Sanjeeva Balkur v. Fertilizers and Chemicals Travancore Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941** ## **WP(C).No.8473 of 2019** ## **PETITIONER/S:** **SANJEEVA BALKUR, AGED 58 YEARS S/O. BACHA BALKUR, BINNA, H.NO. 3-3-66M(1) ANANDA RAO ROAD 1ST CROSS, AMBALAPADY UDUPI PIN 576 103 DY, MANAGER (RETD), FACT LIMITED, UDYOGAMANDAL P.O, ERNAKULAM DISTRICT, PIN 683501.** **BY ADVS. SRI.C.S.MANU SRI.T.B.SIVAPRASAD** ## **RESPONDENT/S:** **1 FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL, ERNAKULAM DISTRICT, PIN 683501, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR. 2 CHAIRMAN AND MANAGING DIRECTOR, FERTILIZERS AND CHEMICALS TRAVANCORE, UDYOGAMANDAL, ERNAKULAM, PIN 683501 3 GENERAL MANAGER, HUMAN RESOURCES, FACT UDYOGAMANDAL, PIN 683501. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.8473 of 2019** **2** ## **JUDGMENT** This writ petition is filed seeking the following reliefs: **“** i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to promote the petitioner to the scale and pay in grade of E2 on completion of 4 years of residency in E1 scale. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to promote the petitioner on the basis of DPC held on 8.4.2013. iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to pay his retirement benefits viz the leave salary and gratuity forthwith. iv) To pay interest at the rate of 12% on all the retirement benefit for the delayed payment since non payment of retiral benefits by the respondents is total abuse of authority. v) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to fix responsibility on the erring officials in not disbursing the retirement benefits to the petitioner in time and to recover the interest paid to the petitioner from the erring official.” 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner was eligible for promotion as Senior Regional Manager in the Grade of E4 as early as in 2013. It is stated that the petitioner had been considered along with other **WP(C).No.8473 of 2019** **3** Officers by the Departmental Promotion Committee held on 8.4.2013. It is stated that all of the officers, who were considered along with the petitioner, were facing departmental enquiries. It is stated that thereafter, a vigilance case was registered against the petitioner on the ground that he had paid an amount of Rs.10,000/- to his Superior Officer. The learned counsel for the petitioner submits that the disciplinary proceedings initiated on the basis of the same allegation had resulted in exoneration of the petitioner. The petitioner retired from service on 31.7.2018. With regard to the vigilance case also, the petitioner had approached this Court filing Crl.R.P No.1560/2018. It is stated that this Court had, by judgment dated 16.1.2019, discharged the petitioner. However, the gratuity as well as the earned leave surrender amounts due to the petitioner have not been paid by the Company on the ground that vigilance clearance is not yet received. It is further contended that the action of the respondents in denying promotion to the petitioner to E4 Grade in spite of the DPC having found the petitioner eligible **WP(C).No.8473 of 2019** **4** as early as in 2013 is completely unsustainable. The learned counsel for the petitioner also claims interest on delayed payment of gratuity as well as earned leave surrender amounts due to the petitioner since the payment of the amounts are being withheld with absolutely no justification. 4. A detailed counter affidavit has been placed on record by the respondents. With regard to the petitioner's claim for promotion, it is contended that the petitioner had been considered for promotion on 8.4.2013. It is stated that the DPC held on 8.4.2013 did not recommend any candidate for promotion and no sealed cover procedure was adopted by the said DPC. The DPC had, as a matter of fact, decided that since promotions, if any, could be made only on a provisional basis, the additional posts available need not be filled up at the present time. It is stated that the DPC had recorded that the matter can be reviewed at the time of the next DPC for effecting promotions. It is stated that the Management invited applications for promotion as Senior Regional Manager in February 2014 and that the ## **WP(C).No.8473 of 2019 5** petitioner was not called for interview pursuant to the said notification since he did not meet the criteria pertaining to age. It is stated that the petitioner did not have 5 years of service left, if selected for the post. It is stated that the petitioner had been issued memo of charges on 4.2.2019 based on a vigilance case. It is stated that the petitioner had been considered for promotion to Layer 2 posts in Marketing Division by various DPCs that were held on 24.05.2016, 21/23.01.2017, 20.10.2017 and 01.02.2018 and the recommendations of the DPCs were kept in sealed covers. With regard to the contention of the petitioner that the service benefits due to the petitioner were not paid after his superannuation, it is contended that on receipt of Ext.P7 representation dated 22.1.2019 from the petitioner, the respondents had immediately addressed the CBI by Ext.R1(a) letter seeking advice as to the steps to be taken in the matter. It is stated that by Ext.R1(b) letter dated 5.2.2019 the CBI, Cochin had informed the respondents that the judgment discharging the petitioner is under legal scrutiny **WP(C).No.8473 of 2019** **6** and decision will be taken with regard to filing of the SLP and intimated to the Company without delay. It is therefore contended that there was no deliberate delay of any nature on the part of the respondents in paying the retirement benefits due to the petitioner and it was only on account of the pendency of the vigilance case against the petitioner that the benefits had not been disbursed in time. 5. The learned counsel for the petitioner places reliance on a decision of the Apex Court in _**Dua v. State of Haryana [2008 (3) KLT 58 (SC)]**_ to contend that even in the absence of Statutory Rules, Administrative instructions or guidelines, an employee can claim interest for delayed payment of service benefits under Part 3 of the Constitution of India, relying on Articles 14,19 and 21 of the Constitution of India. It is stated that the Apex Court had held that since the retirement benefits are not in the nature of bounty, the High Court was duty bound to consider the claim raised by the petitioner for interest on delayed payment. 6. I have considered the contentions advanced on **WP(C).No.8473 of 2019** **7** either side. The claim of the petitioner for promotion appears to be based on Ext.P2 proceedings of the DPC. Ext.P2 states that the senior most 4 officers, who are eligible for appointment as Senior Regional Managers are facing disciplinary proceedings and the DPC recommendations in respect of those officers have already been placed in sealed covers. It is stated that the five posts in Layer 2 in Marketing are being operated on provisional promotions and since the promotion to the post being considered by the DPC would also have to be on provisional basis, the DPC has decided that the additional posts may not be filled up. The Annexure to Ext.P2 would also show that an aggregate of marks for service experience and appraisal have been noted but no marks have been awarded by the DPC. This obviously is because the DPC had decided that no select list need be drawn up, since the promotion was not to be effected at the relevant time. 7. The petitioner had admittedly being charge sheeted in a vigilance case and C.C No. 9/2014 was pending before the Special Court SPE/CBI/2, **WP(C).No.8473 of 2019 8** Ernakulam. The petitioner had retired from service during the pendency of the said vigilance case on 31.7.2018. By Ext.P4 order dated 16.1.2019, the revision petition preferred by the petitioner was allowed and the petitioner was discharged under Section 239 of Cr.P.C. Immediately thereafter, the petitioner had approached the respondents seeking release of the pensionary benefits due to him. However, the respondents in the counter affidavit have taken a stand that they had immediately written to the CBI seeking clarification as to the steps to be taken in the matter and by Ext.R1(b), the Company was informed that the matter is being examined and the filing of SLP if any, from Ext.P4 judgment would be intimated to the Company. Thereafter, there was no communication in this regard. 8. The learned counsel appearing for the respondents would contend that by way of normal practice adopted in the Company, in all cases where vigilance cases or enquiries had been initiated against employees, the clearance of the competent investigating authority is being sought for, before **WP(C).No.8473 of 2019 9** the retirement benefits are finally released. It is contended that in the instant case, appropriate steps had been taken at the earliest point in time by the respondents and that there is no culpable delay on the part of the respondents in releasing the amounts due. It is also contended that it is only on account of the pendency of the criminal case against the petitioner that the amounts had not been released after his retirement. 9. I have considered the contentions advanced on either side. With regard to the claim raised by the petitioner for promotion, it appears that Ext.P2 is a decision of the DPC held on 8.4.2013 not to effect the promotions to the additional posts available. Though representations had been preferred by the petitioner before the Company, it appears that the decision taken by the DPC in Ext.P2 not to effect promotions at the relevant time had become final and no further steps had been taken pursuant thereto. It is specifically contended in the counter affidavit filed by the respondents that the petitioner had been considered for promotions on four occasions **WP(C).No.8473 of 2019** **10** thereafter and that the said DPCs had retained the recommendations in sealed covers. It is contended that after the final exoneration of the petitioner, the sealed covers had been opened and examined, it had been found that the petitioner had not been recommended for promotion in those DPCs. 10. In view of the fact that the petitioner retired on 31.7.2018 and since Ext.P2 does not reveal any decision to fill up the post which was available, I am of the opinion that the prayer made by the petitioner for retrospective promotion as SRM with effect from 2013 cannot be granted. In view of the fact that the petitioner had been considered for promotion on later occasions and had not been found fit which decisions are not under challenge, I am of the opinion that the further request for grant of promotions cannot be considered by this Court. 11. However, in view of the fact that the petitioner has been fully exonerated both in the disciplinary proceedings as well as in the criminal proceedings taken against him, I am of the opinion that the continued insistence by the respondents that **WP(C).No.8473 of 2019 11** the pensionary benefits due will be released only after vigilance clearance is obtained, is completely untenable. The gratuity due to the petitioner is liable to be paid in terms of the Payment of Gratuity Act, 1972. Forfeiture is possible only in accordance with the specific provisions contained in sub Section (6) of Section 4 of the Payment of Gratuity Act. In the instant case, there is no occasion for invocation of the provisions of Section 4(6) of the Payment of Gratuity Act. In the above view of the matter, I am of the opinion that the petitioner is entitled to payment of gratuity with effect from the date of his superannuation with statutory interest thereon with effect from 31.7.2018. The amounts due to the petitioner shall be released within two months from the date of receipt of a copy of this judgment. The amounts due as earned leave surrender benefits shall also be released to the petitioner. However, in view of the fact that the amounts had been detained only on account of the pendency of the criminal case against the petitioner in which he was discharged **WP(C).No.8473 of 2019 12** pursuant to orders of this Court in January 2019 and in view of the fact that the Company had apparently taken steps to secure the release of the amounts without delay, I am of the opinion that this is not a fit case where interest should be directed to be paid on the delayed payment of earned leave surrender. However, the amounts due to the petitioner as earned leave surrender benefits shall also be released within two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. ## **Sd/-** ## **ANU SIVARAMAN** sab **JUDGE** **WP(C).No.8473 of 2019** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DELAYING AND RESTRUCTURING (MANAGERIAL CADRE) INTRODUCED BY THE RESPONDENT COMPANY** - **EXHIBIT P2 TRUE COPY OF THE DPC PROCEEDINGS DATED 8- 4-13 OBTAINED UNDER RIGHT TO INFORMATION ACT** - **EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 10-032018 OF THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT** **EXHIBIT P4 TRUE COPY OF ORDER DATED 16-1-2019 IN CRRP NO 1560 OF 2018 PASSED BY THIS HONOURABLE COURT. EXHIBIT P5 TRUE COPY OF ORDER DATED 12-7-18 ISSUED BY THE DISCIPLINARY AUTHORITY EXONERATING THE PETITIONER OF THE CHARGES LEVELLED AGAINST HIM. EXHIBIT P6 TRUE COPY OF THE LEAVE RULES APPLICABLE TO THE MANAGERIAL PERSONNEL OF THE COMPANY EXHIBIT P7 TRUE COPY OF REPRESENTATION OF THE PETITIONER DATED 22-1-2019 ADDRESSED TO THE 3RD RESPONDENT AND COPY MARKED TO THE 2ND RESPONDENT EXHIBIT P7 A TRUE COPY OF THE POSTAL RECEIPT ISSUED FOR HAVING SENT EXT P-7 TO 2ND RESPONDENT. EXHIBIT P7 B TRUE COPY OF THE POSTAL RECEIPT ISSUED FOR HAVING SENT EXT.P7 TO 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 113-19 ADDRESSED TO THE 2ND RESPONDENT EXHIBIT P8 A TRUE COPY OF THE POSTAL RECEIPT FOR HAVING SEND EXT.P8** **WP(C).No.8473 of 2019** **14** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A)** TRUE COPY OF THE LETTER DATED 4.2.2019 OF THE VCO OF THE COMPANY TO THE CBI ,KOCHI **EXHIBIT R1(B)** TRUE COPY OF THE LETTER DATED 5.2.2019 RECEIVED FROM THE CBI BY FACT LTD.