IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 153 of 2011 Girish Bhushan Goyal. ………. Petitioner Versus Bharat Heavy Electricals Ltd. & others. ..………. Respondents Mr. H.S. Sharma, Advocate for the petitioner. Mr. V.K. Kohli, Senior Advocate, with Mr. I.P. Kohli and Mr. H.M. Bhatia, Advocates for the respondents. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C. J. (Oral) While the writ petitioner was in service, he was entitled to many a allowances. One of those allowances was ‘production related performance’. Allowance pertaining to ‘production related performance’, petitioner had already earned while he was in service. Petitioner has been removed from service after conclusion of a disciplinary proceeding. There is no just reason for the employer BHEL not to pay the said allowance to the petitioner. 2. Petitioner was also entitled to Leave Encashment. The scheme of the Leave Encashment, contained in the Personnel Manual of the Corporate Personnel Department of BHEL, clearly indicates that an employee of BHEL is entitled to encash leave balance as on 25th June or 25th December of preceding half year or balance of leave after adjusting leave taken during the year upto the date of encashment, whichever is less. It, at the same time, provides that leave credited in advance will not qualify for encashment. Therefore, it indicates that an employee is entitled to encash a part of the leave, which is encashable, and credit the balance in advance for being used at a later point of time. The said Manual further indicates that an employee, whose services are terminated otherwise than on disciplinary grounds or who retires after 55 years of age, is entitled to encash the full amount of Earned Leave, both the 2 encashable and non-encashable portion, to his / her credit on the date of his / her retirement at the rate of qualifying emoluments last drawn before retirement / retrenchment. Therefore, at the time when the contract of employment is terminated otherwise than on disciplinary ground or by reason of the employee superannuating after 55 years of age, such an employee is entitled to encash the leave to his credit, both encashable, i.e. balance of leave as on 25th June or 25th December of preceding half year or balance of leave after adjusting leave taken during the year upto the date of encashment, and also non-encashable leave, i.e. leave credited in advance. An employee, whose contract of employment stands terminated on disciplinary ground, is not entitled to leave encashment. In the instant case, the contract of employment of the petitioner stood terminated by an order of dismissal passed upon conclusion of a disciplinary proceeding and, accordingly, it must be deemed that such termination took place on disciplinary ground. Petitioner, therefore, is not entitled to encash either the encashable portion or non-encashable portion of leave to his credit. 3. Petitioner claims dues on account of wage revision. The learned counsel for BHEL has submitted that the petitioner was not entitled to such wage revision. In this connection, the learned counsel has drawn our attention to the order dated 6th February, 2010 issued by BHEL. This order is not in dispute. In the order, it has been provided that the benefit of wage revision will be allowed to those, who were on the rolls of BHEL as on 31st December, 2006 and continued to be in service as on the date of issue of the said order. It was also mentioned in the said order that the employees, who have left the service of BHEL on or after 1st January, 2007 due to resignation, retirement including pre-mature retirement and voluntary retirement or death, will be paid arrears on account of wage revision upto the date they were in service. It was, then, added in the said order that the benefit of wage revision will, however, not be allowed to employees, who have left the services of BHEL on the ground of dismissal / removal and resignation without permission or notice. In the instant case, admittedly, petitioner left the service of BHEL in 2009 on being removed in a disciplinary proceeding. Accordingly, it is being 3 contended by the learned counsel for BHEL that the petitioner is not entitled to anything on account of wage revision, effected by the order dated 6th February, 2010. The learned counsel for the petitioner is not disputing that there is only one wage revision and that has been granted by the order dated 6th February, 2010. But, he submitted that the petitioner was in employment of BHEL on 31st December, 2006 and was to superannuate on 25th March, 2009 and, accordingly, he could not be in employment of BHEL upto 6th February, 2010. He submitted that, in such circumstances, he is entitled to arrears on account of wage revision upto the date he was to remain in service. The fact remains that, before the petitioner reached the age of superannuation, he was removed from service and his removal was by reason of a disciplinary action and not by reason of his retirement or resignation. In the circumstances, we are of the view that the petitioner was not entitled to anything on account of wage revision. 4. BHEL has propounded a Retired Employees Contributory Health Scheme. The said Scheme has come into effect from 1st November, 1985. The Scheme covers retired BHEL employees, their spouses and the spouses of those employees, who have died while in service. A regular employee, who retires from service on attaining the age of superannuation after rendering a minimum of 5 years’ continuous service, or other regular employees, who retire from service in accordance with the Rules of BHEL before attaining the age of superannuation, but after rendering not less than 10 years of continuous service in BHEL before such retirement, are covered by the said Scheme. For the purpose of obtaining coverage under the said Scheme, such an employee is required to apply to the Head of the Division from where he has retired. If his application is accepted, then he is required to make monthly contributions, commencing from the date of his retirement, as well as lump sum contribution at the time of his retirement. The learned counsel for BHEL submitted that, since the petitioner did not retire from his service, instead was removed from his service, petitioner is not covered by the said Scheme. The learned counsel for the petitioner submitted that, though the benefit was aimed at retired 4 employees, but, in the Scheme, it was not mentioned that, if separation has been caused by removal in course of a disciplinary proceeding, an employee, so removed, shall not be entitled to the benefit of the said Scheme. True, it has not been mentioned that an employee, who has been removed from service, will not be entitled to the benefit of the said Scheme, but one is required to understand the scope and ambit of the said Scheme by reading the plain words used while framing the said Scheme. The said Scheme is available only when the employment of an employee of BHEL has come to an end. An employment of an employee may come to an end by retirement, resignation, removal, dismissal, etc. The Scheme contemplates that the benefit thereof is available to only those employees, who retired from service on attaining the age of superannuation, after rendering a minimum of 5 years’ continuous service, or to employees, who retired from service in accordance with the Rules of BHEL before attaining the age of superannuation. In other words, the Scheme covers only those employees, who have retired before or after attaining the age of superannuation. The question, therefore, is, can it be accepted that an employee, who has been removed, is a retired employee? The fact remains that the Scheme provides for not only retirement from service before superannuation, but denotes that such retirement must be in accordance with the Rules of BHEL. No Rule of BHEL has been produced before us suggesting that, in terms thereof, removal of an employee would be taken as retirement. In the circumstances, we are unable to come to the rescue of the petitioner and hold that the plain reading of the words, used in the said Scheme, will encompass the petitioner within the Scheme. We are, therefore, not in a position to uphold the contention of the petitioner that he is entitled to the benefits of the said Scheme. 5. Though we have held above that the petitioner is entitled to ‘production related performance’ allowance, BHEL is contending that BHEL is entitled to realise a larger sum of money from the petitioner and, accordingly, it is entitled to appropriate or adjust or even to withhold payment due to the petitioner on account of ‘production related 5 performance’. It may be true that BHEL is entitled to recover a large sum of money from the petitioner, but, having regard to the facts disclosed, such claim is on account of damages / loss alleged to have been suffered by BHEL in view of alleged conduct on the part of the petitioner. Therefore, such claim on the part of BHEL is not a liquidated demand in money. Claim, on that account, will only become a liquidated demand in money on the same being adjudicated in accordance with law. Unless BHEL has a liquidated demand in money against the petitioner, it is not entitled either to appropriate the admitted dues of the petitioner or to adjust the same because there is no existence of any claim against which the dues of the petitioner can, at all, be adjusted or appropriated. For the similar reason, the claim for withholding, as put forward by BHEL, is also not sustainable. 6. We, accordingly, dispose of the writ petition by directing BHEL to pay to the petitioner his lawful and legitimate claims on account of ‘production related performance’ as quickly as possible, but not later than one month from the date of service of a copy of this order upon BHEL. (U.C. Dhyani, J.) (Barin Ghosh, C. J.) 27.12.2011 27.12.2011 G