R. S. A. No. 3767 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3767 of 2009 (O&M) Date of Decision : June 30, 2010 The Managing Director, Haryana State Minor Irrigation and Tubewell Corporation Limited, Chandigarh .... Appellant Vs. D. R. Grover and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. D. K. Khanna, Advocate for the appellant. Mr. Virender Kumar, Advocate for respondents no.1 to 4. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendant no.2 - The Managing Director, Haryana State Minor Irrigation and Tubewell Corporation Limited (in short – HSMITC). Suit was filed by respondents no.1 to 4 along with one Om Parkash Raheja against appellant and State of Haryana. The plaintiffs were working in HSMITC and retired on attaining the age of superannuation. The plaintiffs in the suit claimed various benefits, but in the instant second R. S. A. No. 3767 of 2009 (O&M) 2 appeal, the dispute relates to entitlement of the plaintiffs to encashment of earned leave for 300 days. The plaintiffs were granted encashment of leave for 30 days only as they had been paid gratuity under the Payment of Gratuity Act, 1972 (in short – the Act). The plaintiffs, however, claimed benefit of State Civil Services Rules, as applicable to HSMITC, to stake claim to encashment of earned leave for 300 days. Learned Civil Judge (Junior Division), Karnal, vide judgment and decree dated 05.09.2006, dismissed the plaintiffs' suit. Only plaintiffs no.2 to 5 (respondents no.1 to 4 herein) preferred first appeal, which has been partly allowed by learned Additional District Judge, Karnal, vide judgment and decree dated 20.01.2009. Thereby, suit filed by respondents no.1 to 4 has been decreed partly declaring that they are entitled to leave encashment up to 300 days along with interest @ 10% per annum from due date till payment. Feeling aggrieved, the instant second appeal has been preferred by defendant no.2. I have heard learned counsel for the parties and perused the case file. Following substantial question of law arises for determination in the instant second appeal :- “Whether plaintiffs are entitled to encashment of earned leave for 300 days, as per State Civil Services Rules in spite of R. S. A. No. 3767 of 2009 (O&M) 3 having taken the gratuity under the Act ?” Learned counsel for the appellant vehemently contended that the aforesaid question stands authoritatively determined in favour of the appellant by Division Bench of this Court, vide judgment dated 25.03.2004 in C. W. P. No. 6866 of 2002 titled Haryana State Minor Irrigation and Tubewells Corporation Limited, Chandigarh vs. Tilak Raj Sharma and others. On the other hand, learned counsel for the respondents contended that the aforesaid judgment dated 25.03.2004 is not applicable to the instant case as the plaintiffs have not exercised option pursuant to instructions dated 27.05.1992 and therefore, in view of instructions Ex.D-8 and Ex.D-9, the plaintiffs are entitled to encashment of earned leave for 300 days, as per rules of Government adopted by HSMITC. I have carefully considered the rival contentions. Judgment in the case of Tilak Raj Sharma (supra) is fully applicable to the instant case. It has been categorically laid down in the said case that an employee cannot have best of both the worlds. The employee can either have gratuity under the Act with encashment of leave for 30 days or can have gratuity under the Civil Services Rules with leave encashment of 300 days. Under instructions Ex.D-8, as reproduced at page 57 of the paper book in the impugned judgment of the lower appellate court, HSMITC adopted rules of Government for purpose of gratuity, leave R. S. A. No. 3767 of 2009 (O&M) 4 encashment and other purposes. It is thus manifest from the instructions that an employee can either have gratuity under the Act with leave encashment of 30 days only or can have gratuity under the Civil Services Rules of the Government with leave encashment of 300 days. However, the plaintiffs cannot have best of both the worlds. The plaintiffs have admittedly received the gratuity under the Act and therefore, they are entitled to leave encashment for 30 days only. In view of the aforesaid, the substantial question of law framed herein above, is answered accordingly in favour of the appellant. Consequently, the instant appeal is allowed and judgment and decree dated 20.01.2009 passed by the lower appellate court are set aside and judgment and decree dated 05.09.2006 passed by the trial court are restored and suit filed by the plaintiffs stands dismissed. C. M. Nos. 11501-02-C of 2009 : Dismissed as infructuous. June 30, 2010 ( L. N. MITTAL ) monika JUDGE