Joble K.John vs The Travancore Cements Limited
2021 Latest Caselaw 3025 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                          WP(C).No.35219 OF 2010(B)


PETITIONER:

                JOBLE K.JOHN
                AGED 60, KATTUR ASSISI HOUSE,, NEDUMKUNNAM P.O., KOTTAYAM
                DISTRICT.

                BY ADV. SHRI.TOM K.THOMAS

RESPONDENTS:

       1        THE TRAVANCORE CEMENTS LIMITED
                REPRESENTED BY ITS MANAGING DIRECTOR,
                 NATTAKAM, KOTTAYAM-686 013.

       2        THE MANAGING DIRECTOR
                TRAVANCORE CEMENTS LIMITED,
                NATTAKAM, KOTAYAM-686 013.

                BY ADV. SRI.P.K.VIJAYAMOHANAN
                BY SRI.MILLU DANDAPANI, SC

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.35219 OF 2010(B)

                                   2




                            JUDGMENT

The petitioner says that while he was working as a

Chief Manager (Finance and Commerce) in the services of

the respondent - Travancore Cements Limited (hereinafter

referred to as 'the Company'), he applied for leave from

19.03.1997 to 31.03.1997 and it was sanctioned. He says

that on account of certain unavoidable and extenuating

circumstances, he was unable to join back on 01.04.1997,

but that he made a request for extension of leave up to

31.05.1997.

2. The petitioner says that even though this

application was made well within time, the Company did not

accede to the same, but initiated enquiry proceedings

against him on the allegation that he had overstayed his

leave and had not reported for duty after 31.03.1997. The

petitioner submits that, thereafter, enquiry proceedings

were completed by the competent enquiry officer and that

subsequently, he was removed from service, imposing the

punishment of termination.

WP(C).No.35219 OF 2010(B)

3. The petitioner says that he does not intent to

challenge the orders of termination at this time, but that he

approached the competent Authority of the Company for

payment of his retiral benefits and that, though he has been

sanctioned and disbursed the pension pending this lis, the

Death Cum Retirement Gratuity (DCRG) has been still

detained, citing that he had caused loss to the Company.

4. The petitioner asserts that the afore allegation is

completely untenable since, even as per the enquiry report,

namely Ext.P5, no such allegations had been made against

him and no loss had been quantified. The petitioner,

therefore, through his learned counsel - Sri.Tom K. Thomas,

prays that this writ petition be allowed and the respondents

be directed to release his DCRG, along with interest at the

earliest.

5. In reply, Sri.Millu Dandapani - learned Standing

Counsel for the Company, submitted that the petitioner's

assertions are not credible since, while he was in service,

he had conducted himself in such a manner that the WP(C).No.35219 OF 2010(B)

Company had been put to great amount of loss. He

submitted that even though the Company wanted to initiate

action against him for such charges also, it was not possible

because of the delaying tactics adopted by him with respect

to the enquiry which was finally concluded through Ext.P5

report. Sri.Millu Dandapani, submitted that it has been

specifically stated in Ext.P9 that, while the petitioner was

working in the Company, it sustained loss on account of his

"financial indiscipline and mismanagement" and therefore,

that they were entitled to retain his DCRG as per law.

Sri.Millu Dandapani, therefore, prayed that this writ petition

be dismissed.

6. I have considered the rival submissions of the

parties, as made by their learned counsel and have also

juxtaposingly assessed them on the materials available.

7. It is now well settled, through a catena of

judgments of this Court and that of the Hon'ble Supreme

Court, that normally the DCRG of an employee can be

retained only if loss had been caused to the employer. WP(C).No.35219 OF 2010(B)

8. In the case at hand, it is certainly alleged by the

Company that the petitioner, on account of his 'financial

indiscipline and mismanagement' had caused loss to them,

but nothing has been placed on record by them to

substantiate this.

9. This is pertinent because, looking at the charges

levelled against the petitioner - which led to Ext.P5 enquiry

report, it is only alleged that he had overstayed his leave

and had not reported for duty within time; and

consequently, he was found guilty of indiscipline.

10. However, a close reading of Ext.P5 would not

show that there was even a whisper of allegation against the

petitioner that he had caused any loss to the Company and

the enquiry did also not proceed on any such basis, but

solely for the charge that he had overstayed his leave.

11. I, therefore, cannot find how the Company now

says that the allegation against the petitioner impelled is

that his 'financial indiscipline and mismanagement' had

caused loss to them; and this is more so because as per WP(C).No.35219 OF 2010(B)

Ext.P9 order issued by the Managing Director of the

Company, it is alleged that the petitioner had caused delay

in completing the enquiry through dilatory tactics and that

the Company had sustained loss on account of his

"misconduct".

12. Pertinently, even that order does not mention any

enquiry having been conducted with respect to the alleged

causing of loss by the petitioner to the Company and other

materials on record virtually dispel any doubt that no such

allegations had ever been made against the petitioner nor

concluded in an enquiry against him.

13. I am, therefore, of the firm view that conduct of

the respondents in detaining the DCRG of the petitioner

cannot find favour; and I consequently, deem it appropriate

to allow this writ petition.

In the afore circumstances, this writ petition is allowed

and the respondents are directed to disburse the eligible

DCRG to the petitioner within a period of two months from

the date of receipt of a copy of this judgment, failing which, WP(C).No.35219 OF 2010(B)

it will carry interest at the rate of 9% from the date on

which it became eligible to him and until it is actually paid.

As regards the claim of the petitioner for interest for

the delay is concerned, I do not deem it appropriate or

prudent for this Court to enter into the same on its merits,

since it will require an assessment of various factual

circumstances, which I do not think will be justified for this

Court to do in a writ petition under Article 226 of the

Constitution of India. I, therefore, leave open all such

remedies to be pursued by the petitioner appropriately, if he

is so desirous.

SD/-

                                        DEVAN RAMACHANDRAN

rp                                              JUDGE
 WP(C).No.35219 OF 2010(B)





                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE RESIGNATION DATED 21.04.1997.

EXHIBIT P2                 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.2055 OF
                           2006 DATED 02.02.2006.

EXHIBIT P3                 TRUE COPY OF THE LETTER DATED 20.07.2006.

EXHIBIT P4                 TRUE COPY OF THE PROCEEDINGS OF THE 1ST
                           RESPONDENT DATED 06.02.2010.

EXHIBIT P5                 TRUE COPY OF THE DOMESTIC ENQUIRY REPORT DATED
                           13.07.1998.

EXHIBIT P6                 TR9UE COPY OF THE REPRESENTATION DATED 23.03.2010

MADE BY THE PETITIONER FOR SETTLEMENT OF TERMINAL BENEFITS.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 10.06.2010 MADE BY THE PETITIONER TO SETTLEMENT OF TERMINAL BENEFITS.

EXHIBIT P8 TRUE COPY OF THE JUDGEMENT DATED 31.08.2010 IN W.P(C)NO.26982/2010.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 05.10.2010 PASSED BY THE 2ND RESPONDENT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE LEAVE APPLICATION NO.4653 DATED 15.03.1997 OF THE PETITIONER FOR 3 DAYS CASUAL LEAVE FROM 19TH TO 21ST MARCH,1997.

EXHIBIT R1(B) TRUE COPY OF THE LEAVE APPLICATION NO.6627 DATED NIL OF THE PETITIONER FOR 3 DAYS CASUAL LEAVE FROM 24TH TO 26TH MARCH,1997.

EXHIBIT R1(C) TRUE COPY OF LEAVE APPLICATION NO.6628 DATED NIL OF THE PETITIONER FOR RESTRICTED HOLIDAY ON 27.03.1997

EXHIBIT R1(D) TRUE COPY OF LEAVE APPLICATION NO.6629 DATED NIL OF THE PETITIONER FO HALF DAY CASUAL LEAVE ON 29.03.1997 WP(C).No.35219 OF 2010(B)

EXHIBIT R1(E) TRUE COPY OF THE LEAVE APPLICATION NO.6630 DATED NIL OF THE PETITIONER FOR CASUAL LEAVE FOR ONE DAY ON 31.03.1997

EXHIBIT R1(F) TRUE COPY OF THE FAX MESSAGE DATED 31.03.1997 FROM THE PETITIONER FROM DOHA,QUTAR T0 THE 2ND RESPONDENT.

EXHIBIT R1(G) TRUE COPY OF THE OFFICE ORDER NO.12 DATED 01.04.1997 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT R1(H) TRUE COPY OF THE REPRESENTATION DATED 05.01.2006 OF THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT.