IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 24434 of 2004(H) -------------------------- PETITIONER(S): --------------- K.R.NARAYANAN, AGED 58 YEARS, S/O.K.A.RAMACHANDRAN, PLOT NO.19, SOWBHAGYA, M.K.K.NAYAR NAGAR, TRIPPUNITHURA-682 305, ERNAKULAM DISTRICT. BY ADV. SRI.KAYALATT KUTTYKRISHNAN SRI.A.D.SHAJAN SMT.R.LEKSHMI RESPONDENT(S): --------------- THE FERTILISERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL P.O., 683 501, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR. ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 24434/2004. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF V.R.S. BENEFITS. EXT.P2 LETTER OF ACCEPTANCE OF V.R.S. DT. 10-7-2001. EXT.P3 SETTLEMENT OF ACCOUONTS DT. 30-7-2001. EXT.P4 PAY REVISION ORDER DT. 28-8-2001. EXT.P5 SETTLEMENT OF ACCOUNTS AFTER PAY REVISION DT. 19-10-2001. EXT.P6 GRIEVANCE PETITION DT. 4-4-2002. EXT.P7 REPLY TO EXT. P6 DT. 21-5-2002. EXT.P8 GOVT. ORDER DT. 11-7-2001. EXT.P9 GRIEVANCE DT. 14-8-2002. EXT.P10 DO. DT. 21-6-2004. EXT.P11 V.R.S. ORDER DT. 7-2-2004. EXT.P12 EXAMPLE OF PAMENT OF LEAVE ENCASHMENT IN OTHER V.R.S. CASES. EXT.P13 LIST OF PERSONS RETIRED ON V.R.S. BETWEEN 31-1-2001 AND 15-4-2005. EXT.P14 LIST OF PERSONNEL CONCERNED WITH DETAILS OF THE AMOUNT OF LEAVE ENCASHMENT PAID. EXT.P15 LIST OF PERSONNEL WHO RETIRED ON V.R.S DURING 1-1-1997 TO 31-12-2001. RESPONDENT'S EXHIBITS: --------------------------------------- EXT.R1(a) TRUE COPY OF VOLUNTARY RETIREMENT SCHEME DT. 22-12-2003. EXT.R1(b) GOVT. ORDER DT. 11-7-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 24434 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of February, 2010. J U D G M E N T The petitioner was an employee of the respondent-Company who opted for voluntary retirement under a voluntary retirement scheme and retired from service on 31-7-2001. At the time of retirement, he was given all benefits due under the voluntary retirement scheme, which included leave encashment benefits also, whereby the petitioner could encash the medical leave and privilege leave in his credit subject to an upper limit. That amount was also paid to him as evidenced by Ext. P3. Subsequently, the respondent implemented revision of scales of pay for their employees with retrospective effect with effect from a date prior to the voluntary retirement of the petitioner from service. Ext. P4 is the order sanctioning pay revision. Consequently, the petitioner was given arrears of pay revision benefits for the period from the date of implementation of pay revision till his date of retirement. But, from the same, the respondent deducted the leave encashment benefits received by the petitioner as per Ext. P3. The petitioner is challenging that action of the respondent and seeking the following reliefs in this writ petition: “a) call for the records leading to issuance of Ext. P7 letter of the respondent and to issue a writ of mandamus or any other writ, order or direction, directing the respondent to disburse forthwith the encashment of leave as terminal benefit in accordance with Exts. P1 VRS benefit and P4 order on pay revision, with interest. b) to declare that the petitioner is entitled to get the full benefit of leave encashment as the terminal benefit on retirement under Voluntary Retirement Scheme. c) to declare that Ext. P5 order, deducting the leave encashment from the benefits accrued out of Ext. P4 pay revision order is null and void.” 2. According to the petitioner, the leave encashment benefit is W.P.C. No. 24434/2004. -: 2 :- part of the voluntary retirement scheme itself, under which the petitioner opted for voluntary retirement and by deducting the same from the arrears of pay revision benefits, the petitioner has been denied a benefit legally due to him. He would further submit that actually the respondent should have paid to him arrears of leave encashment benefits also based on the revised salary. A further contention is also raised to the effect that the respondent has paid leave encashment benefits to other employees who voluntarily retired under a later scheme as evidenced by Ext. P14 and therefore the non- payment of the same benefit to the petitioner amounts to discrimination insofar as persons similarly situated are treated unequally. 3. The respondent has filed a counter affidavit taking the contention that by virtue of clause 16(i) of Ext. P4, the petitioner is disentitled to the benefit of leave encashment. According to the respondent, the petitioner should take or leave Ext. P4 as it is, with the favourable and unfavourable portions of Ext. P4 alike. While granting pay revision benefits in Ext. P4, by clause 16(i), the leave encashment was frozen with effect from 12-7-2001 except as a terminal benefit in case of retiring and death cases. The respondent contends that the petitioner's case cannot be regarded as a case of retirement since what is contemplated under clause 16(i) is retirement on superannuation and not voluntary retirement. They also would contend that the leave encashment is frozen until a new order is issued in respect of the same, except in the case of employees retiring or die. As regards the persons to whom leave encashment benefits were paid as evidenced by Ext. P14, the explanation of the respondent is that although they retire voluntarily under a voluntary W.P.C. No. 24434/2004. -: 3 :- retirement scheme their case cannot be equated to that of the petitioner because in the scheme under which they retired itself there is a clause that the leave encashment benefits would be paid to them. 4. I have considered the rival contentions in detail. 5. Admittedly the right to leave encashment has not been cancelled. It is only frozen. 'Frozen' means 'kept in abeyance. That has to be only till a future date. That future date should be ascertained from the language used in the clause. The words “except as a terminal benefit in case of retiring and death cases” would go to show that that future date would end at the latest when the employment of the employee ceases. I am unable to accept the contention that the word 'retiring' used in clause 16(i) should be given a restricted meaning confining it to persons who retire on superannuation. No such restricted meaning can be read into it. This is amply clear from the fact that in respect of persons retiring voluntarily as per Ext. P11 scheme, leave encashment amount has been paid as evidenced by Ext. P14. The argument of the learned counsel for the respondent is that that is because the scheme itself contains a clause that leave encashment would be paid to them. I am of opinion that the petitioner's case is not any the different. Admittedly, the scheme under which the petitioner retired voluntarily also contained a clause whereby leave encashment benefits were to be paid to the petitioner and that is why as evidenced by Ext. P 3, the same has been paid to the petitioner. When Ext. P4 is applied with retrospective effect, then as on the date of retirement of the petitioner voluntarily, he is also in the same position as those persons included in Ext. P14 because to both Ext. P4 is applicable equally and in respect of both the voluntary retirement scheme came into force after W.P.C. No. 24434/2004. -: 4 :- the pay revision came into force. Therefore, disbursing of leave encashment amounts to one set of voluntarily retiring employees under a scheme and denying the same to another set would result in discrimination violating the fundamental rights of the petitioner. Therefore, I have no hesitation to hold that the deduction of leave encashment benefits from the arrears of pay revision benefits due to the petitioner is clearly illegal. Accordingly, the respondent is directed to disburse to the petitioner the leave encashment benefits deducted from his arrears of pay revision benefits paid to the petitioner as per Ext. P5 along with arrears of leave encashment benefits calculated on the basis of revised pay, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Insofar as only the petitioner has approached this Court and he came in time in 2004 itself, I direct that the benefit of this judgment would be confined to the petitioner alone. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/