The court held that the employer was justified in withholding the gratuity pending finalization of disciplinary proceedings as permitted in Section 4(6) of the Payment of Gratuity Act.

JUDGMENT :

ALEXANDER THOMAS, J.

Writ Appeal No.2500/2015 arises out of the impugned judgment dated 28.07.2015 in W.P.(C) No.8283/2015 filed by the appellant herein. During the pendency of this appeal, the employer concerned [respondents herein/respondents in the W.P.(C).] had preferred Review Petition, R.P.No.1066/2015 before the learned Single Judge to seek review of the abovesaid judgment in W.P.(C). 8283/2015 to the limited extent it has ordered the employer to consider and pass orders on the representation for disbursal of leave encashment. The learned Single Judge had allowed the said review plea as per the impugned order dated 31.05.2017 in the said R.P. No.1066/2015. Thus the petitioner has challenged both the impugned judgment in W.P.(C) by filing the former Writ Appeal and has also challenged the impugned order in the Review Petition, by filing the latter Writ Appeal.

2. Heard Sri.S.P.Aravindakshan Pillay, learned Advocate instructed by Sri. V.Varghese, learned counsel appearing for the appellant in both these cases/writ petitioner and Sri.M.Gopikrishnan Nambiar, learned standing counsel for FACT Ltd. instructed by Ms.Pooja Menon, learned counsel appearing for the respondents in the W.A./respondents in the W.P.(C).

3. Prior to his retirement, the appellant was holding the post of Senior Regional Manager, Fertilizers and Chemicals Travancore Ltd. (FACT), Coimbatore. Later the competent disciplinary authority had issued Ext.P1 memo of charges dated 25.08.2014 raising certain allegations and proposing to hold major penalty proceedings in terms of Ext.R1(a) Employees (Conduct, Discipline and Appeal) Rules (see page 129 of the paper book in W.A.No.2500/2015). According to the respondents, they had actually despatched and forwarded Ext.P1 memo of charges dated 25.08.2014 to the appellant. Further it appears that it is thereafter that the appellant has retired from service on 31.08.2014.

4. The learned Single Judge as per the impugned judgment in the W.P.(C). had held that in view of the provisions contained in the abovesaid Employees (Conduct, Discipline and Appeal) Rules [“CDA Rules” for short], more particularly, Rule 32 thereof and in view of the decision rendered by the Three Judge Bench of the Apex Court in State Bank of India V. Ram Lal Bhaskar [(2011) 10 SCC 249] and also in view of the order passed by the Apex Court in the case in Rabindranath Choubey V. Chairman-cum-Managing Director, Mahanadi Coalfields Ltd. [(2013) 16 SCC 411] referring the matter for the consideration of Three Judge Bench on account of certain divergent views expressed by certain Two Judge Bench rulings of the Apex Court and as the CDA Rules governing this case are almost pari materia to the CDA Rules considered in State Bank of India's case supra [(2011) 10 SCC 249] as well as in Mahanadi Coalfields Ltd. Case supra [(2013) 16 SCC 411] and as memo of charges for taking major penalty proceedings has already been issued to the appellant even prior to his retirement, the respondents are justified to withhold the gratuity pending finalisation of the disciplinary proceedings as permitted in Section 4(6) of the Payment of Gratuity Act, 1972. Incidentally there was yet another direction that the competent authority of the respondent FACT should also consider and pass orders on the representation marked as Ext.P6 in the W.P.(C)., filed by the appellant in the matter of disbursal of earned leave surrender benefits, etc. As indicated hereinabove, the respondent FACT had preferred the abovesaid Review Petition to impugn the judgment in the W.P.(C) to the limited extent it has granted the said direction and the learned Single Judge has set aside the said order in the matter of consideration of the representation (marked as Ext.P3 and P4) for disbursal of earned leave surrender benefits in view of the pending proceedings under Rule 32 of the CDA Rules. It is the abovesaid judgment in the W.P.(C) as well as the order in the R.P., that is under challenge in these W