IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE R DEVDAS WRIT PETITION NO.11518/2018 (S-RES) C/W WRIT PETITION NOs.2047/2018, 2048/2018, 2050/2018 AND 3134/2018 (S-RES) IN W.P.NO.11518/2018 BETWEEN SRI. S SHRIKANTESHWARA S/O LATE P SHANKARAIAH, AGED ABOUT 62 YEARS, RETIRED AS DEPUTY GENERAL MANAGER (FINANCE) STATE TRADING CORPORATION OF INDIA, PRESENTLY RESIDING AT NO.48, BULL TEMPLE ROAD, BASAVANAGUDI, BANGALORE-560004.
... PETITIONER (BY SRI M S BHAGWAT, ADVOCATE) AND 1. THE STATE TRADING CORPORATION OF INDIA LTD., REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, JAWAHAR VYAPARBHAWAN, TOLSTOY MARG, NEW DELHI-110001.
2. THE JOINT GENERAL MANAGER THE STATE TRADING CORPORATION OF INDIA LTD., JAWAHAR VYAPARBHAWAN, TOLSTOY MARG, NEW DELHI-110001.
(BY SRI G SRIDHAR, ADVOCATE FOR R1 & R2) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS, DIRECT THE RESPONDENTS TO RELEASE A SUM OF RS.8,31,842/- (RUPEES EIGHT LAKH THIRTY ONE THOUSAND EIGHT HUNDRED AND FORTY TWO ONLY) TOWARDS THE EARNED LEAVE ENCASHMENT, HALF-PAY LEAVE BENEFITS AND TRAVEL ALLOWANCE/DAILY ALLOWANCE AND OTHER PENSIONARY AND RETIREMENT BENEFITS WHICH INCLUDES SERVICE AWARD AND GIFT ON RETIREMENT AS PER THE CHART VIDE ANNX-T ALONG WITH 12% INTEREST.
IN W.P. NO.2047/2018 BETWEEN SRI. R. RAVINDRANATH S/O. N. RAMACHANDRAN, AGED ABOUT 61 YEARS, RESIDING AT NO.16/44, "SANTHA NIVAS", 3RD MAIN, 1ST CROSS, CHOLANAGARA, BANGALORE-560 032.
(BY SRI M S BHAGWAT, ADVOCATE) AND 1. SPICES TRADING CORPORATION LIMITED A SUBSIDIARY COMPANY OF THE ... PETITIONER STATE TRADING CORPORATION OF INDIA LTD., (GOVERNMENT OF INDIA ENTERPRISE) REPRESENTED BY ITS MANAGING DIRECTOR, NO.7A, III FLOOR, STC TRADE CENTRE NEXT TO NANDINI LAYOUT POLICE STATION, BANGALORE-560 096.
2. STATE TRADING CORPORATION INDIA LTD., REPRESENTED BY ITS MANAGING DIRECTOR, JAWAHAR VYAPAHAR BHAVAN, TOLSTOY MARG, NEW DELHI-110 001.
... RESPONDENTS (BY SRI. ARAVIND C DESAI, ADVOCATE FOR R1; SMT. K N AMSHUMALA, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND DIRECT THE RESPONDENTS TO RELEASE A SUM OF RS.34,05,688/- [RUPEES THIRTY FOUR LAKHS FIVE THOUSAND SIX HUNDRED AND EIGHTY EIGHT ONLY] TOWARDS THE EARNED LEAVE ENCASHMENT, HALF-PAY LEAVE AND GRATUITY AS PER THE CHART ALONG WITH 12% AND ETC.
IN W.P. NO.2048/2018 BETWEEN SRI. S. JAGANNATHA S/O. V. SHESHADRI, AGED ABOUT 58 YEARS, RESIDING AT F-442, "SRINIVASA SADANA", 18TH MAIN, 13TH CROSS, SAHAKARANAGARA, BANGALORE-560 098.
` ... PETITIONER (BY SRI M S BHAGWAT, ADVOCATE) AND 1. SPICES TRADING CORPORATION LIMITED A SUBSIDIARY COMPANY OF THE STATE TRADING CORPORATION OF INDIA LTD., (GOVERNMENT OF INDIA ENTERPRISE) REPRESENTED BY ITS MANAGING DIRECTOR, CHANDRODAYA, NO.10/1, 2ND MAIN, 30TH CROSS, 7TH BLOCK, JAYANAGAR, BANGALORE-560 070.
2. STATE TRADING CORPORATION OF INDIA LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, JAWAHAR VYAPAHAR BHAVAN, TOLSTOY MARG, NEW DELHI-110 001.
... RESPONDENTS (BY SRI ARAVIND C DESAI, ADVOCATE FOR R1 SMT K N AMSHUMALA, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS, DIRECT THE RESPONDENTS TO RELEASE A SUM OF RS.10,09,540/- (RUPEES TEN LAKH NINE THOUSAND FIVE HUNDRED AND FORTY ONLY) TOWARDS THE EARNED LEAVE ENCASHMENT, HALF-PAY LEAVE AND GRATUITY AS PER THE CHART (ANNEXURE-B) ALONG WITH 12% INTEREST AND ETC.
IN W.P. NO.2050/2018 BETWEEN SRI. M. V. ALAGESAN S/O. LATE M. R. VENKATESAN, AGED ABOUT 55 YEARS, RESIDING AT NO.917, 28-A MAIN, CORPORATION COLONY, 9TH BLOCK, JAYANAGAR, BANGALORE-560 069. (BY SRI M S BHAGWAT, ADVOCATE) ... PETITIONER AND 1. SPICES TRADING CORPORATION LIMITED A SUBSIDIARY COMPANY OF THE STATE TRADING CORPORATION OF INDIA LTD., (GOVERNMENT OF INDIA ENTERPRISE) REPRESENTED BY ITS MANAGING DIRECTOR, CHANDRODAYA, NO.10/1, 2ND MAIN, 30TH CROSS, 7TH BLOCK, JAYANAGAR, BANGALORE-560 070.
2. STATE TRADING CORPORATION OF INDIA LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, JAWAHAR VYAPAHAR BHAVAN, TOLSTOY MARG, NEW DELHI-110 001.
... RESPONDENTS (BY SRI ARAVIND CDESAI, ADVOCATE FOR R1 SMT K N AMSHUMALA, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS, DIRECT THE RESPONDENTS TO RELEASE A SUM OF RS.6,40,757/- (RUPEES SIX LAKH FORTY THOUSAND SEVEN HUNDRED AND FIFTY SEVEN ONLY) TOWARDS THE EARNED LEAVE ENCASHMENT, HALF-PAY LEAVE AND GRATUITY AS PER THE CHART (ANNEXURE-Q) ALONG WITH 12% INTEREST AND ETC.
IN W.P. NO.3134/2018 BETWEEN SRI SHARAD KUMAR DUBEY S/O. RANCHANDRA DUBEY, AGED ABOUT 48 YEARS, 2F, ARIHANT HARMONY, AHINSA KHAND-2, INDIRAPURAM, GHAZIABAD, UTTAR PRADESH -201 010.
(BY SRI M S BHAGWAT, ADVOCATE) AND 1. SPICES TRADING CORPORATION LIMITED A SUBSIDIARY COMPANY OF THE ... PETITIONER STATE TRADING CORPORATION OF INDIA LTD, (GOVERNMENT OF INDIA ENTERPRISE) REP BY ITS MANAGING DIRECTOR, NO. 7A, III FLOOR, STC TRADE CENTRE, NEXT TO NANDINI LAYOUT POLICE STATION, BANGALORE 560096.
2. STATE TRADING CORPORATION INDIA LTD REP BY ITS MANAGING DIRECTOR, JAWAHAR VYAPAHAR BHAVAN, TOLSTOY MARG, NEW DELHI 110001.
... RESPONDENTS (BY SRI ARAVIND C DESAI, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND DIRECT THE RESPONDENTS TO RELEASE A SUM OF RS.18,42,999/- [RUPEES EIGHTEEN LAKHS FORTY TWO THOUSAND NINE HUNDRED AND NINETY NINE ONLY] TOWARDS THE EARNED LEAVE ENCASHMENT, HALF-PAY LEAVE AND GRATUITY AS PER THE CHART [ANNEXURE-J] ALONG WITH 12% INTEREST AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER R.DEVDAS J., (ORAL):
The petitioners in all these petitions were either working with the respondent-State Trading Corporation of India Limited or Spices Trading Corporation Limited, which is a sister concern of the other Company. The petitioners have approached this Court seeking a direction to the respondents to settle and release earned leave encashment benefit, half leave encashment benefit and all the pensionary and retirement benefits along with 12% interest payable with effect from the date of retirement which has accrued to the petitioners on account of their employment with the respondent-Company.
2. Since the grievance of the petitioners are common, these petitions are heard and disposed of by this common order.
3. Sri. M.S. Bhagwat, learned counsel appearing for the petitioners places reliance on two judgments. It is submitted that in the case of State of Jharkhand and others vs. Jitendra Kumar Srivatsa and another reported in 2013 (12) SCC 210, the Apex Court has held that the right of the petitioner to receive the pension is ‘property’ under Article 31(1) and by mere executive order, the State had no power to withhold the same. In the case of Mohan Shankar Magajikandi vs. The Managing Director, Karnataka State Warehousing Limited and another in W.P.No.80549/2013, which was disposed of on 28.03.2018, this Court while referring to Rules 214 and 215-A of the Karnataka Civil Services Rules, 1958, has held that where the Government dues or amount of any pecuniary loss is assessed, it is recoverable under the said Rule from the pensionary benefits or gratuity or any amounts payable to the employee. It was also held that it was mandatory on the part of the employer to hold the departmental enquiry before recovering or withholding any amount legally payable to the employee. If such enquiry has not been initiated within four years from the date of alleged misconduct or not initiated after four years with the sanction of the Government, then such proceedings cannot be relied upon to withhold the pensionary benefits.
4. Taking support from the above said decisions, the learned counsel for the petitioners submits that in the present cases, there is no departmental enquiry pending against the petitioners. Under Rule 30-A of The State Trading Corporation of India Limited Employees (Conduct, Discipline and Appeal) Rules, 1975 and under Rule 22(A) of STCL Ltd., Employees (Conduct, Discipline & Appeal) Rules, 1985, if any pecuniary loss is determined to have been payable by the petitioners, the same could be recovered from gratuity. It is contended that the action on the part of the respondents in not releasing earned leave encashment benefit, half leave encashment benefit and all the pensionary and retirement benefits, is in violation of the provisions governing the disbursal of pension. It is therefore, submitted that the prayers made by the petitioners may be granted.
5. On hearing both the learned counsels and perusing the writ papers, this Court is of the considered opinion that the decision of the Apex Court in the case of State of Jharkhand (supra) covers the matter sufficiently. In that case, Rule 43(b) of the Bihar Pension Rules were considered and it was held that a reading of the Rule makes it abundantly clear that even after the conclusion of the departmental enquiry, it is permissible for the Government to withhold pension, etc., only when a finding is recorded either in departmental enquiry or judicial proceedings that the employee had committed grave misconduct in discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending or where there is no determination of pecuniary loss caused by the employee.
6. Their Lordships have considered the relevant provision of the Rules along with Article 31(1), Article 19(1)(f), Article 19(5) and Article 300(A) of the Constitution of India. Consequently, it was held that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant.
7. In the light of the above, the petitions require to be allowed and the prayers made by the petitioners are required to be granted. Accordingly, the petitions are allowed, while directing the respondents to pay the commutation value of pension along with 8% interest payable in accordance with law as expeditiously as possible, at any rate within a period of four months from the date of receipt of a certified copy of this order.
8. Wherever the petitioners are found guilty of having caused loss to the Company, the Company is entitled to recover the same from the gratuity amount only, as provided under Rule 30-A of The State Trading Corporation of India Limited Employees (Conduct, Discipline and Appeal) Rules, 1975 and under Rule 22(A) of STCL Ltd., Employees (Conduct, Discipline & Appeal) Rules, 1985.
SD/- JUDGE JT/-