1. Dispute over gratuity, pension, and leave encashment calculation for a former employee with both daily-wage and regular service. (Para 1 )
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2022 Supreme(Online)(Ker) 79590
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.G. Arun, J
Vikraman Chettiar B. – Appellant
Versus
Regional Cancer Centre (RCC) – Respondent
WP(C) NO. 15226 OF 2021
Advocates:
For the Appellants/Petitioners: Gikku Jacob
For the Respondents: Athul Shaji
For the Appellants/Petitioners: Gikku Jacob
For the Respondents: Athul Shaji
The court directed the respondent authority to consider a detailed representation from the employee regarding the reckoning of temporary service for gratuity and pension benefits and pass a reasoned order after providing a hearing.
Headnote:(A) Service Benefits - Gratuity and Pension - Reckoning of service - Petitioner challenged the computation of service by counting only the period after regularization (2010) and excluding the period of temporary/daily wage service for the purpose of gratuity and pension.
(B) Administrative Law - Representation - Failure of authority to respond to a representation - When a petitioner submits a representation regarding service benefits and the respondent fails to respond, the court may direct the respondent to take a reasoned decision after hearing the petitioner.
Issues: Whether the petitioner is entitled to gratuity and pension benefits by reckoning his total service including the period prior to regularization.
Legal Category Hierarchy
-
administrative law
-
administrative action
- consideration of representation (Para 3)
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administrative action
- employment and labour law
- practice and procedure
Table of Contents
2. Employee claims full service period for benefits; employer argues only regularized service counts for gratuity and pension eligibility. (Para 1 , 2 )
3. Court found prima facie substance in employer's response but directed consideration of employee's representation due to lack of earlier response. (Para 3 )
4. What remedy is available when an employer fails to respond to a representation regarding service benefits?
The court may direct the employer to consider the representation and pass a reasoned order after affording a hearing, without deciding the merits. (Para 3 )
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 6th day of April, 2022
The petitioner joined the Regional Cancer Centre / 1st respondent as daily wages Security Guard on 11.03.1996 and retired from regular service as Sergeant on 28.02.2019. The respondents granted his gratuity, computing service of only 8 years and 6 months, whereas the petitioner had 21 years of service. The petitioner therefore submitted P4 representation demanding gratuity reckoning his service for 21 years. By Ext.P5 order, leave surrender value of Rs 303780/- was sanctioned, but the amount is not equivalent to 300 days earned leave. The petitioner's pension has not been computed correctly and Pension Payment Order is also not issued. This writ petition is filed seeking issuance of a writ of mandamus, directing the respondents to pay full Earned Leave Surrender value, gratuity equivalent to 21 years of service, provident fund and full monthly pension under the RCC Employees Pension Scheme, with statutory interest from 28.02.2019.
2. In the counter affidavit filed on behalf of the 1st respondent, it is stated as follows;
3.The RCC had no sanctioned post of Security Guard till 06.09.2010. As the hospital's patient load increased from time to time, the RCC Society decided to appoint various categories of employees temporarily. Accordingly, the petitioner was appointed on 24.03.1996 as Security Guard on daily wages. The Government, vide G.O(M.S) No. 39/2002/P&ARD dated 26.08.2002, permitted to continue the petitioner's service purely on a temporary basis. Later, as per G.O(M.S.)No. 580/2010/H&FWD dated 06.09.2010, the Government created 12 posts of Security Guards with a condition that the regularisation of temporary employees shall be prospective. In terms of that order the petitioner's service was regularised with effect from 06.09.2010. As per Rule 44 of the RCC Society Service RULs, only regular period of service can be reckoned for gratuity. Regular service of the petitioner is only 8 years and 6 months and gratuity for the above period has been paid. The minimum period stipulated for pension under the RCC Employees Pension Scheme is 10 years. As the petitioner had only 8 years and six months service he is not entitled for pension. Therefore, petitioner is sanctioned ex-gratia pension at the rate of Rs. 5,474/-. per month. The allegation that pension sanction order is not issued to the petitioner is false. A copy of the pension sanction order was issued to the petitioner on 02.09.2021. As such the petitioner is not entitled for any relief in this writ petition.
Even though I find prima facie substance in the submissions made on behalf of the 1st respondent, the petitioner having submitted a representation and the 1st respondent having failed to respond, I deem it appropriate to direct the 1st respondent to address the petitioner's grievance and take a reasoned decision thereon.
Accordingly, the writ petition is ordered as under;
The petitioner shall file a detailed representation before the first respondent, highlighting his grievances within two weeks of receipt of a copy of the judgment.
Thereupon, the first respondent shall take up the representation and pass a considered order within two months, after affording an opportunity of hearing to the petitioner.
