Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 12TH DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 AGAINST THE JUDGMENT IN WPC 29083/2013 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN THE WPC: V.E.RAMA KRISHNAN FLAT NO. 27, 'ANUGRAHA', 32/1550, PALLISSERRY ROAD, PALARIVATTOM, KOCHI-682025. BY ADVS. SRI.T.A.SHAJI (SR.) SRI.M.A.ASIF RESPONDENTS/RESPONDENTS IN THE WPC: 1 THE MANAGING DIRECTOR THE TRAVANCORE CEMENTS LIMITED, NATTAKOM, KOTTAYAM- 686013. 2 DISTRICT LABOUR OFFICER (CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT), KOTTAYAM-686001. OTHER PRESENT: SR.GP-SRI.BIMAL K.NATH THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Amit Rawal, J.
1. Appellant, petitioner on claiming the following reliefs, was not found successful before the learned Single Bench.
(i) Issue a Writ of Certiorari or any other appropriate Writ, direction or order quashing the illegal corrections made in Exhibit P4 and such other documents on which such illegal corrections have been made;
(ii) Issue a Writ in the nature of Mandamus or any other
appropriate Writ, direction, or order commanding the 1st Respondent to pay the terminal benefits consisting of Gratuity and Leave Encashment benefit calculated on the basis of last drawn basic pay on 31.3.2011 as per Exhibit P1 with applicable DA on 31.3.2011 and to pay to the petitioner the balance terminal benefits with interest from 1.4.2011 till date of payment and also to release illegally withheld Onam Festival Allowance for the year 2011 with interest and also the illegally withheld DA arrears with interest.
(iii) Issue a Writ in the nature of Mandamus or any other appropriate Writ, direction, or order commanding the 2 nd Respondent to dispose of the Gratuity Case forthwith;
2. The facts leading to filing of the writ petition, in
brief, are that the appellant, petitioner while working as General Manager in the Company of Travancore Cements Limited, Kottayam was vide order dated 1.9.2002 granted time bound higher grade promotion subject to the approval of the Government. Subject to the pendency of the approval, regular promotion to M1 grade with effect from 7.4.2005 was also granted as per the order dated 15.4.2005. While issuing that order, the then Managing Director clarified that the present pay, annual increments and emoluments shall continue without change in case of any reduction in existing pay, annual increments, emoluments, benefits etc., on implementation of orders dated 15.4.2005.
3. Appellant, petitioner who was due to retire from
service on superannuation on 30.6.2011 submitted a resignation in March 2011. Government vide order dated 1.4.2009 rejected the approval of time bound higher grade scheme and directed the department to recover the monetary benefits from the incumbents who were given such benefits on retirement or next promotion, whichever was earlier.
4. On 24.2.2011 Government had also accorded sanction for pay revision in the case of Managerial employees, notionally with effect 1.7.2004 and implementation of the monetary benefits with effect 1.2.2011.
5. Appellant, petitioner was deemed to be in M2
Grade Scale of pay of Rs.10,000-300-10600-325-15150 with effect from 1.9.2002 and consequently, his basic pay was revised to the prior position of Rs.13,850/- per month in the substantive Grade M2 with effect from 1.9.2002. This order was passed by the Managing Director on
28.3.2011 which remain unchallenged. On 31.3.2011, gratuity was ordered to be paid reflecting the revision in the pay scale on the basis of the non approval of the time bound grade. The order dated 28.3.2011 was not assailed much less the gratuity was also accepted without protest and after a gap of almost two years, preferred a writ petition claiming the reliefs as extracted above. Besides the aforementioned order, appellant, petitioner the day before the quitting of the office, had also drawn the higher pay.
6. The learned counsel appearing on behalf of the
appellant submitted that there was no misrepresentation or fault on behalf of the appellant in making representation and therefore the department on the basis of non approval of time bound higher grade cannot recover the amount and in support of the contentions submitted that the principle as culled out in State of Punjab and Others v. Rafiq masih (White Washer) [(2015) 4 SCC 334] would be applicable.
7. On the other hand, learned counsel for the respondent submitted that the writ petition in the absence of any challenge to the order dated 28.3.2011 was not maintainable much less the conduct as noticed by the learned Single Bench.
8. We have heard the learned counsel for the
parties and appraised the paper book. The order dated 28.3.2011 has remain unchallenged. It is self explanatory. The explanation that the appellant, petitioner did not come to know of the order cannot be accepted as the writ petition was filed thereafter. When the factum of the aforementioned order came to the notice in the counter affidavit, no effort was made to seek the amendment in the writ petition; instead by withdrawing the last pay drawn, set up the claim as noticed above. We are of the view that such an act of the appellant, much less in the absence of any challenge, writ petition was bound to be rejected. No ground for interference is made out. Writ appeal is dismissed. Sd/- AMIT RAWAL JUDGE Sd/- sab C.S. SUDHA JUDGE