IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WP(C).No. 27841 of 2009(A) -------------------------- PETITIONER(S): ------------------ D.JAGADAMMA, AGED 60 YEARS,D/O.DEVAKI AMMA, KRISHNAGUDI,PILAPPUZHA NORTH, HARIPAD,ALAPPUZHA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): ------------------- 1. THE MANAGING DIRECTOR, STATE BANK OF TRAVANCORE,HEAD OFFICE, 7TH FLOOR,POOJAPPURA,THIRUVANANTHAPURAM. 2. THE CHIEF MANAGER, PPG SECTION,STATE BANK OF TRAVANCORE, HEAD OFFICE,THIRUVANANTHAPURAM. 3. THE CHIEF MANAGER, STATE BANK OF TRAVANCORE, NRI BRANCH,MAVELIKARA. 4. THE ASSISTANT GENERAL MANAGER IV, DPS/VAC,STATE BANK OF TRAVANCORE, ZONAL OFFICE,ERNAKULAM. 5. THE MANAGER, STATE BANK OF TRAVANCORE, HARIPAD BRANCH. ADV. SRI.P.RAMAKRISHNAN , SC, SBT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 27841 OF 2009 (A) ===================== Dated this the 12th day of November, 2009 J U D G M E N T Petitioner was a Special Assistant working under the respondent Bank. After disciplinary proceedings, by Ext.P6 order dated 4/4/2009, she was discharged from service with superannuation benefits and the relevant clause contained in Ext.P6 reads as under: Charges 1, 2 and 3: Be discharged from service with superannuation benefits ie with Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment (under clause 6(d) 2. In this writ petition, the complaint is that she has not been paid the dues to which she is entitled to, and as at present, petitioner's grievance is regarding the non disbursement of gratuity, leave encashment and pension. 3. In the statement filed by the respondents, they have stated that since the discharge of the petitioner was one attracting the provisions of Section 4(6) of the Payment of Gratuity Act, the gratuity due to the petitioner has been forfeited. In so far as the leave encashment is concerned, referring to the bipartite settlement between the management and the unions WPC 27841/09 :2 : entered on 29/6/90, counsel for the Bank submits that the amount is payable only if a workmen retires from service or in the case of death. 4. As far as the claim for pensionary benefit is concerned, paragraph 3 of the counter affidavit states that the SBT Pension Regulation provides for pension only to an employee who has retired from service on attaining the age of superannuation under Regulation 28 of the Pension Regulation. Proceeding further, it is stated that Regulation 33 of the Pension Regulation provided for payment of compulsory retirement pension to those employees who are compulsorily retired from service and the question whether the petitioner could be paid such pension is under the consideration of the competent authority. 5. The entitlement of the petitioner for terminal benefits has to be decided in the light of the contentions thus raised by the respondents in the statement filed. 6. As far as payment of gratuity is concerned, true Section 4(6) of the Payment of Gratuity Act provides for forfeiture of gratuity and according to the respondents, it was in exercise of such power that the gratuity due to her has been forfeited. Since WPC 27841/09 :3 : the petitioner is claiming gratuity and as the respondent is contending that it has been forfeited in accordance with Section 4 (6) of the Act, to decide as to whether the petitioner should be paid gratuity or not, adjudication into the factual background which led to the forfeiture is necessary to appreciate whether Section 4(6) is attracted to her case. Therefore, the remedy open to the petitioner in this respect is to pursue her claim before the authorities under the Payment of Gratuity Act, 1972. 7. The next claim of the petitioner is for leave encashment. Clause 25 of the settlement deed dated 29/6/90 reads as under: 25. Encashment of Privilege leave (i) Parties agree that a workman would be entitled to encash the accumulated leave to his credit at the time of retirement. (ii) Parties further agree that if a workman dies in service, his heirs will be paid salary for the leave accrued to him at the time of the death. Thus, the encashment of leave is possible only at the time of retirement or on account of the death of an employee. In this case, neither of these contingencies are available, and in which case, the petitioner who was discharged from service cannot claim this benefit. WPC 27841/09 :4 : 8. Next claim of the petitioner is for pensionary benefits. As stated in para 3 of the statement filed on behalf of the respondents, the question whether the petitioner could be paid pension which is otherwise payable to the employees who have been compulsorily retired is pending consideration of the competent authority. 9. In view of this, the matter has to be decided and therefore, it is directed that the competent authority shall take a final decision on the claim of the petitioner for pension in the light of Regulation 33 of the Pension Regulations, as expeditiously as possible, at any rate within 6 weeks of receipt of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp