Rajapandian P. v Fertilisers and Chemicals Travancore Ltd. , FACT Ltd. and Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.37930 of 2018** ## **PETITIONER:** **RAJAPANDIAN P. AGED 27 YEARS S/O.LATE PERUMAL, NADU STREET, THENKALAM, THIRUNELVELI, TAMILNADU-627 357, PRESENTLY RESIDING PLOT NO.101, SIVANIVAS, THALAMPOO STREET, POOMPPOZHIL NAGAR, AVADI, CHENNAI-600 054** **BY ADV. SRI.M.P.PRAKASH** ## **RESPONDENTS:** |**1**|**THE FERTILISERS AND CHEMICALS TRAVANCORE LTD.**| |---|---| ||**REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,**| ||**UDYOGAMANDAL, KOCHI-683 501.**| |**2**|**THE CHAIRMAN AND MANAGING DIRECTOR**| ||**FACT LTD., UDYOGAMANDAL, KOCHI - 683 501.**| |**3**|**THE GENERAL MANAGER (HR)**| ||**FACT LTD., UDYOGAMANDAL, KOCHI - 683 501.**| |**4**|**UNION OF INDIA**| ||**REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE,**| ||**BUREAU OF PUBLIC ENTERPRISE, NEW DELHI - 110 001.**| ||**BY ADVS.**| ||**SRI.M.GOPIKRISHNAN NAMBIAR**| ||**SRI.V.R.RAKESH, CGC**| ||**SRI.JOSON MANAVALAN**| ||**SRI.K.JOHN MATHAI**| ||**SRI.KURYAN THOMAS**| ||**SRI.PAULOSE C. ABRAHAM**| ||**SRI.P.GOPINATH (SR.)**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.37930/18 2 ## **JUDGMENT** ## 1. This writ petition is filed seeking the following reliefs:- “i)Call for the records leading to Ext.P14 and quash the same by issuance of a writ of certiorari or any other appropriate writ, direction or order; ii)To declare that the denial of the right to transfer the accrued privilege leave while in service of the 1[st] respondent to M/s.Chennai Petroleum Corporation Ltd is illegal, arbitrary, unreasonable, unfair and violative of the rights guaranteed under Articles 14,16,21 and 300A of the Constitution; iii)To issue a writ of mandamus or any other writ, direction or order commanding the respondents 1 to 3 to allow the petitioner to get the earned privilege to his credit at the time of the cessation of employment with the 1[st] respondent, transferred to M/s.Chennai Petroleum Corporation Ltd. by directing the 1[st] respondent to remit the cash equivalent of the earned leave in lump sum together with the notice pay, estate duty and retention amounts retained at the time of the technical resignation, to M/s.Chennai Petroleum Corporation Ltd within a time frame that my be fixed by this Hon'ble Court, Alternatively. iv) To declare that the denial of encashment of earned leave and half pay leave up to 300 days accrued to the credit of the petitioner while in service of the 1[st] respondent is illegal, arbitrary, unreasonable, unfair and violative of the rights guaranteed under Articles 14,16,21 and 300A of the Constitution. v)To issue a writ of mandamus or any other writ, direction or order commanding the respondents 1 to 3 to allow the petitioner to encash the privilege leave to his credit at the time of the cessation of employment with the 1[st] respondent, together with the notice, pay, estate duty and retention amounts retained at the time of the technical resignation, with penal interest, within a time frame that may be fixed by this Hon'ble Court.” W.P.(C).No.37930/18 3 2. The petitioner, who had joined service of the 1[st] respondent company as Process Technician, had submitted his resignation to join service of the Chennai Petroleum Corporation Limited. It is submitted that he had attended the selection on the basis of the specific permission issued by competent authority under the 1[st] respondent. The petitioner contends that an amount of Rs.15000/- was withheld by the respondents as retention amount and the earned leave surrender benefits due to the petitioner had not been paid on the ground that the petitioner, who had resigned from service is not entitled to such benefits. It is further contended that this Court, in Exhibit P16 judgment had considered the issue of grant of earned leave encashment in respect of officers of the 1[st] respondent, who had resigned from service. After considering the contentions advanced on both sides and the contention regarding the freezing of the entitlement of leave encashment by the pay revision order, this Court held that the facility of leave encashment, which is applicable as per the rules is liable to be granted to all employees who leave service of the company, except those dismissed for misconduct. W.P.(C).No.37930/18 4 3. A counter affidavit has been placed on record by respondents 1 to 3. It is stated that the petitioner, who had been appointed as Process Technician cum Apprentice, is a workman under the Industrial Disputes Act and that the writ petition is, therefore, not maintainable. It is stated that some of the recovered amounts like retention amounts had been refunded to the petitioner as per the procedure followed by the company. With regard to leave encashment, it is stated that as per Clause 17 of the Conciliation Settlement dated 28.08.2001, the Scheme of leave encashment was frozen w.e.f. 12.7.2014 except as a terminal benefit in respect of retirement and death cases. It is stated that the petitioner's representations have been considered in detail and Exhibit P14 order has been passed, denying the benefits to the petitioner. 4. It is contended that going by the provisions of Section 37 of the Industrial Disputes Act, any interpretation of the provisions of a settlement have to be taken up before the ## W.P.(C).No.37930/18 5 Labour Court and this Court would not be justified in considering the writ petition which essentially amounts to the interpretation of the the benefit of the settlement. 5. The decisions of the High court of Madras in **Minerals Worker's Union Manavalakuruchi v. Indian Rare Earths Ltd.** [2006 III Labour Law Journal 943] is relied on to contend that where a clause of a bipartite settlement between the workmen and the company is to be construed, the proper forum to be approached is the Labour Court or the Industrial Tribunal. 6. I have considered the contentions advanced. The issue raised in this writ petition is covered in favour of the petitioners by Exhibit P16 judgment. The only distinction pointed out by the learned counsel for the respondents is that the petitioners in Exhibit P16 judgment were managerial employees, who were governed by the provisions of the pay revision orders and the petitioner herein is a workman, who is governed by the terms of bipartite settlement between the Management and the Union. W.P.(C).No.37930/18 6 7. I am of the opinion that the terms of the pay revision order and the bipartite agreement are identical. The claim of the petitioner is, therefore, covered, in principle, by the judgment of this Court as applicable to officers of the respondent. In the above of the view of the matter, the contention that the petitioner will have to approach the Labour Court, since what is under dispute is an interpretation of a bipartite settlement, according to me, is misconceived. Rule 9(2) of the CCS (leave) Rules and the provisions of the Factories Act also support the position that an employee who leaves a pensionable service to take up another service after following due procedure is entitled to reckon the leave to his credit in the latter establishment as well. The respondents have not brought to my attention any provision that disentitles the petitioner to count the leave to his credit. 8. The freezing of the benefits of earned leave surrender by pay revision orders have been considered by this Court in Exhibit P1 judgment and it has been held that officers of the respondent are entitled to the payment on earned leave surrender benefits in terms of the Leave Rules applicable in the company. Exhibit P16 judgment had been taken in appeal and a Division Bench of this W.P.(C).No.37930/18 7 Court in a decision reported in **F.A.C.T Limited v. Augustine** [2018 (2)KLT 17] had considered the issue and held that encashment of leave is to be permitted in all cases of cessation of service for any reason other than dismissal for misconduct. Even if the petitioner herein is now relegated to the Labour Court, the conclusion can be no different. It is pertinent to note that the petitioner had approached this Court earlier and Exhibit P13 judgment had been issued directing the respondents to consider the claim of the petitioner. No objection had then been raised that the Labour Court ought to have been approached in the matter. 9. In any view of the matter, since the issue raised stands covered by Exhibit P16 judgment as affirmed in appeal and since no specific differentiating factors in the Leave Rules applicable to workers have been brought to my notice, I am of the opinion that the petitioner is entitled to succeed in the writ petition. - 10.Exhibit P14 is set aside. There will be a direction to the respondents to release the earned leave encashment to which the petitioner is entitled as per the rules at the earliest. Any W.P.(C).No.37930/18 8 amounts retained by the respondents shall also be released without delay. Appropriate action shall be taken within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.37930/18 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE CONFIRMATION LETTER DATED 07.06.2011.** **EXHIBIT P2 A TRUE COPY OF INTIMATION DATED 07.12.2017.** **EXHIBIT P3 A TRUE COPY OF THE NOC AND EXPERIENCE CERTIFICATE DATED 13.06.2017.** **EXHIBIT P4 A TRUE COPY OF THE TECHNICAL RESIGNATION DATED 19.08.2017.** **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 26.08.2017.** **EXHIBIT P6 A TRUE COPY OF THE FINAL SETTLEMENT OF ACCOUNTS DATED 18.08.2017. EXHIBIT P7 A TRUE COPY OF THE RELIEVING ORDER DATED 18.09.2017. EXHIBIT P8 A TRUE COPY OF THE SERVICE CERTIFICATE 18.09.2017.** **EXHIBIT P9 A TRUE COPY OF THE SALARY STATEMENT FOR THE MONTH OF SEPTEMBER, 2017. EXHIBIT P10 A TRUE COPY OF THE REMINDER LETTER DATED 20.11.2017.** **EXHIBIT P11 A TRUE COPY OF THE OM DATED 14.12.1982 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P12 A TRUE COPY OF THE OM DATED 25.07.1985 ISSUED BY TH 4TH RESPONDENT.** **EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED 10.04.2018 IN W.P(C) NO. 10845/2018 OF THIS HON'BLE COURT.** W.P.(C).No.37930/18 10 **EXHIBIT P14** **A TRUE COPY OF THE LETTER DATED 24.09.2018 OF THE 3RD RESPONDENT.** **EXHIBIT P15** **A TRUE COPY OF THE O.M. DATED 27.08.2018.** **EXHIBIT P16** **A TRUE COPY OF THE JUDGMENT DATED 11.01.2017 IN W.P.(C)NO.31700/2014 OF THIS HON'BLE COURT.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 A** TRUE COPY OF THE RELEVANT PAGES OF DPE OM NO.20(5)/95-DPE(GM) DATED 10.12.1997. **EXHIBIT R1 B** TRUE COPY OF THE DPE'S OM NO.6(6)/88(COORD) DATED 08.04.1991 OF THE DPE. True copy PS to Judge