Ramakrishnan P.K. vs Kerala State Beverages (M & M) ...
2021 Latest Caselaw 1235 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

 WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                  WP(C).No.24921 OF 2020(M)


PETITIONER :-

            RAMAKRISHNAN P.K., AGED 65 YEARS, S/O.N.KUNJAN,
            ASSISTANT MANAGER (RETIRED), WAREHOUSE PALAKKAD,
            KERALA STATE BEVERAGES (M AND M) CORPORATION,
            RESIDING AT KRISHNA, JANAKI NAGAR,
            MUTTIKULANGARA P.O., PALAKKAD, PIN - 678 594.

            BY ADV. SMT.T.N.SREEKALA

RESPONDENTS :-

      1     KERALA STATE BEVERAGES (M & M) CORPORATION LTD.
            REPRESENTED BY ITS MANAGING DIRECTOR,
            BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM,
            THIRUVANANTHAPURAM, PIN - 695 033.

      2     MANAGING DIRECTOR
            KERALA STATE BEVERAGES (M & M) CORPORATION LTD.,
            BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM,
            THIRUVANANTHAPURAM, PIN- 695 033.

      3     REGIONAL MANAGER
            KERALA STATE BEVERAGES (M & M) CORPORATION LTD.,
            BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM,
            THIRUVANANTHAPURAM, PIN - 695 033.

      4     THE GENERAL MANAGER (ADMIN)
            BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM,
            THIRUVANANTHAPURAM, PIN - 695 033.

            BY SRI.NAVEEN.T., SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.24921 OF 2020(M)

                                      -: 2 :-


                                JUDGMENT

Dated this the 13th day of January 2021

This writ petition is filed seeking the following reliefs :-

"(a) Call for the records leading to the issuance of Exhibit P6 and issue a writ of certiorari or other appropriate writ, order or direction to quash the same.

(b) Declare that withholding the gratuity and other retirement benefits due to the petitioner is illegal and without any authority of law.

(c) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the gratuity and leave encashment withheld with 12% interest calculated from the date from which it fell due till the payment.

(d) Award costs of and incidental to this Writ Petition (Civil)."

2. Heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the respondent Corporation.

3. It is submitted by the learned counsel for the petitioner

that the petitioner had retired from service as Assistant Manager

(Accountant in charge) on 30.11.2013. It is submitted that on the

ground that there were objections noted by the audit in respect of

amounts misappropriated by the petitioner, the retirement benefits

due to the petitioner were not released. It is submitted that the

petitioner had approached this Court and pursuant to the directions

of this Court, withholding of an amount of Rs.11,53,035/- from his WP(C).No.24921 OF 2020(M)

gratuity and leave encashment, admitted amounts had been released.

Thereafter, on a consideration of the contentions, Ext.P5 judgment

was rendered on 29.1.2015 holding as follows :-

"7. Though it is clear from the Rules framed by the Corporation, that amount can be recovered from the gratuity, however mere pendency of the criminal case cannot be a reason to deny the legitimate claim of the employee. The Corporation must be able to demonstrate they have sustained loss. Unless and until the loss is ascertained and established against the petitioner, no amount can be recovered from the petitioner.

8. Under the facts and circumstances, I am of the view that the Managing Director shall take a decision on the claim of the petitioner after hearing the petitioner. If no liability can be fastened on the petitioner based on enquiry or records, necessarily the entire amounts shall be released to the petitioner without any delay. The decision shall be taken within a period of six weeks from the date of receipt of a copy of this judgment. There is no dispute regarding the release of EPF amount. It is submitted by the learned Standing Counsel for the Provident Fund that they have already processed the EPF amount and the same will be disbursed to the petitioner soon. This submission is recorded."

The PF amounts have been released to the petitioner thereafter.

Pursuant to Ext.P5 judgment, Ext.P6 order was issued by the

Chairman and Managing Director. It was held that since the criminal

case was still pending against the petitioner, the release of the

amounts would depend on the completion of the court proceedings

and the departmental enquiry ordered in the matter. It was also

stated that the respondents are not in a position to release his WP(C).No.24921 OF 2020(M)

pending benefits before the disposal of the case against him and the

request was thus declined.

4. The learned counsel for the petitioner submits that in a

similar case, Ext.P7 judgment had been rendered by a learned Single

Judge of this Court directing the disbursal of the balance gratuity.

Though the matter was taken up in appeal, Ext.P8 judgment was

rendered upholding Ext.P7 and the direction to release the amounts

due. It is, therefore, submitted that in the case of the petitioner also,

the findings contained in Ext.P6 cannot be sustained.

5. A counter affidavit has been placed on record by the

respondents. It is submitted that the petitioner was personally liable

for an amount of Rs.11,53,035/- and that the said amount had been

realised from the gratuity due to the petitioner. Reliance is placed on

Rule 78 of the Kerala State Beverages (Manufacturing and Marketing)

Corporation Ltd. Employees Service Rules, 1986 (for short, 'the 1986

Rules) in support of the contention that liabilities fixed against an

employee can be recovered from the gratuity. The learned Standing

Counsel for the respondent Corporation would contend that this

aspect has found favour with the Division Bench in Ext.P8 judgment

as well. It is further contended that even in case it is found that

Ext.P6 was not a proper exercise carried out pursuant to Ext.P5

judgment, the matter is liable to be remitted back to the respondents WP(C).No.24921 OF 2020(M)

for a reconsideration of the issue. It is submitted that in view of the

fact that large amounts had been misappropriated by the petitioner,

the right of the respondents to recover the amounts cannot be

negated by this Court in public interest as well.

6. I have considered the contentions advanced. The

petitioner admittedly retired from service on 30.11.2013. By Ext.P5

judgment, this Court had directed the respondents to consider

whether any amount could be recovered from the petitioner in terms

of Rule 78 of the 1986 Rules. Rule 78 specifically states that such

parts of liabilities of any employee as determined by the Corporation,

which could not be recovered from pay due to him or otherwise will

be recovered from the gratuity payable under the Rules. It is the

specific contention of the petitioner that there has been no

quantification of the liability as against him at any point in time. A

reading of Ext.P6 would also show that the reason for withholding the

amount from the gratuity and leave encashment of the petitioner is

the pendency of the criminal proceedings against him. In the instant

case, the respondents have not placed on record any order by which

the liability had been quantified or fixed against the petitioner. Even

in Ext.P6, which is passed two years after his retirement, there is no

such allegation.

WP(C).No.24921 OF 2020(M)

7. In the above view of the matter, I am of the opinion that in

the absence of any quantification or fixing of liability as against the

petitioner, the amounts cannot be recovered from the gratuity and

leave surrender benefits payable to him. The provisions of the

Payment of Gratuity Act which provides for forfeiture to the extent of

damage or loss caused by the employee also do not permit the

recovery of amounts from the gratuity of an employee. In the above

factual situation, I am of the opinion that there would be no purpose

in relegating the matter to the respondents for a reconsideration.

The petitioner being an employee, who had retired from service on

30.11.2013 and in the absence of any quantification of the liability as

against him by any means known to law in any departmental

proceeding or judicial proceeding, I am of the opinion that the amount

cannot be recovered from the gratuity even in terms of Rule 78 of the

1986 Rules.

In the above view of the matter, there will be a direction to

the respondents to release the amounts recovered from the

petitioner's gratuity and leave encashment. In view of the fact that

the petitioner has approached this Court against Ext.P6 after a long

delay, the question of interest is left open. Further, in case the

petitioner is found guilty in the criminal proceedings said to be

pending against him, the right of the respondents to recover the WP(C).No.24921 OF 2020(M)

amounts found to have been misappropriated by the petitioner by

other legal means is also left open. The amounts recovered from the

petitioner's gratuity and leave encashment shall be released within a

period of three months from the date of receipt of a copy of this

judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/13.1.2021 WP(C).No.24921 OF 2020(M)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE OFFICE ORDER NO.AE1/04/2012/KSBC, DATED 17/05/2012, ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE ORDER BEARING NO.AE1/690/2012/KSBC, DATED 17/05/2012, ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE SAID LETTER BEARING NO.AE17/19777/2014/K.S.B.C., DATED 05/08/2014, ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE KERALA STATE BEVERAGES (MANUFACTURING & MARKETING) CORPORATION LIMITED EMPLOYEES SERVICE RULES, 1986.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT RENDERED BY THIS HON'BLE COURT IN WP(C) 28567/2014 DATED 29/01/2015.

EXHIBIT P6 TRUE COPY OF THE ORDER BEARING NO.AE-17/9777/2014, DATED 20/04/2015, ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT RENDERED BY THIS HON'BLE COURT IN WP(C) 30603/2019, DATED 22/05/2020.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT RENDERED BY THIS HON'BLE COURT IN WA NO.1241/2020, DATED 09/10/2020.

//TRUE COPY//

P.A. TO JUDGE