IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WP(C).No. 624 of 2005(Y) ----------------------------------- PETITIONER(S): ----------------------- P.M.SENAN, RTD. MANAGING DIRECTOR-KPBS, KAKKANAD P.O., KOCHI-30, MIDHILA, MODEL ENGINEERING COLLEGE ROAD, THRIKKAKARA P.O., COCHIN-21. BY ADVS. SRI.S.CHANDRASENAN SRI.P.K.SOMARAJAN RESPONDENT(S): -------------------------- 1. STATE OF EKRALA, REP. BY PRINCIPAL SECRETARY, HIGHER EDUCATION (H), DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA BOOKS AND PUBLICATIONS SOCIETY, KAKKANAD P.O., KOCHI-30. R1 BY GOVT. PLEADER SMT.M.R.SREELATHA R2 BY ADVS. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.624/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVT.ORDER G.O.(RT) 480/99/H.EDN. DTD. 5.5.99. P2:- COPY OF THE ORDER AND ATTENDED RULE IN G.O.(MS) NO.67/88/H.EDN. DTD. 29.3.1989. P3:- COPY OF THE REPRESENTATION DTD. 30.10.2000. P3(a):- COPY OF THE TRANSLATION OF THE REPRESENTATION DTD. 30.10.2000. P4:- COPY OF THE LETTER NO.FA4/BONUS/2000/12 DTD. 15.1.2001. P5:- COPY OF THE REPRESENTATION SENT BY THE PETITIONER DTD. 3.8.01. P6:- COPY OF THE ORDER G.O.(MS) NO.108/2002/H.EDN. DTD. 14.8.2002. P7:- COPY OF THE COMMUNICATION NO.FA4/BONUS/3400 DTD. 24.10.2003. P8:- COPY OF THE LETTER DTD. 20.12.2003 SENT BY THE PETITIONER. P9:- COPY OF THE LETTER DTD. 23.3.04 SENT BY THE PETITIONER. P10:- COPY OF THE LIST SHOWING THE NAME AND THE PERIOD OF THE MANAGING DIRECTOR. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.624/2005-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of January, 2011 J U D G M E N T The petitioner is aggrieved by the denial of Performance Allowance for the period during which he was on deputation as Managing Director of the second respondent-Society. 2. The petitioner, while working as Director of Cultural Affairs Department of Public Relations, was sent on deputation as Managing Director of the second respondent. He took charge as Managing Director on 12/05/1999 and retired on superannuation on 31/03/2000. 3. It is pointed out that the employees of the second respondent were being paid Performance Allowance every year in connection with Onam festival. Ext.P2 is the order that was passed by the Government with respect to the payment of the said allowance. This was being followed by the second respondent also. It is pointed out that even though the allowance fell due in September that was not disbursed to the petitioner. But the successor Managing Directors have received payment, evidently, in terms of the Government Orders. W.P.(C). No.624/2005 -:2:- Even though the petitioner had been representing the matter before the second respondent and the Government, no action was taken in the matter. It is in these circumstances, this writ petition was filed. 4. The learned counsel for the petitioner submitted that all the predecessors of the petitioner as well as his successors have obtained payment. My attention was invited to Ext.P10 which shows details of 16 Managing Directors who had been appointed for different periods. It is pointed out that the Government for the succeeding years passed Ext.P6 order whereby the system was continued. 5. The petitioner has got a case that denial of the benefit was mala fide in the sense that the successor was only trying to cause hardship to him because of certain litigations against him which have been initiated with regard to the conferment of I.A.S. 6. The Government has filed a counter affidavit pointing out that during the period from 1995-96 to W.P.(C). No.624/2005 -:3:- 1999-2000, the employees were paid Production Linked Bonus advance as per the proposed Scheme subject to the approval of the Government after getting an undertaking from each employee that in case the Government approval is not received, the amount will be recovered from them. The Government has not yet given approval for the same. In paragraph (7) it is further stated that the Government vide G.O.(MS)No.143/2001/H.Edn., dated 20/10/2001 sanctioned Performance Allowance to the Society for the year 2000-2001 under Ext.P2 rules issued by Government Order dated 29/03/1989. As per the order, the staff on deputation also is eligible for Performance Allowance. Therefore, the Managing Director who served for the period 2000-01 was paid Performance Allowance. Similar orders were issued by Government for payment of Performance Allowance for the years 2001-02, 2002-03 and 2003-04 and all Managing Directors who served during the years were paid Performance Allowance. Further, it is pointed out in paragraph (8) that the Government has not yet issued any orders regularising the advance payment of W.P.(C). No.624/2005 -:4:- Production Linked Bonus from 1995-96 to 1999-2000. It is also admitted that payment of Production Linked Bonus was made to all Managing Directors who served the Society for the period from 1995-96 to 1998-99 as recoverable advance subject to approval of Government. But what is mentioned as a reason for not paying the amount to the petitioner is that he retired from service on 31/03/2000 and the Production Linked Bonus was due only in September, 2000. 7. The learned counsel for the petitioner submitted that gross discrimination has been shown against the petitioner as is clear from the averments in the counter affidavit of the Government itself. He had been holding a high office and has been humiliated by denying the benefit. It is pointed out that all his predecessors and his successors have received the benefit and there is no cause for discriminating him and, if an undertaking was required, the same also could have been given but at no point of time it was demanded from him. W.P.(C). No.624/2005 -:5:- 8. The learned Government Pleader submitted that the matter was pending before the Government for ratification and as the petitioner retired on 31/03/2000, the payment was not effected evidently. 9. The learned counsel for the second respondent brought to my notice G.O.(Rt).No.1418/06/H.Edn., dated 23/09/2006 whereby the Government has ratified the action of the Managing Director of Kerala Books and Publications Society in having given payment of Performance Allowance/Production Linked Bonus for the period from 1992-93 to 1999-2000 to the employees of Kerala Books and Publications Society. 10. Therefore, it is evident that all the payments upto 1999-2000 have been ratified by the Government. Therefore, there is no question of recovery now as far as those employees who have received the payment are concerned. From the counter affidavit filed by the Government, it is evident that the payments earlier made, prior to 2000, was pending ratification before the Government. Now that the same has been ratified in W.P.(C). No.624/2005 -:6:- the Government Order quoted above, there is no justification for denying payment to the petitioner. Apart from that, except the petitioner, all other Managing Directors have been paid the amount also. Therefore, the reason that he was not in service during September, 2000, the month during which the payment was effected, cannot be accepted as his ineligibility, could not be disputed. In that view of the matter, the petitioner is entitled for the payment. 11. The learned counsel appearing for the second respondent fairly submitted that the second respondent will make the payment of Rs.10,000/- to the petitioner in the light of Government Order dated 23/09/2006. 12. The learned counsel for the petitioner pressed for grant of interest as claimed for the delayed payment. It is submitted that the petitioner who was serving as Managing Director has been humiliated and the matter was delayed purposefully. It is pointed out that the discriminatory attitude is evident from the fact that all the predecessors and successors have W.P.(C). No.624/2005 -:7:- received payment. The learned counsel for the second respondent submitted that there was no mala fide action on the the second respondent. Evidently, the payment prior to the year 2000 was pending before the Government for ratification and the order was passed only in the year 2006. 13. The learned counsel for the petitioner is right in submitting that the money value in 2000 is not the same now. But still, in the light of the fact that there is no wilful or gross negligence on the part of the second respondent, I am of the view that the second respondent need not be saddled with the liability to pay any interest. Rs.10,000/- will be disbursed to the petitioner within a period of one week. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms