Kerala High Court
Bhat Krishna Mahabaleswar vs Fertilizers And Chemicals Travancore ... on 1 January, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938
WP(C).No. 31700 of 2014 (J)
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PETITIONER(S):
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BHAT KRISHNA MAHABALESWAR
BANEKA II CROSS SUBHASH NAGAR,SORABA
ROAD, SAGAR,SHIMOGA,KARNATAKA 577 401
BY ADVS.SRI.K.BALACHANDRAN (MANGALATH)
SRI.RAJESH NAIR
SRI.BIJOY CHANDRAN
RESPONDENT(S):
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1. FERTILIZERS AND CHEMICALS TRAVANCORE LTD
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR
CORPORATE OFFICE ,UDYOGAMANDAL,PIN 683501
2. THE CHAIRMAN & MANAGING DIRECTOR,
FERTILIZERS AND CHEMICALS TRAVANCORE LTD,
CORPORATE OFFICE,UDYOGAMANDAL,PIN 683501,
ERNAKULAM DISTRICT,KERALA STATE
3. THE CHIEF MANAGER (HR)
HUMAN RESOURCES DEPARTMENT,FERTILIZERS AND
CHEMICALS TRAVANCORE LTD, FEDO
BUILDING, UDYOGAMANDAL, PIN 683501,
ERNAKULAM DISTRICT,KERALA STATE
R1 TO R3 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15/12/2016 ALONG WITH WPC NO.33684/2015, THE COURT
ON 11-01-2017 DELIVERED THE FOLLOWING:
bp
WP(C).No. 31700 of 2014 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: COPY OF THE NOTICE OF RESIGNATION DATED
01-01-2014 SENT BY THE PTR.
EXHIBIT P2: COPY OF THE SALARY STATEMENT OF THE PTR FOR
THE MONTH OF APRIL,2014
EXHIBIT P3: COPY OF THE SALARY STATEMENT OF THE PTR. FOR
THE MONTH OF APRIL,2014
EXHIBIT P4: COPY OF THE COMMUNICATION DATED 02-04-2014 AS
TO ACCEPTANCE OF RESIGNATION OF THE PTR.
EXHIBIT P5: COPY OF THE LETTER DATED 03-06-2014 ISSUED BY
THE 3RD RESPONDENT
EXHIBIT P6: COPY OF THE LETTER DATED 24-07-2014 OF THE PTR
ADDRESSED TO THE 2ND RESP.
EXHIBIT P7: COPY OF THE LETTER DATED 26-09-2014 ISSUED BY
THE 3RD RESPONDENT
EXHIBIT P8: COPY OF THE PAY REVISION ORDER
DATED 28-08-2001
EXHIBIT P9: COPY OF THE PAY REVISION ORDER
DATED 14-08-2010
EXHIBIT P10: COPY OF THE SALARY STATEMENT OF SRI. JANARDHAN
BHAT (B.NO.13245) FOR THE PERIOD JANUARY,
2013.
EXHIBIT P11: COPY OF THE SALARY STATEMENT OF SRI. JANARDHAN
BHAT (B.NO.13245), FOR THE PERIOD JULY.2014.
EXHIBIT P12: COPY OF THE SALARY STATEMENT OF SRI. JANARDHAN
BHAT (B.NO.13245), FOR THE PERIOD JANUARY,
2015
EXHIBIT P13: COPY OF THE STATEMENT OF SRI.JANARDHAN BHAT
(B.NO.13245), FOR, THE PERIOD JANUARY, 2015.
EXHIBIT P14: COPY OF THE CERTIFICATE DT 22/12/2012 ISSUED
TO THE PETITIONER FROM THE ST. JOHN'S MEDICAL
COLLEGE HOSPITAL, BANGALORE
WP(C).No. 31700 of 2014 (J)
RESPONDENT(S)' EXHIBITS :
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EXT.R1(a): COPY OF THE ORDER DT 11/7/2001OF THE DEPUTY
SECRETARY TO THE GOVERNMENT OF INDIA.
EXT.R1(b): COPY OF THE ORDER NO. ED(HRD).CO-ORD - 69 DT
28/8/2001 OF FERTILIZERS AND CHEMICALS
TRAVANCORE LIMITED.
EXT.R1(c): COPY OF THE ORDER DT 3/8/2010 PASSED BY THE
GOVERNMENT OF INDIA, MINISTRY OF CHEMICALS &
FERTILIZERS (DEPARTMENT OF FERTILIZERS).
EXT.R1(d): COPY OF THE OFFICE MEMORANDUM NO. 2(70)/08-DPE
(WC) DT 26/11/2008 OF GOVERNMENT OF INDIA,
MINISTRY OF HEAVY INDUSTRIES & PUBLIC
ENTERPRISES, DEPARTMENT OF PUBLIC ENTERPRISES,
DEPARTMENT OF PUBLIC ENTERPRISES.
EXT.R1(e): COPY OF THE JUDGMENT DT 6/8/2012 IN WPC
NO. 21148/2007 (P) OF THIS HONOURABLE COURT.
//TRUE COPY//
P.A. TO JUDGE
bp
ANU SIVARAMAN, J.
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W.P(C).No. 31700 of 2014
&
W.P(C).No.33684 of 2015
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Dated this the 11th January, 2017
JUDGMENT
The common issue raised in these writ petitions is with regard to the entitlement of employees, who resigned from the service of the respondent Company to the benefits of earned leave encashment.
2. The petitioner in W.P(C).No.33684 of 2015 while working as Deputy Chief Manager (HR) had applied for appointment in the Kochi Metro Rail Ltd. and had been permitted to participate in the selection procedure. On being selected for appointment, the 1st respondent refused to permit him to proceed on deputation and he was forced to submit his resignation to take up the employment in the Kochi Metro Rail Ltd. The petitioner relies on Exhibit P3 leave rules to contend that encashment of leave is permissible on cessation of employment due to any reason whatsoever other than dismissal for misconduct. The petitioner challenges the orders of the respondents rejecting his request for encashment of earned leave on resignation.
WP(C).31700 & 33684/15 2
3. The petitioner in W.P(C).No.31700 of 2014 resigned due to medical reasons, since he suffered a brain hemorrhage in August, 2012. He had 248 days of privileged/paid leave and 143 days of medical leave to his credit as on the date of his resignation on 2.1.2014. The resignation was accepted by the respondents by Exhibit P4 communication with effect from 2.4.2014. However, his request for earned leave encashment was rejected by Exhibits P5 and P7 communications by the 1st respondent on the ground that leave encashment is not permitted in the case of employees who leave the organisation on account of resignation.
4. Heard Advocates Sri.Prakash M.P and Sri.Bijoy Chandran, learned counsel for the petitioners, Advocate Sri.Benny Thomas appearing for the FACT and the learned Assistant Solicitor General of India appearing for the Union of India.
5. The petitioners contend that the pay revision effected by Exhibit P8 order dated 28.8.2001 contained a condition that the scheme of leave encashment is frozen from 12.7.2001 except as a terminal benefit in case of retiring and death cases. However, in the subsequent pay revision made applicable to officers by Exhibit P9 order dated 14.8.2010, the said condition was lifted WP(C).31700 & 33684/15 3 and it was specifically provided that the facility of leave encashment as per applicable rules shall be on the basis of revised wages with effect from 1.8.2008. It is, therefore, contended that the petitioners were entitled to encash earned leave on termination of services. The full text of the pay revision order is produced as Exhibit P15 in W.P(C).No.33684 of 2015. It is contended that the applicable leave rules specifically provided for encashment of earned leave on cessation of employment due to any reason whatsoever other than dismissal for misconduct. It is, therefore, contended that the rejection of the claim for earned leave encashment was completely erroneous and unjustifiable.
6. Learned counsel for the petitioner in W.P(C).No.33684 of 2015 would rely on the judgment of this Court in W.P(C).No. 21148 of 2007 to contend that a classification between those who resigned from services and those who left the services on account of death, voluntary retirement and superannuation would be discriminatory. The learned counsel also relies on a decision of the Apex Court in State of Jharkhand v. Jitendra Kumar Srivastava [(2013)12 SCC 210] to contend that pensionary benefits are not bounties, but the rights of employees accrued on account of long years of service.
WP(C).31700 & 33684/15 4
7. A counter affidavit has been filed on behalf of the respondent Company contending that the 2010 pay revision order itself provides for terminal benefits of gratuity and leave encashment on the basis of revised pay to those officers who ceased to be in the service of the Company on superannuation/voluntary retirement/death during the period from 1.1.2007 to 31.7.2008. It is therefore contended that since the cases of resignation are specifically excluded from clause 13 of the pay revision order, the petitioners would not be entitled to claim any benefit. It is further contended that Exhibit P3 leave rules provided for encashment of leave in cases of cessation of employment and such rules have been modified by the pay revision order of 2001 providing that earned leave encashment shall be frozen in cases of resignation. It is therefore contended that since the pay revision order, 2010 does not specifically restore the benefit of earned leave encashment in cases of resignation, the applicable rules would be as modified by the pay revision order of 2001. It is, therefore, contended that the petitioners who resigned from service would have no claim for earned leave encashment.
WP(C).31700 & 33684/15 5
8. I have considered the contentions advanced in detail. It is an admitted fact that the leave rules applicable to officers of the 1st respondent Company provided for leave encashment even in cases of resignation. The said benefit stood frozen by virtue of the 2001 pay revision order. However, in the 2010 pay revision order, which is made applicable to officers of the respondent Company, the leave encashment as per applicable rules was to be on the basis of revised wages. Clause 11 of the pay revision order is as under:
"11.0 Leave Encashment The facility of leave encashment as per applicable rules shall be on the basis of revised wages with effect from 1.8.2008."
9. Having considered the contentions advanced as well as the pleadings and the documents relied on in detail, I am of the definite opinion that the applicable rules made mention of at clause 11 of the pay revision order of 2010 would definitely be Exhibit P3 leave rules extracted in W.P(C).No.33684 of 2015. Those rules provided for earned leave encashment in case of resignation also. The contention of the learned counsel for the respondents to the effect that the provision for freezing of earned leave encashment in the 2001 pay revision order should be seen WP(C).31700 & 33684/15 6 as an amendment to the leave rules cannot be contenanced, since the said provision for a temporary freezing cannot survive the period of operation of the order which brought it into force. Since Exhibit P15 admittedly governs the situation as on the date of effect of the resignation of the petitioners, the entitlement of the petitioners to earned leave encashment has to be examined with reference to Exhibit P3 leave rules read with the 2010 pay revision order.
10. Clause 12 of the pay revision order of 2010 specifies the coverage of the order. Clause 12.0 (1) of the pay revision order of 2010 reads as under:
"12.0 Coverage
1. These orders shall be applicable to all managerial personnel who are on the rolls of the Company as on the date of this order and shall also be applicable to such Officers who were on rolls of the Company as on 1.1.2007 but ceased to be in employment on any date thereafter due to Superannuation/VR/Death subject to conditions mentioned below. This order will not be applicable to those who left the services of the Company on any other account during the period from 1.1.2007 to the date of this order.
11. Clause 12(3)(e) of the pay revision order of 2010 provides that in respect of Officers who leave the services of the Company on or after the date of this order, payment for the period from 1.8.2008 till 31.7.2010 will be made on leaving the services after adjusting the WP(C).31700 & 33684/15 7 amount already paid in instalments. It is, therefore, clear that those officers who leave the services of the Company on any other account after the date of the pay revision order would also be covered by the terms of the order. Clause 13 of the pay revision order of 2010 reads as follows:
"13. Arrears Payment of arrears of basic pay and DA and statutory benefits of PF on account of this pay revision for the period from 1.1.2007 to 31.7.2008 will be reviewed by the Management/Government based on the Company's financial position and its other liabilities towards employees after each financial year after finalization of accounts. The first review shall be after the financial year ending 31.3.2011.
The terminal benefits of Gratuity and leave encashment on the basis of revised pay will however be paid to those officers who ceased to be in the services of the Company on Superannuation/Voluntary Retirement / Death during the period from 1.1.2007 to 31.7.2008. The amount so due will be paid latest by 31.10.2010. In the case of VR, the ex-gratia paid will not be reworked consequent to the pay revision."
12. It is clear from a continued reading of clauses 11, 12 and 13 of the pay revision order of 2010 that earned leave encashment on leaving the services of the Company on resignation would not be paid to those employees who left the services of the Company on resignation only during the period from 1.1.2007 to the date of the pay revision order. This is clearly so, since clause 12 provides for payment to be made to officers WP(C).31700 & 33684/15 8 who leave the services of the Company on or after the date of the pay revision order. Clause 13 provides for the payment of gratuity and earned leave encashment to retired employees. The gratuity has already been paid to the petitioners. There is, therefore, no reasons why the earned leave encashment alone should be denied.
13. Having considered the relevant clauses of the pay revision order of 2010, I am of the opinion that the freezing of the earned leave encashment benefit which was provided for in the pay revision order of 2001 has been expressly taken away by the pay revision order of 2010. Clause 12 makes it clear that the only persons who are excluded from the coverage of the pay revision order of 2010 are those who leave the services of the 1st respondent for reasons other than death, voluntary retirement and superannuation during the period from 1.1.2007 to 14.8.2010.
14. In the above view of the matter, the petitioners in these writ petitions, who are persons retired in 2014 and 2013 respectively are covered by the provisions of the pay revision order of 2010. The contention raised by the learned counsel for the respondents to the effect that the freezing of the earned WP(C).31700 & 33684/15 9 leave encashment benefits which was provided in the pay revision order of 2001 would remain to be in force, is without merit. I am not impressed by the said contention. I am of the opinion that the combined reading of clauses 11, 12 and 13 of the pay revision order would make it clear that the persons who resigned from the services of the 1st respondent Company after the date of the pay revision order would be clearly entitled to earned leave encashment as per the leave rules in force in the Company, a extract of which is produced as Exhibit P3 in W.P(C). No.33684 of 2015.
In the result, these writ petitions are allowed. It is directed that the benefits of earned leave encashment, to which the petitioners in these writ petitions are entitled to, shall be released to them by the 1st respondent within three months from the date of receipt of a copy of this judgment.
The writ petitions are ordered accordingly.
ANU SIVARAMAN JUDGE vgs