Venugopal V.S. v. Fertilizers and Chemicals Travancore Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **WA.No.1180 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 36119/2018(L) DATED 19.09.2019 OF HIGH COURT OF KERALA.** ## **APPELLANT/ PETITIONER:** **VENUGOPAL V.S., AGED 57 YEARS, S/O. K. N. VELAYUDHAN NAIR, NOW WORKING AS OFFICER, MATERIAL DEPARTMENT, HEAD OFFICE, FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL, ELOOR - 683 501, RESIDING AT ANJANEYAM HOUSE, KARIMALLOOR P.O., ALUVA - 683 511.** ## **BY ADV. SRI.B.RENJITHKUMAR** ## **RESPONDENTS/ RESPONDENTS:** **1 THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, ELOOR - 683 501. 2 THE GENERAL MANAGER (HR), FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL, ELOOR - 683 501.** **R1 & R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2020, ALONG WITH WA.1076/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **WA.1180 & 1076 of 2020** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **WA.No.1076 OF 2020** **AGAINST THE ORDER IN RP.NO.1018/2019 IN WP(C).NO.4410 OF 2019 DATED 24.02.2020 OF HIGH COURT OF KERALA** ## **APPELLANT/ PETITIONER:** **VENUGOPAL V.S., AGED 57 YEARS, S/O. K.N. VELAYUDHAN NAIR, NOW WORKING AS OFFICER, MATERIAL DEPARTMENT, HEAD OFFICE, FERTILIZERS AND CHEMICAL TRAVANCORE LIMITED, UDYOGAMANDAL, ELOOR-683501,** **RESIDING AT ANJANEYAM HOUSE, KARIMALLOOR P.O., ALUVA-683511.** **BY ADV. SRI.B.RENJITHKUMAR** ## **RESPONDENTS/ RESPONDENTS:** - **1 THE FETILIZERS AND CHEMICALS TRAVANCORE LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, ELOOR-683501.** - **2 THE GENERAL MANAGER (HR), FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ELOOR-683501.** **R1 & R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2020, ALONG WITH WA.1180/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 3 -** **WA.1180 & 1076 of 2020** **K. Vinod Chandran & T.R.Ravi, JJ.** **----------------------------------W.A.Nos.1180 of 2020 & 1076 of 2020 ----------------------------------Dated, this the 24[th] day of September, 2020** ## **JUDGMENT** **Vinod Chandran, J.** **The issues arising in the appeals are inter-connected and, hence, they are disposed of by this common judgment.** **2. The appellant was an employee of the** **respondent-Company, who retired while the writ petitions were pending. The issue agitated was as to the validity of shifting of the date of annual increment of the appellant. By W.P(C) No.36119 of 2018, the appellant sought for rectification of anomaly insofar as the shifting of date of annual increment by two months and sought for restoration of the date of increment to 1[st] April of every year. The Company objected to the same on the ground that the shifting was only by reason of the loss of pay suffered by the appellant by reason of unauthorized absence. W.P(C) No.4410 of 2019 was then filed challenging the Circulars, which permitted postponement of the date of increment in the event of an employee subjecting himself to a loss of pay. The learned Single Judge first considered the** **- 4 -** **WA.1180 & 1076 of 2020** **challenge against the Circulars and rejected the same. Since the Circulars permitted such postponement of increment, the writ petition seeking for restoration of the date of increment to 1[st] April of every year also stood dismissed, by a separate judgment. The reasoning is identical.** ## **3. The learned Counsel for the appellant submitted** **that there was no disciplinary proceedings taken against the appellant and if at all there is a loss of pay by reason of the absence of the appellant, necessarily the appellant ought to have been granted a reasonable opportunity to explain the circumstances in which such loss of pay had been occasioned. It is also argued that the Circulars were never brought to the notice of the employees.** ## **4. The learned Standing Counsel for the** **respondent-Company, however, submits that in the first writ petition itself the appellant had produced the Circular by which the appellant's date of increment was shifted. In fact the said Circular is the simplified procedure for sanctioning of annual increments to managerial personnel brought out in the year 2004, based on which the sanction of annual increment itself was carried out. It is also submitted that the appellant had suffered loss of pay and** **- 5 -** **WA.1180 & 1076 of 2020** **the consequential shifting of date of annual increment far earlier in the year 2015 and the same was challenged only just prior to his superannuation which falls on 30.04.2019.** **5. The learned Counsel for the appellant would, however, place reliance on the decision in** _**M.G.Gupta v. Union of India & Ors**_ **. [** _**1995 KHC 938 = (1995) 5 SCC 628**_ **] to argue that delay would not be significant if there is a continuing wrong and an employee is entitled to be paid the salary with correct computation, failing which at any time he could raise a claim for such correction.** **6. The appellant, admittedly, joined the service in the Company on 22.01.1991 and his annual increment arose in the month of January every year. Later, he was promoted to the managerial cadre and the date of increment was re-fixed to April of each year. On 04.02.2014, the employees resorted to mass absence in protest of a proposal for privatization of the Company. The appellant, who was in the managerial cadre, also absented himself. On the very next day, i.e., on 05.02.2014, the Company issued a Circular informing all the employees who had absented, that, there would be no grant of leave of absence on 04.02.2014 for reason of the indiscipline committed of unauthorized absence [Exhibit R1(a) produced in W.P(C) No.36119 OF 2018]. Again, there was a 12-hour hartal called** **- 6 -** **WA.1180 & 1076 of 2020** **for on 12.05.2014 for stoppage of work. On 06.05.2014, the Company by Exhibit R1(b) produced in the same writ petition, informed the employees that participation in the hartal would entail loss of wages on the basis of 'no work, no pay'. The appellant, who continued in the managerial cadre, again absented from work. The loss of pay on the two days has attained finality and the appellant has not challenged it at any point of time.** **7. It is based on the Circulars challenged in W.P(C) No.4410 of 2019 that the management postponed the date of increment. Exhibit P1 produced in the said writ petition is a Circular dated 25.07.2000, which was superseded by Exhibit P2 dated 27.05.2004 which we referred to earlier as Exhibit R1(a). We extract paragraph 3 of the above Circular:** **“(3) In case of loss of pay, the date of annual increment will be postponed by one month for loss of pay of less than one month in a year, by two months for loss of pay of more than one month but less than two months in a year and so on depending upon absence on loss of pay”.** **Hence, when an employee subjects himself to loss of pay of less than one month, then the date of increment stands shifted by a month. If the loss of pay is for a period exceeding one month but less than two months, then the date** **- 7 -** **WA.1180 & 1076 of 2020** **of increment will stand shifted by two months. In the present case, we are not concerned with the second limb of paragraph 3 of the Circular because on both the instances the appellant had subjected himself to loss of pay for one day. Even absence for a day resulting in loss of pay would entail the consequence of the shifting of annual increment by a period of one month, which would also be cumulative. Hence, when the first absence occurred, the date of annual increment of the appellant stood shifted from April to May. When the appellant again absented himself for one day resulting in loss of pay, the date of increment again stood shifted by one month. The appellant's date of increment, hence, falls on the 1[st] of June of every year. We do not see any infirmity in the said Circular which had been in vogue for a number of years even before the same resulted in adverse consequences to the appellant. The adverse consequence was also invited by the appellant with open eyes. When the loss of pay has not been challenged, the consequences by reason of an employee subjecting himself to absence resulting in loss of pay will automatically follow. There is no question of a misconduct or an opportunity being given to bring in consequences arising from such voluntary absence resulting in loss of pay.** **- 8 -** **WA.1180 & 1076 of 2020** **8. We are also of the opinion that the decision of the Hon'ble Supreme Court cited will not apply for two reasons - (i) We have found that the appellant has no claim for restoring his earlier date of annual increment. No continuing wrong arises. (ii) As we found, the appellant has never challenged his loss of pay, which was occasioned in the year 2015. The appellant also did not challenge the Circulars on such loss of pay being imposed on him and the consequential shifting of date of annual increment being effectuated. The delay stands against the appellant. We are also not convinced that the appellant was unaware of the Circular, since he himself has produced it in the first writ petition and there is no averment to that effect.** **For all the above reasons, we find no reason to interfere with the judgments of the learned Single Judge. Both the Writ Appeals stand dismissed, without any order as to costs.** **Sd/K.VINOD CHANDRAN JUDGE** **==> picture [59 x 36] intentionally omitted <==** **Vku/-** **[ true copy ]**