Joble K. John vs Travancore Cements Limited And Ors

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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 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 “misconductâ€​.

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.

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, 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.