- (1.) THE issue involved in the case is the extent of entitlement of a Bank employee to leave encashment, post his retirement when during his service, he had been kept out of service. The petitioner's contention is that the Rule that provides for an accumulation of privilege leave during the service would normally be for 240 days except where the leave had been applied for and it had been refused. This would not apply again where an officer retired from the Bank service and he was eligible to be paid a sum equivalent to the amount of any period of leave that he had accumulated. The portion of privilege leave that can be allowed to be carried over should be availed as earliest possible within three months of the following year, but if this is not possible for any reason and the officer is due to retire, he would be permitted to encash the full to the credit of his privilege leave account even if the same exceeds 240 days. The counsel refers to the instructions contained in a manual in paragraph 16.3.1.
(2.) THE reference to this rule was denied by the respondents by reference to other provisions which were diametrically opposite to the petitioner's contention and, therefore, I had directed the counsel appearing on behalf of the respondents to file an affidavit through an Officer giving specific references to an authenticated circular relating to the provisions for privilege leave and the extent of leave encashment. The circulars issued by the Bank on 27.08.1998 and 16.06.2001 were filed pursuant to the directions of this Court and taken on record as Annexures R-5 and R-6. The rule relating to encashment of the privilege leave in terms of Rule 38 of the State Bank of India Officers Service Rules (for short, 'SBIOSR') is contained below:- "In this connection, the Executive Committee of the Central Board has approved, in its meeting held on the 7th June 2001, that in case of retirement/death, the officer/legal representative(s) of the deceased officer shall be paid an amount equivalent to the emoluments of any period, not exceeding 240 days, of privilege leave that the officer had accumulated at the time of his retirement/death. As of now, where accumulation of privilege leave beyond 240 days is permitted to an officer in terms of the rule 33(4) of the SBIOSR and if it is not possible for the officer to avail leave accumulated beyond 240 days before retirement/death, he/his legal representative(s) is/are paid emoluments of the full balance of privilege leave even if the same exceed 240 days. Further, emoluments for the period of privilege leave accrued during the year of death/retirement but not credited to the privilege leave account of the officer is also paid to him/his legal representative(s). Therefore, in view of the aforesaid change approved by the ECCB, encashment of privilege leave beyond 240 days should not be permitted henceforth."(underlining as found in the circular) The above instructions contain two parts: one, in the case of retired employee, the amount equivalent to the emoluments of any period shall not exceed 240 days of privilege leave and two, a situation of the employee to whom it is not possible to avail of leave accumulated in excess of 240 days. The concluding part must be understood as a general interdict against encashment beyond a period of 240 days and ensure that an employee shall be forced to avail of leave without letting the person accumulate beyond 240 days. There could be truly situations when such availment may be impossible, such as when an employee seeks for leave which he has earned but not sanctioned. In this case, it was perhaps, not the fault of the employee that he could not avail of leave during his service, since his suspension and termination made it impossible for him to even work. In this case, the petitioner had been terminated from service on 26.02.2000 and when his appeal and review were dismissed, it was challenged through a writ petition in CWP No.5545 of 2002. The writ petition was allowed and the Division Bench through its judgment dated 18.11.2003 confirmed the same. When the order of the Court was not complied with, the petitioner had filed a petition for contempt in COCP No.227 of 2005 and the Bank had passed an order on 03.05.2005 after an undertaking from the petitioner for withdrawal of the contempt petition. The petitioner was allowed to retire w.e.f. 30.06.2002 along with pay, wages, allowances, perks etc. Consequently, the petitioner had been served with an order on 03.05.2005 where it was stated that he was deemed to have retired w.e.f. 30.06.2002 and that he would be paid wages and other financial benefits as per his entitlement upto 30.06.2002. The petitioner had been given at that time subsequent to his representation a benefit of leave encashment for 240 days of service rendered upto 28.02.2000 by paying allowances of Rs.1,95,285/-, for the period from 28.02.2000 upto 30.06.2002. The contention was that he was entitled to 77 days for the total number of 851 days between the period 01.03.2000 to 30.06.2002. This entitlement of the petitioner is denied only by the fact that the latter part of the circular, extracted above, shows that the emoluments for the period of privilege leave accrued during the year of retirement but not credited to the privilege leave account shall be paid but the encashment of privilege leave beyond 240 days should not be permitted.
(3.) I would find the answer could be elicited only by posing a question of what a privileged leave or an earn leave connotes, particularly in the Banking industry, being one of the subjects of reference specifically brought before the Tribunal headed by Sr.Justice Kantilal T.Desai (constituted on 21.3.1960 after the expiry of the Sastri Award, as modified) at the instance of the All India Banking Employees Association. Clause 9 of the Desai Award (National Industrial Tribunal decision) dealt with privilege leave. The relevant portions are reproduced for clarity: "9.11 The banks have claimed that as privilege leave is intended for rest and recuperation, it should not be taken in more than two instalments in a year. This demand seems to be reasonable. Banks having numerous employees may have to arrange the leave programme of the employees so as not to disturb the work of the bank. If privilege leave is taken in driblets, it will not serve the purpose for which it is intended to be taken. I therefore direct that workmen will not be entitled to take privilege leave on more than two occasions in a year. This will not include the occasion when a workman has gone on privilege leave but has been recalled. In special circumstances an application may be made for the grant of such leave on more than two occasions in a year and it will then be in the absolute discretion of the bank concerned whether to grant such leave or not. 9.12. The provision of the Sastry Award relating to accumulation of privilege leave beyond 3 months in cases where leave applied for by a workman has been refused require to be modified. In substitution of clause (2) under the heading "Privilege Leave" set out earlier I provide as under:- if leave applied for by a workman has been refused, such workman will be entitled to accumulate leave in excess of the maximum of three months prescribed until such time when the bank is in a position to grant him leave. 9.13. In my view no further modifications are required to be made in connection with the provisions relating to privilege leave. The provisions about leave applicable to A Class and B Class banks under the Sastry Award as modified will apply to A class and B Class banks under this Award. The provisions about leave applicable to C Class banks under the Sastry Award as modified will apply to C Class banks under this Award including banks in the Excepted List." ;