that
leave
encashment is not payable to an employee,
who resigns service, and so also medical
leave. So far as gratuity is concerned, it had
been paid to the petitioner in three
installments.

6. It is the petitioner's case that
gratuity in the three detailed installments,
that were paid to the petitioner, is as follows:
Rs.29,000/-
paid
on
14.05.2012;
Rs.1,15,242/-
on
15.04.2014;
and,
Rs.16,027/- on 27.12.2016. This, according
to the petitioner, does make for a figure of
Rs.1,60,269/-, but in the payment of this
sum of gratuity, there is a delay of eight
years after his resignation. The petitioner
says that it entitles him to interest on the
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
belated payment of gratuity. It is next
pleaded that the Chairman, PCDF, Lucknow,
vide his office order dated 13.09.2002, has
raised the ceiling limit of gratuity from
Rs.2,50,000/- to Rs.3,50,000/-. Therefore,
according to the petitioner, he is entitled to a
sum of Rs.2,16,360/-, going by the number
of years that he put in, instead of
Rs.1,60,269/-, that were worked out on a
gratuity ceiling of Rs.2,50,000/-.

7. So far as the claim to the payment
of dues on account of leave encashment is
concerned, though it is disputed that the
petitioner is entitled to it, because he
resigned, but that leave encashment is
payable in case of an employee upon
superannuation is not in issue. Nothing has
been shown to this Court, where two
affidavits have been filed on behalf of
respondent No.4 that an employee of the
PCDF,
working
with
a
particular
Cooperative
Society,
like
the
fourth
respondent, if resigns, would not be entitled
to leave encashment. This Court also notices
that during the course of hearing of this
petition, an additional sum of Rs.86,546/-
was paid to the petitioner through an
instrument dated 04.11.2023, on account of
revision of gratuity. This was done because
in reckoning the petitioner's salary for the
purpose of post retiral benefits, additional
dearness allowance payable to him, was not
earlier taken into consideration. It is no
longer in dispute for the said reason that the
petitioner has been paid a total sum of
Rs.2,16,360/- in gratuity albeit without
interest, and now as it transpires, the total
sum of gratuity has been paid in four
installments from 14.05.2012 to 04.11.2023,
a
period
spread
across
11
years
approximately.

8. So far as the entitlement to leave
encashment is concerned, it possibly cannot
be denied by the respondents for reason that
in the last pay certificate dated 27.09.2008
drawn for the petitioner, there is a credit of
earned leave, shown due to the petitioner, for
259 days. Now, if this earned leave, which
was not availed, is encashable for an
employee of the PCDF, is clinched in terms
of an office memo dated 13/21.01.2006
issued by the Managing Director/ Chairman,
Administrative Committee, PCDF, that
reads:

"करयरमिय ज्ञरप
प्ररिेदशक कोआपरेदटव डेरी फेडरेशन के कर्मचरररयों एवां
केदन्द्रदयत सेवर के अदिकरररयों को उपरदजमत अवकरश नकिीकरण के
र्ि र्ें 300 दिवस की अदिर्रस सीर्र तक उपरदजमत अवकरश सांचय
करने, सेतर दनवृदत्त से पूवम उपरदजमत अवकरश उपिोग करने यर सेवर
दनवृदत्त के पश्चरत यर र्ृत्यु की िशर र्ें उनके आदश्रतों को नकि िुगतरन
दकए जरने के सम्बन्ि र्ें शरसन द्वररर जररी शरसनरिेश के अनुरूप
िनररदश कर िुगतरन दकए जरने दवषयक प्ररिेदशक कोआपरेदटव डेरी
फेडरेशन दि0 की प्रबन्ि सदर्दत की बैठक दिनरांक 30-03-2005
के प्रस्तरव सांख्यर-10 एवां केदन्द्रदयत सेवर के अन्तगमत गदठत
प्रशरसदनक सदर्दत की बैठक दिनरांक 16-12-2005 के प्रस्तरव
सांख्यर-1 कर अनुर्ोिन िुवि आयुक्त/ दनबन्िक द्वररर िर्शः पत्रांक
869/ िुवि-2/ जनशदक्त दिनराँक 08-12-2005 एवां पत्रांक
985/िुवि- 2/ जनशदक्त दिनराँक 05-01-2005 द्वररर प्रिरन कर
दियर गयर है।
अतः प्ररिेदशक कोआपरेदटव डेरी फेडरेशन दिदर्टेड की
केदन्द्रदयत सेवर के अन्तगमत गदठत प्रशरसदनक सदर्दत एवां प्ररिेदशक
कोआपरेदटव डेरी फेडरेशन दिदर्टेड की प्रबन्ि सदर्दत द्वररर परररत
प्रस्तरव के िर् र्ें िुवि आयुक्त/दनबन्िक द्वररर प्रित्त अनुर्ोिन िर्श:
दिनरांक 08-12-2005 एवां दिनराँक 06-01-2006 र्ें प्ररिेदशक
कोआपरेदटव डेरी फेडरेशन दिदर्टेड के कर्मचरररयों एवां केदन्द्रदयत सेवर
के अदिकरररयों को 300 दिवस की अदिकतर् सी तक उपरदजमत
अवकरश सांचय करने, सेवर दनवृदत्त से पूवम उपरदजमत अवकरश उपिोग
करने यर सेवर दनवृदत्त के पश्चरत यर र्ृत्यु की िशर र्ें उनके आदश्रतों
को नकि िुगतरन दकए जरने की स्वीकृदत प्रिरन की जरती है।
ह0 अपदठत
21.1.06
(सुषर्र दतवररी)
प्रबन्ि दनवेशक/अध्यक्ष (प्रशर0 सदर्दत)
5 All. Om Prakash Vs. State of U.P. & Ors.
1511
करयरमिय प्ररिेदशक कोआपरेदटव डेरी फेडरेशन दिदर्टेड,
29- परकम रोड, िखनऊ
पत्रांक6276 / डी-1/पीईआर/एच/सी0ए0 98
(वरिू-11) दिनरांक 13/21-01-06
प्रदतदिदप सूचनरथम एवां आवश्यक करयमवरही हेतु प्रेदषत:
1- पी0सी0डी0एफ0 की सर्स्त इकरइयों/औ0एफ0,
नरन ओ0एफ0 िुवि सांघ/ पररयोजनरएाँ/ सर्स्त क्षेत्ीय दवप0
करयरमिय तथर सर्स्त प्रदशक्षण केन्द्र।
2- र्हरप्रबन्िक (दवत्त), पीसीडीएफ र्ुख्यरिय,
िखनऊ।
ह0 अपदठत
21.1.06
(सुषर्र दतवररी)
प्रबन्ि दनवेशक/अध्यक्ष (प्रशर0 सदर्दत)"

9. A perusal of the said office memo
shows that an employee of the PCDF
accumulates a maximum of 300 days of
earned leave that he can encash, if not
utilized, upon his retirement, or by his
dependents in the event of his demise. It is on
the foot of this office memo, that decidedly
gives the right to a retiring employee, or one
who dies before retiring, to encash his
accumulated unutilized earned leave up to 300
days, that the respondents say that it would not
apply to a case where an employee resigns.
There is no intelligible differentia shown to
this Court by the respondents between the case
of an employee retiring on superannuation or
dying in harness, and one resigning in
accordance with rules, vis-a-vis his right to
claim leave encashment, that is one of his
terminal dues. In the view that I take, I am
fortified by the opinion of Hon'ble Mr. Justice
Rajesh Singh Chauhan in Praveen Kumar v.
Managing Director, PCDF and others,
Service Single No.18548 of 2016, decided on
27.09.2021, where it has been held by His
Lordship:

"Attention has been drawn towards
Annexure No.CA-1 to the counter affidavit,
which
is
an
office
memo
dated
13/21.01.2006 issued by opposite party no.1
wherein it has been indicated that after
completion of entire period of service, the
employee shall be paid the amount of earned
leave for maximum 300 days. However, in
the aforesaid office memo, it has not been
indicated that in case of resignation, such
payment shall not be made.
Therefore, learned counsel for the
petitioner has submitted that without there
being any basis, the claim of 234 days of
earned leave has been denied. Sri Sanjay
Kumar Srivastava has submitted that
whatever amount has been earned by the
employee during his period of service, the
same would be paid to such employee. In the
present case, it is an admission on the part of
the opposite parties that the petitioner has
earned the amount of leave encashment for
234 days. At this stage, Sri Srivastava has
placed reliance upon the dictum of the Apex
Court in re; State of Jharkhand and
Others v. Jitendra Kumar Srivastava and
Another, (2013) 12 SCC 210, whereby the
Apex Court has held that leave encashment
cannot be taken away without any statutory
provision. 'Earned leave', which is created
by the statute, partakes the character of an
emolument protected as a right to property
of the concerned Government Servant under
Article 300-A of the Constitution of India.
Considering
the
facts
and
circumstances of the issue in question and
perusing the material available on record,
the opposite parties could not demonstrate
any statutory provision taking away the
amount of leave encashment. The Apex
Court in re; Jitendra Kumar Srivastava
(supra) has clearly held that the amount of
leave encashment cannot be taken away
without any statutory provision."

10. To the same effect is the holding
of this Court in Arun Kumar Das v. State
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
of U.P. through Principal Secretary,
Department of Dairy Development and
another, Service Bench No.994 of 2011,
decided on 13.02.2020. There is, therefore,
no reason for the respondents to have denied
the payment of dues on account of leave
encashment for reason alone that the
petitioner had resigned from service, though
in accordance with rules and not retired or
passed away in harness. This kind of a
narrow interpretation cannot be placed upon
the
terms
of
the
circular
dated
13/21.01.2006 issued by the Managing
Director/
Chairman,
Administrative
Committee, PCDF. If that were done, it
would
certainly
militate
against
the
principles enshrined in Article 300-A of the
Constitution.

11. Now, the next question that
arises for consideration is if on the delayed
payment of gratuity, which the respondents
have admittedly paid in four installments,
spread across 11 years approximately from
14.05.2012 to 04.11.2023, interest is
payable to the petitioner.

12. I had occasion to consider this
issue while sitting at Lucknow in Service
Single No. - 22370 of 2021, Ram
Khelawan Shukla v. M.D. Pradeshik
Cooperative Dairy Federation Lko. &
Another, decided on 25.10.2021, where I
held:

"Now, the petitioner presses for
payment of interest due on the much belated
payment of the substantial sum of his
gratuity.
The
impugned
order
dated
21.06.2021 has been passed holding that
there is no delay in payment of the
petitioner's gratuity, as it was dependent
upon availability of funds. About the order
of the Managing Director dated 21.06.2021,
this Court must remark that it is not only
manifestly illegal but contumacious. This
Court had clearly held inter partes in Service
Single No.22272 of 2020 that financial
stringency or precarious financial condition
is not a ground to delay payment of post
retiral benefits of an employee, holding so,
on the strength decisions of their Lordships
of the Supreme Court in D.S. Nakara (supra)
and
Kapila
Hingorani
(supra).
The
Managing Director, in writing the same
reasoning to deny interest, has not only
transgressed his office and passed an illegal
order, but also virtually said something in
contempt of the judgment dated 25.11.2020
passed by this Court inter partes. This Court
does not wish to enter into that issue as in
these writ proceedings, that is not the office
or the frame of the cause. Apart from the fact
that non-availability of funds is not a ground
to delay payment of post retiral benefits of
an employee like the petitioner here, what
has been belatedly paid to the petitioner is
his gratuity and it is a common ground
between parties that the Payment of Gratuity
Act, 1972 applies.
Sub-sections (3) and (3-A) of
Section 7 of the Payment of Gratuity Act,
1972 read:
"(3) The employer shall arrange to
pay the amount of gratuity within thirty days
from the date it becomes payable to the
person to whom the gratuity is payable.
(3-A) If the amount of gratuity
payable under sub-section (3), the employer
shall pay, from the date on which the
gratuity become payable to the date on
which it is paid, simple interest at such rate,
not exceeding the rate notified by the
Central Government from time to time for
repayment of long-term deposits, as that
Government may, by notification specify:
Provided that no such interest shall
be payable if the delay in the payment is due
to the fault of the employee and the
employer has obtained permission in writing
5 All. Kulpavitra Tyagi Vs. Board of Revenue, Meerut & Ors.
1513
from the controlling authority for the
delayed payment on this ground."
Clearly, any delay in payment of
gratuity after thirty days carries interest
payable at the rate that is payable on longterm deposits that the Government may, by
notification, specify. Taking note of the
prevalent rates of interest provided on longterm deposits, the delay in payment of the
sum of gratuity to the petitioner, which is
beyond thirty days, from his retirement,
ought to carry simple interest at the rate of
6% per annum. In the opinion of this Court,
the impugned order by the reasoning
indicated, cannot be sustained."

13. The decision of mine in Ram
Khelawan Shukla (supra) was affirmed by
the Division Bench in M.D. Pradeshik
Cooperative Dairy Federation Ltd. and
Another v. Ram Khelawan Shukla, Special
Appeal Defective No.541 of 2021, decided
on 23.12.2021, to which the attention of the
Court was drawn by the learned Counsel for
the
petitioner
towards
the
close
of
arguments in this case.

14. There are certain other dues,
which the petitioner presses his claim about
and these are on account of medical leave,
special pay under family planning and then
that elusive description: other dues in
consonance with the 6th Pay Commission.
This Court, upon hearing the learned
Counsel and perusing the record, does not
find that any foundation has been laid for the
said entitlement by the petitioner in
accordance law and we cannot accede to that
part of the petitioner's prayer.

15. In the result, this petition
succeeds and is allowed in part. A writ in the
nature of mandamus is issued, ordering
respondent Nos.2, 3 and 4 to ensure amongst
themselves payment of leave encashment
dues to the petitioner and interest on the
delayed payment of gratuity @ 6% simple
annual calculated in the manner that interest
would run from a month after the date of the
petitioner's resignation till payment of the
relative part of the due gratuity. The leave
encashment dues shall also carry simple
interest @ 6% per annum, reckoned from a
month after the petitioner's resignation till
the said dues are paid. The entire sum of
money on account of interest on the belated
payment of gratuity, dues on account of
leave encashment and interest thereon, shall
be paid within a period of six weeks from
the date of receipt of a copy of this judgment
by the respondents.

16. Let a copy of this judgment be
forwarded to the Managing Director, PCDF,
the Chairman, PCDF and the General
Manager, Gangol Sahkari Dugdh Utpadak
Sangh Limited, Partapur, Meerut by the
Registrar (Compliance).
----------
(2024) 5 ILRA 1513
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 54273 of 2014

Kulpavitra Tyagi ...Petitioner
Versus
Board of Revenue, Meerut & Ors.
 ...Respondents

Counsel for the Petitioner:
P.R. Maurya, Amitabh Agarwal, Shashank Maurya

Counsel for the Respondent:
C.S.C., Mahesh Narain Singh, Sunil Kumar Singh

Civil
Law
Uttar
Pradesh
Zamindari
Abolition and Land Reforms Act, 1950. -