High Court of KeralaSingle Judge2023-01-05Writ petition allowed in part

S. Rajasekharan Nair v. SupplyCo & Ors.

Case / Petition Number:WP(C) No.16152/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2023-01-05
Court Decision / Holding: Ext.P1 charge memo, Exts.P6–P9 notices, Ext.P13 order, and Ext.P22 demand notice set aside. The petitioner is held entitled to statutory interest on the gratuity amount withheld from 31.05.2018 until payment. All other retirement benefits, including earned leave surrender, to be released with interest at 6% per annum from the date of filing of the writ petition until payment. The petition is disposed of accordingly; the writ petition is allowed in part.
Final Disposition: Writ petition allowed in part

Parties to the Case

Appellants / Petitioners

S. Rajasekharan Nair

Respondents

SupplyCo
Kerala Civil Supplies Corporation (SupplyCo)
Additional General Manager (P & A), Kerala Civil Supplies Corporation
Regional Manager, SupplyCo, Thiruvananthapuram
Deputy Tahsildar, Revenue Recovery, Thiruvananthapuram Taluk (Impleaded)

Legal Representation & Advocates

Counsels for Petitioners

• S. Rajeev
• Sri K. K. DheerendraKishnan
• Sri V. Vinay
• Sri D. Feroze
• Sri K. Anand (A-1921)

Counsels for Respondents

• Sri. Molly Jacob, SC, SupplyCo
• Sri. Santosh Peter

Case Synopsis & Summary

This writ petition challenges the disciplinary actions and retirement benefits withheld by SupplyCo and the Kerala Civil Supplies Corporation against S. Rajasekharan Nair, a retired assistant sales manager who retired on 31 May 2018. The petitioner contends that the charge memo (Exhibit P1), several notices (Exhibits P6–P9), the disciplinary order (Exhibit P13) and a demand notice (Exhibit P22) were issued/arose without a proper inquiry, rendering them arbitrary, illegal and violative of due process. He seeks quashing of these records and mandamus to disburse retirement benefits, including gratuity, with 12% interest from the retirement date, and compensation for alleged negligence. The respondents counter that allegations of financial irregularities warranted inquiry and that actions were taken under appropriate rules; however, the court notes no proper enquiry was conducted and no penalty imposed in accordance with law, and that several liabilities were pursued only after retirement. The court cites University of Kerala v. Dr. Sobha (2020 KHC 184) and Tewari D.D. (D) v. Uttar Haryana Bijli Vitran Nigam Ltd. (2014 KHC 4492) to support entitlement to gratuity and due-process considerations. Ultimately, the judge holds that gratuity was improperly withheld and directs payment of statutory interest, along with release of other retirement benefits with 6% interest, and sets aside the challenged records; the petition is disposed of accordingly in part.

Provisions of Law Cited

Payment of Gratuity Act, Section 4

Legal Doctrines & Maxims

Audi alteram partem

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that no proper inquiry was conducted and no penalty imposed in compliance with due process; the charge memo (Exhibit P1) and the subsequent notices (Exhibits P6–P9) are null and void. Since retirement occurred on 31 May 2018, records such as the Ext. P13 order and Ext. P22 demand notice were issued post-retirement, indicating mala fides and abuse of process. The gratuity under the Payment of Gratuity Act was withheld without a valid order; interim payments were made only after court intervention. The petitioner seeks quashing of the records and disbursement of retirement benefits with 12% statutory interest from retirement, and Rs. 50,000 as compensation for negligence. Reliance is placed on University of Kerala v. Dr. Sobha (2020 KHC 184) and Tewari D.D. v. Uttar Haryana Bijli Vitran Nigam Ltd. (2014 KHC 4492).

Contentions of Respondents

The respondents contend that allegations of financial irregularities necessitated inquiry and that the department had grounds to withhold benefits during proceedings. They point to the exhibits and circulars (P15) as support for their actions and maintain that due process requires a disciplined response. They argue that final action (Ext. P13) followed established rules and that withholding gratuity can be lawful during disciplinary processes; however, the court ultimately finds the absence of a proper enquiry invalidating the withholding.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
University of Kerala v. Dr. Sobha and another	2020 KHC 184	Positive	Court relied on this Division Bench decision to support entitlement to gratuity and release of retirement benefits under due process principles.
Tewari D. D. (D) Through LRs. v. Uttar Haryana Bijli Vitran Nigam Ltd. and others	2014 KHC 4492	Positive	Supreme Court decision cited to reinforce due process and entitlement aspects relevant to retirement benefits and gratuity.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944 WP(C) NO.16152 OF 2019** ## **- PETITIONER :** S.RAJASEKHARAN NAIR, AGED 59 YEARS ASSISTANT SALES MAN (RTD), S/O.P.SIVASANKARAN NAIR, BINDU BHAVAN, KIZHAKKUM BHAGOM, PERUMANCHIRA, KAZHAKKUTTAM, THIRUVANANTHAPURAM P.O. - 695 582. BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) ## **- RESPONDENTS :** 1 SUPPLYCO, REPRESENTED BY ITS MANAGING DIRECTOR, MAVELI BHVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM - 682 020. 2 CHARIMAN AND MANAGING DIRECTOR, KERALA CIVIL SUPPLIES CORPORATION, SUPPLYCO, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM - 682 020. 3 ADDITIONAL GENERAL MANAGER (P & A), KERALA CIVIL SUPPLIES CORPORATION, SUPPLY CO, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM - 682 020. 4 REGIONAL MANAGER SUPPLYCO, THIRUVANANTHAPURAM - 695 001. ADDL.5 THE DEPUTY TAHSILDAR, REVENUE RECOVERY, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM - 695 541 [ADDL.R5 IS IMPLEADED AS PER ORDER DATED 14/07/2022 IN I.A NO.4/22 IN WP(C) 16152/2019] WP(C) NO.16152 OF 2019 -: 2 :- BY ADVS. SMT.MOLLY JACOB, SC, SUPPLYCO SRI.SANTHOSH PETER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.16152 OF 2019 -: 3 :- ## JUDGMENT ## Dated this the 5th day of January, 2023 ## This writ petition is filed seeking the following reliefs :- - “(i) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P1 charge memo and quash the same as arbitrary, illegal and against documentary evidence. - (ii) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P6, P7, P8, P9 and quash the same as arbitrary and illegal. - (iii) To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P13 and quash the same as arbitrary, illegal and violative of the principle of audi alteram partem and against departmental enquiry procedures. - (iv) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 2 and 3 to disburse the retirement benefits of the petitioner including gratuity with 12% interest from 31.05.2018. - (v) To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 1 and 2 to grant compensation of Rs.50,000/- for the gross latches and negligence on the part of the respondent 3 and 4 in not complying with Exhibit P15 circulars.” 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. WP(C) NO.16152 OF 2019 -: 4 :- 3. Having heard the learned counsel appearing on either side at considerable length, I notice that the petitioner had retired from service on 31.5.2018. Though several contentions have been raised in the counter affidavit stating that the petitioner had misappropriated amounts, I notice that no proper enquiry had been conducted against the petitioner and no penalty imposed following the procedure known to law. The alleged finalisation of the disciplinary proceedings by Ext.P13 order dated 13.3.2019 is without conducting any enquiry and without entering a specific finding as to the guilt of the petitioner. With regard to the other liabilities sought to be fastened against the petitioner also, I notice that the notices have been issued to the petitioner only after he retired from service on 31.5.2018. It is an admitted case that gratuity was payable to the petitioner in terms of the provisions of the Payment of Gratuity Act. Pursuant to interim orders issued by this Court, it is submitted that gratuity has also been paid to the petitioner. 4. The learned counsel for the petitioner places reliance on the decision of a Division Bench of this Court in University WP(C) NO.16152 OF 2019 -: 5 :- of Kerala v. Dr. V. Sobha and another [2020 KHC 184] as also a decision of the Hon'ble Supreme Court in Tewari D. D. (D) Thr. Lrs. v. Uttar Haryana Bijili Vitran Nigam Ltd. and others [2014 KHC 4492]. 5. In terms of Section 4 of the Payment of Gratuity Act, I am of the opinion that there was no valid order by which the gratuity due to the petitioner would have been forfeited or withheld by the respondents. The petitioner was entitled to payment of gratuity immediately on his retirement or at any rate, at least, within a period of three months thereafter. In the facts and circumstances of the instant case, I am of the opinion that the petitioner will be entitled to statutory interest on the gratuity which has been withheld by the respondents till the same was released pursuant to orders of this Court. There will, accordingly, be a direction to the respondents to pay statutory interest to the petitioner for the amount of gratuity withheld from him from 31.5.2018 till the date of payment. In the result, Ext.P1 charge memo, Exts.P6 to P9 notices, Ext.P13 order and Ext.P22 demand notice are set aside. WP(C) NO.16152 OF 2019 -: 6 :- The learned counsel for the petitioner would contend that there are other retirement benefits payable to the petitioner including earned leave surrender and other amounts due. In the facts and circumstances of the case and having found that the fixation of liability against the petitioner is bad in law, I am of the opinion that all other retirement benefits including earned leave surrender are also to be released to the petitioner. Such amounts shall carry interest at the rate of 6% per annum from the date of filing of the writ petition till the date of payment. This writ petition is ordered accordingly. Sd/ANU SIVARAMAN JUDGE Jvt/9.1.2023 WP(C) NO.16152 OF 2019 -: 7 :- ## **APPENDIX OF WP(C) 16152/2019** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 THE TRUE COPY OF THE CHARGE MEMO NO. B10.1016/2002 (5) UNDATED ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P2 THE TRUE COPY OF THE REPLY DATED 31.1.2012 TO THE CHARGE MEMO.** - **EXHIBIT P3 THE TRUE COPY OF THE LETTER DATED 16.3.2012 ADDRESSED TO THE ASSISTANT MANAGER, DISTRICT DEPOT, VALIYATHURA** - **EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 9.5.2012 ADDRESSED TO THE 4TH RESPLENDENT.** - **EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED 26.9.2012 ADDRESSED TO THE ASSISTANT MANAGER.** - **EXHIBIT P6 THE TRUE COPY OF THE NOTICE IAW1-2391/18 DATED 31.1.2018 OF THE AUDIT MANGER ALONG WITH REPLY DATED 15.3.2018** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 3.5.2018 MANAGER AUDIT AND INSPECTION.** - **EXHIBIT P8 TRUE COPY OF THE NOTICE NO. IAW 7-23723/2018 DATED 27.9.2018 AND THE REPLY OF PETITIONER** - **EXHIBIT P9 THE TRUE COPY OF THE NOTICE NO. IAW 1-23644/2018 DATED 3.9.2018 AND THE REPLY OF PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 5.10.2018 SUBMITTED TO THE 2ND RESPONDENT.** - **EXHIBIT P11 THE TRUE COPY OF THE REPRESENTATION DATED 5.12.2018 SUBMITTED TO THE 2ND RESPONDENT.** - **EXHIBIT P12 THE TRUE COPY OF THE RTI APPLICATION DATED 21.1.2019 ALONG WITH THE REPLY DATED 18.2.2019** - **EXHIBIT P13 THE TRUE COPY OF THE ORDER NO. T9-10189/2001 DATED 13.3.2019 OF 4TH RESPONDENT.** WP(C) NO.16152 OF 2019 -: 8 :- **EXHIBIT P14 THE TRUE COPY OF THE REPLY DATED 15.3.2019 GIVEN BY THE SPIO OF THE 1ST RESPONDENT CORPORATION.** - **EXHIBIT P15 THE TRUE COPY OF THE CIRCULAR NO. 2/2008 , 19/2015, 23/2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P16 THE TRUE COPY OF THE PROCEEDINGS NO. D12-549/19 DATED 26.3.2019 OF THE 3RD RESPONDENT.** - **EXHIBIT P17 THE TRUE COPY OF THE ADVOCATE NOTICE DATED 23.5.2019 ISSUED TO THE 1ST RESPONDENT CORPORATION.** - **Exhibit P18 THE TRUE COPY OF THE NOTICE DATED 24.03.2022 ISSUED BY THE 3RD RESPONDENT.** - **Exhibit P19 THE TRUE COPY OF THE JUDGMENT DATED 10.06.2015 IN W.A. NO.723/2014.** - **Exhibit P20 THE TRUE COPY OF THE JUDGMENT DATED 30.07.2019 IN W.P.C NO. 10002 OF 2019.** - **Exhibit P21 THE TRUE COPY OF THE JUDGMENT DATED 09.03.2020 IN W.P. NO. 25641 OF 2019.** - **Exhibit P22 TRUE COPY OF THE FORM 1 DEMAND NOTICE DATED 03/06/2022 ISSUED BY THE DEPUTY TAHSILDAR, THIRUVANANTHAPURAM TALUK** ## **RESPONDENT EXHIBITS** **Exhibit R1(A) TRUE COPY OF THE CIRCULAR DATED PROCEEDINGS NUMBER T9 - 10189/01 DATED 13.03.2019 IS PRODUCED HEREWITH AND MARKED AS EXHIBIT R1(A). Exhibit R2(B) TRUE COPY OF THE CIRCULAR DATED PROCEEDINGS NUMBER D12 - 24622/18 DATED 09.08.2019 IS PRODUCED HEREWITH MARKED AS EXHIBIT R2(B).**