Allowed

Shri v.R.Joshi v. Maharashtra State Textile Corpn.Ltd. and Anr.

Bombay HC23 Aug 2005WP/2037/1992

Case brief

AI extract

What is this about?

This writ petition, allowed, directed management to pay termination dues including gratuity and leave encashment. It rejected unpaid wages claim due to lack of documents for alleged pay revision.

What did the court decide?

Directed respondents to pay gratuity, encashment of earned leave, medical reimbursement, and hospitalisation charges within 12 weeks, with interest from September 29, 1992.

Shri v.R.Joshi Vs Maharashtra State Textile… — Pension and Retirement Benefits | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION NO.2037 OF 1992

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 Shri Vishnu Ramchandra Joshi, )
 54/11, Shankar Kutir, )
 Second Floor, Sion (East), )
 Bombay - 400 022. ).. Petitioner
 Versus

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 1. Maharashtra State Textile )
 Corporation Ltd., )
 A Government of Maharashtra )
 Undertaking, 33A, Lotus House,)
 First Floor, Sir Vithaldas )
 Thakersey Marg, )
 New Marine Lines, )
 Bombay - 400 020. )
 2. Shri Prakash Kallappa Awade, )
 Chairman, M.S.T.C. Ltd., )
 33-A, Lotus House, )
 First Floor, Sir Vithaldas )
 Thakersey Marg, New Marine )
 Lines, Bombay - 400 020. )
 3. Shri Rakesh Chandra Joshi, )
 Managing Director, )
 M.S.T.C. Ltd., 33-A, )
 Lotus House, First Floor, )
 Sir Vithaldas Thackersey )
 Marg, New Marine Lines, )
 Bombay - 400 020. )
 4. Western India Spg.& Mfg.Mills )
 Dattaram Lad Path, )
 Kalachowki, Bombay - 400 033. )
 5. Shri P.G.Sukhtankar, )
 General Manager, )
 Western India Spg.& Mfg.Mills )
 Dattaram Lad Path, )
 Kalachowki, Bombay - 400 033. ).. Respondents

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--

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 Shri S.N.Deshpande for the petitioner.

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 Shri I.A.Sayyed for the respondents.
 --

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 CORAM : R.M.S.KHANDEPARKAR &
 V.M.KANADE, JJ.

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 DATED : 23rd AUGUST, 2005.

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ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J )

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 1. Heard. The petitioner seeks relief in the
 nature of direction to the respondents to pay all the
 dues payable to the petitioner pursuant to the order
 passed by the respondents terminating the services of
 the petitioner with effect from 18th November, 1991.
 Though initially the petition was filed challenging
 the order of dismissal, the learned Advocate appearing
 for the petitioner has restricted the challenge to the
 dues payable by the respondents to the petitioner,
 consequent to the termination of his services. Being
 so, it is not necessary to go into the issue regarding
 the legality of the order of termination of service of
 the petitioner.

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 2. Pursuant to the order of termination dated

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 18th November, 1991, the petitioner through his lawyer

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 served a notice upon the respondents calling upon the
 respondents to pay all his legal dues, such as,
 Gratuity, Medical Reimbursement Allowance,
 Hospitalisation Charges, Leave Encashment, Family
 Pension, etc., as inspite of his earlier registered
 letter dated 20th March, 1992, the respondents had
 failed to pay such dues to the petitioner. In
 response to the said notice, the respondents through
 their Advocate informed that considering the
 provisions of the Payment of Gratuity Act, 1972, and
 in particular the Section 4(6)(b)(i) thereof, the
 gratuity amount has been denied to the petitioner. As
 regards the medical expenses, it was informed by the
 respondents that consequent to the dismissal of the
 petitioner with effect from 20th November, 1991, he
 was not entitled for reimbursement of the medical
 expenses from that date. Besides that, out of the
 reimbursable limit of Rs.11,250.35ps., the petitioner
 was already reimbursed with a sum of Rs.7,070.35 ps.,
 and therefore, he would be eligible for reimbursement
 for the medical expenses to the tune of Rs.4,180/-,
 subject to the production of medical bills to the
 respondents. Further, as regards the claim for
 reimbursement towards kidney operation undergone by
 the petitioner at Hinduja Hospital on 25th July, 1991,
 he was informed that, as per the then existing rules,

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 the hospitalisation and medical expenses over and
 above the normal eligible limit could be reimbursed to
 the full extent in case of treatment for Cancer,
 Leprosy, and T.B.. However, as regards the other
 illness, as a special case, the petitioner was
 sanctioned Rs.12,800/- as per the practice prevailing
 in case of all employees, which is calculated at 100%
 of cost of medicines, 50% of Doctor’s bills and 50% of
 other admissible expenses. Further that an amount of
 Rs.3,840/- was being deducted therefrom at source as
 per the provisions of the Income Tax Act then
 applicable, and the balance amount of Rs.8,960/- was
 sent to the petitioner under a crossed cheque dated
 31st August, 1991 which was refused by him. As
 regards the claim towards leave encashment, it was
 informed to the petitioner that only those employees
 who resign or retire from the services could be
 allowed the encashment of earned leave by the
 competent authority of the respondents and since the
 petitioner was dismissed from the service, he was not
 entitled for encashment of any such earned leave. As
 regards the claim for family pension, the petitioner
 was asked to file necessary application to the Western
 India Mills Employees Provident Fund Trust, and
 therefore, he was asked to approach the said Trust for
 settlement of family pension dues. The petitioner

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 thereupon, through his Advocate, served the notice
 dated 4th July, 1992 calling upon the respondents to
 furnish him the copies of the documents regarding
 rules relating to reimbursement of medical expenses
 and hospitalisation charges on the basis of which the
 petitioner’s claim was sought to be partly rejected
 and partly allowed by the respondents as well as the
 documents relating to the practice prevailing in cases
 of all employees in respect of hospitalisation and
 medical expenses as also the documents relating to the
 Leave Encashment Rules and Revised Wages Arrears
 Rules, as applicable to the employees of the
 respondents. Further, reminder in that regard was
 sent to the respondents on 25th July, 1992 informing
 them that no such documents had been furnished till
 then to the petitioner. It was also informed that the
 petitioner was ready to bear the expenses and the cost
 for getting the copies of those documents, if needed.

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 3. When the matter came up for hearing, the
 learned Advocate appearing for the respondents sought
 to raise preliminary objection to the effect that the
 matter relates to the monetary claim, and therefore,
 there being an alternative efficacious remedy for the
 petitioner and that there are disputed questions of
 facts, therefore, the question of seeking relief in

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 writ jurisdiction does not arise. It is pertinent to

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 note that the rule was issued in the matter on 29th
 September, 1992, after hearing the Advocates for both
 the parties. At no point of time, either at the time
 of issuance of rule or any time thereafter, the
 respondents had sought leave to raise the issue
 regarding non-maintainability of the petition, either
 on account of availability of an alternative
 efficacious remedy to the petitioner, or on the ground
 that this is a monetary claim, or that there are
 disputed questions of fact.

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 4. Undoubtedly, as regards the ground of

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 non-maintainability of the petition on the ground of
 disputed questions of fact, the same can always be
 raised after issuance of rule, irrespective of the
 fact whether the respondents have reserved their right
 in that regard while issuing rule or not. However, as
 regards the objection about availability of
 alternative remedy as the matter relates merely to a
 monetary claim, and that therefore, the Court should
 refrain from exercising the writ jurisdiction, such an
 objection has necessarily to be taken before issuance
 of the rule, unless a specific right in that regard is
 reserved by the respondents at the time of issuance of
 rule. Since no such right is reserved by the

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 respondents, the question of allowing the respondents
 to raise preliminary objection in that regard, and
 that too, after a lapse of 14 years after the date of
 issuance of the rule in the petition does not arise.

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 5. As regards the ground of involvement of
 disputed questions of fact in order to enable the
 respondents to raise such contention, it is necessary
 for the respondents to point out the facts which can
 be said to be disputed or disputable facts. It is not
 mere availability of opportunity to the respondents to
 dispute the fact that is sufficient to get the
 petition dismissed as being not maintainable on that
 count but the respondents raising objection in that
 regard have to disclose from the materials on record
 placed either by the petitioner or by the respondents,

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 that there are, infact, disputed or disputable
 questions of facts involved in the matter. Mere
 availability of opportunity to dispute the fact that
 by itself will not entitle the respondents to justify
 the contention about non-maintainability of the
 petition on that count. In the case in hand, the
 dispute is apparently seen in relation to the right of
 the petitioner to claim certain amount and not in
 relation to the factual aspect of such right of the
 petitioner. Being so, merely because certain rights

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 are disputed, it would not amount to say that there
 are disputed questions of fact. Hence, the objection
 pertaining to the disputed questions of fact is
 totally devoid of substance.

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 6. As regards the merits of the case, the

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 contention of the petitioner is that consequent to the
 termination of his service form 18th November, 1991,
 apart from the family pension, the respondents owed to

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 the petitioner the following dues.

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 1. Gratuity Rs. 31,903.84
 2. Earned Leave
 Encashment 180 days Rs. 47,400.00
 3. Pay difference due to
 Revised Pay Scale from
 1987 to August 1991 Rs. 62,400.00
 (Approx.)
 4. Medical Reimbursement
 upto 7-8-1991. Rs. 05,527.00
 5. Hospitalisation charges Rs. 40,676.00
 --------------------
 Total Rs.1,87,906.84
 --------------------
 Less Medical Reimbursement Rs. 05,527.00
 --------------------
 Rs.1,82,379.84
 ====================

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 The respondents have not filed any affidavit-in-reply
 to the said claim of the petitioner. The learned

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 Advocate for the respondents however referring to the
 reply dated 27th May, 1992, sent by the Advocate for

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 the respondents to the Advocate for the petitioner,
 has strenuously argued that the petitioner has not
 substantiated his claim in relation to the earned
 leave, revision of pay scale, medical expenses and
 hospitalisation charges with necessary documentation.
 He has further submitted that even an attempt on the
 part of the management to forward necessary
 reimbursement towards the medical expenses was foiled
 by the petitioner himself by rejecting the cheque
 submitted in that regard.

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 7. Upon hearing the learned Advocates for the
 parties and perusal of the records, the only point
 which arises for our consideration is whether the
 petitioner has been able to establish his entitlement
 of the dues claimed by him in the paragraph 12 of the

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 petition i.e. as regards the gratuity amount,
 encashment of earned leave, pay difference due to
 revised pay scale, and reimbursement of medical
 expenses and hospitalisation charges, and family
 pension, as stated in paragraph 6 hereinabove.

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 8. As regards the gratuity amount, Section
 4(6)(b)(i) of the said Act provides that the gratuity
 payable to an employee may be wholly or partially
 forfeited, if the services of such employee have been

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 terminated for his riotous or disorderly conduct or
 any other act of violence on his part. The learned
 Advocate appearing for the respondents has fairly
 submitted that he is unable to justify the action on
 the part of the respondents in forfeiting the amount
 by invoking the said provision. Indeed, the records
 nowhere disclose that the petitioner’s services were
 terminated either for riotous or disorderly conduct or
 any other act of violence on his part. The order
 dated 18th November, 1991 nowhere discloses any such
 act being caused for the termination of his services.
 Being so, the respondents were not justified in
 withholding the gratuity amount by invoking the
 provisions comprised under Section 4(6)(b)(i) of the
 Payment of Gratuity Act, 1972. Certainly, therefore,
 the respondents would be liable to pay entire gratuity
 amount legally payable to the petitioner.

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 9. As regards the claim pertaining to the
 encashment of earned leave for 180 days, apart from
 mere denial in the letter dated 27th May, 1992, the
 respondents have not been able to disclose any
 justifiable ground for denying the right to the
 petitioner for encashment of earned leave. There is
 no dispute about the fact that the petitioner had
 rendered necessary qualifying services for the

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 relevant period in order to enable him to claim the
 earned leave. The only contention which was sought to
 be raised, in that regard, is that in view of the
 termination of services of the petitioner, the
 petitioner is not entitled to claim encashment of the
 earned leave. However, the respondents have not been
 able to show any statutory provision or terms of
 contract between the petitioner and the respondents
 which can entitle the respondents to deny such right
 to the petitioner. Being so, the petitioner would
 also be entitled to claim and the respondents would be
 liable to pay to the petitioner the amount claimed by
 the petitioner towards encashment of the earned leave
 for 180 days.

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 10. As regards the claim towards difference of
 wages due to revised pay scale, undisputedly, no such
 claim was putforth by the petitioner under a letter
 dated 2nd May, 1992. The petitioner has not disclosed
 any document which can reveal any such claim having
 been made by the petitioner prior to the filing of the
 petition. Obviously, there was no occasion for the
 respondents to deny such claim prior to the filing of
 the petition. In fact, it was for the first time in
 paragraph 16(k) of the petition stated that the
 petitioner had sought to claim for difference of wages

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 as per the revised pay scale. It was stated in the
 said petition that the petitioner was also entitled to
 get the difference of wages as per the revised pay
 scale which was implemented by the respondent No.4
 with retrospective effect from 1st April, 1987 in
 respect of all the employees. However, as rightly
 submitted by the learned Advocate for the respondents,
 the petitioner has not substantiated the said claim by
 producing any document regarding such revision of pay
 scale. Once it is undisputed fact that the petitioner
 had not made any claim before filing of the petition
 and has sought to raise such claim for the first time
 in the petition, it is necessary for the petitioner to
 substantiate such claim by producing necessary
 documentary materials in support of his plea in that
 regard. The learned Advocate for the petitioner,
 however, has sought to contend that the averments in
 that regard in the petition have not been denied by
 the respondents. Indeed, in case of absence of denial
 by the respondents of any statement of fact, the Court
 is entitled to presume that such statement of fact has
 been admitted by the respondents. However, when it
 relates to the issue regarding the right of a party
 based on certain facts, it is necessary for the party
 approaching the Court by way of writ petition to make
 categorical statement of fact with necessary clarity

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 and substantiate the statement of fact with necessary
 documentation to be filed along with the petition.
 Mere inaction or failure on the part of the
 respondents to deny the contention of the petitioner
 that by itself cannot enure to the benefit of the
 petitioner to insist for the relief based on such
 uncorroborated statements in the petition. Being so,
 merely because the statement in that regard has not
 been denied by the respondents, that by itself will
 not entitle the petitioner to claim alleged difference
 of wages based on the alleged revision in the pay
 scale. There is absolutely no material before us to
 accept the contention on behalf of the petitioner
 that, in fact, there had been any revision of pay
 scale in the year 1987 in relation to the employees of
 the respondents, and therefore, the claim of the
 petitioner, as regards the difference of wages based
 on the revised pay scale, is to be rejected.

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 11. As regards the claim pertaining to the
 reimbursement of medical expenses and hospitalisation
 charges, the right to claim such reimbursement is not
 in dispute. The respondents have heavily relied upon
 their Advocate’s letter dated 27th May, 1992 to claim
 certain restrictions upon such right of the
 petitioner. However, the said letter nowhere

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 discloses any specific rule which can disclose any
 such restrictions on the right of the petitioner to
 claim such reimbursement of medical expenses and
 hospitalisation charges. It is pertinent to note that
 after the service of the said letter dated 27th May,
 1992, the petitioner had been consistently requesting
 the respondents to furnish copies of the relevant
 rules pertaining to the right of an employee for
 reimbursement of medical and hospitalisation expenses,
 and yet the respondents did not furnish the same to
 the petitioner, at any point of time. The petitioner
 had even expressed his desire to bear the costs for
 furnishing the copies of the rules regarding
 reimbursement of the medical and hospitalisation
 expenses, however, there was no response from the
 respondents. What is further surprising is that, in
 respect of the petition, which has been filed
 specifically claiming such reimbursement to the
 petitioner, the respondents have not filed any
 affidavit-in-reply describing as to how the petitioner
 is not entitled to claim such reimbursement, nor in
 the course of arguments the respondents have been able
 to disclose any rule regarding medical and
 hospitalisation expenses which can disentitle the
 petitioner from claiming the same. Being so, the
 petitioner would certainly be entitled for

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 reimbursement of the medical expenses and
 hospitalisation charges incurred by him till or prior
 to the date of his termination from the services of
 the respondents, ofcourse, subject to the production
 of necessary bills, in case such bills have not yet
 been produced by the petitioner to the respondents.

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 12. As regards any other dues including the dues
 of family pension, needless to say that the petitioner
 would also be entitled for the same, subject,
 ofcourse, to filling of the necessary applications, if
 legally required, and submitting those forms to the
 respondents so as to enable them to take necessary
 steps to forward the same to the competent authorities
 to do the needful in the matter to enable the
 petitioner to get necessary legal dues payable to him.

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 13. For the reasons stated above, therefore, the
 petition succeeds. The respondents are directed to
 pay to the petitioner the dues legally payable in
 relation to the gratuity amount, encashment of earned
 leave, reimbursement of medical expenses and
 hospitalisation charges, and all other dues except the
 amount claimed on account of the alleged revised pay
 scale as expeditiously as possible and within a period
 of 12 weeks from today with the interest at the rate

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 of 10 per cent per annum to be calculated from 29th
 September, 1992. As regards the family pension, the
 petitioner shall furnish necessary documentation as
 required under the provisions of law and the
 respondents to do the needful in that regard within a
 period of two months from the date of submission of
 such papers by the petitioner. As regards the claim
 towards medical reimbursement, the petitioner shall
 also submit medical bills, if not submitted so far,
 and the period of three months shall be counted from
 the date of submission of such bills. As regards the
 payment of interest, the same shall not apply in
 relation to the family pension and reimbursement
 regarding medical expenses and hospitalisation
 charges.

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 14. The rule is made absolute in above terms with
 no order as to costs.

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 ( R.M.S.KHANDEPARKAR, J )

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 ( V.M.KANADE, J )

Shri v.R.Joshi v. Maharashtra State Textile Corpn.Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

Shri v.R.Joshi v. Maharashtra State Textile Corpn.Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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