IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1703 of 2009(C)
1. SMT.A. USHA, POURNAMI, 3RD MILE,
... Petitioner
Vs
1. THE PHARMACEUTICAL CORPORATION (IM)
... Respondent
2. THE MANAGING DIRECTOR,
3. THE MARKETING MANAGER,
For Petitioner :SRI.AVM.SALAHUDIN
For Respondent :SRI.E.K.MADHAVAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :20/03/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.1703 of 2009-C
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Dated this the 20th day of March, 2009.
JUDGMENT
The petitioner who was employed under the first respondent
Corporation, has filed this writ petition seeking for a direction to the
respondents to disburse the arrears of salary and all other benefits due to her
for the service rendered by her.
2. The petitioner joined duty in the Corporation on 15.11.2006 and
later she was sent to the Kerala Tailoring Works Welfare Fund Board,
Kannur and was relieved from the first respondent Corporation on
18.8.2007. While continuing on deputation, she was advised by the Public
Service Commission and appointed as Assistant in the General
Administration Department of the Government as per Ext.P2. After getting
relieved from the Tailoring Works Welfare Fund Board, she reported back
before the first respondent and requested for permission to join
Government service. Ext.P3 is the relieving order passed by the second
respondent. It is admitted that the petitioner had given a formal undertaking
that she would pay the amounts, if any, found to be her liability. Ext.P4 is
the said undertaking executed by her. The petitioner has got a case that the
wpc 1703/2009 2
same was executed under duress excreted by the third respondent.
3. After joining the Government service the petitioner requested the
Corporation to disburse the salary arrears and other amounts payable to her.
She was given a reply by Ext.P4 to the effect that she will have to clear the
liabilities to the tune of Rs.20,000/- which is said to be production cost of a
C.D, the custody of which was with the petitioner but found to be missing.
By Ext.P6, she denied her liability in the matter contending that the C.D.
was never entrusted to her and she had no occasion to see the C.D. also.
Again, by Ext.P7 she was directed to remit the amount of Rs.20,000/- for
releasing the terminal benefits. This is under challenge in this writ petition.
She had also sent a registered notice through a lawyer by Ext.P8, before
filing this writ petition.
4. As directed by this court, a statement has been filed on behalf of
the first respondent. The following contentions have been raised: The
petitioner was relieved from the first respondent as per her request dated
29.1.2007. She was informed about the missing of the C.D. prepared by
CONTACT at Thiruvananthapuram. She was asked to retrieve the missing
C.D. and hand it over before she is relieved from the service of the first
respondent Corporation. The petitioner was informed that the C.D. could
not be found and she may be relieved from duty urgently. She also
wpc 1703/2009 3
volunteered to give an undertaking agreeing to reimburse the cost of the
missing C.D. In view of the urgency expressed by her, she was relieved
without following the normal relieving procedural formalities like
obtaining non-liability certificate from each Section particularly from
Marketing Wing where the petitioner was working. Accordingly, she was
relieved from duty from the first respondent Corporation on 29.11.2007 to
enable her to join duty in the new post on 30.11.2007. At that point of time,
it was specifically stated that liabilities, if any, outstanding against the
petitioner is under assessment and it would be intimated to her in due
course. Thereafter, she was informed by letter dated 30.1.2008 that the
C.D. could not be traced out and therefore she was directed to remit an
amount of Rs.20,000/- being the cost of production of the C.D. She did not
remit the amount as per the demand, but demanded for payment of arrears
consequent on wage revision and other benefits. She was directed to remit
an amount of Rs.20,000/- towards the cost of missing C.D. for releasing the
amount due to her. It was also informed by letter dated 2.7.2008 that if the
amount of Rs.20,000/- is not paid within the stipulated time, the cost of
missing C.D. will be recovered and appropriated towards the amount if any
due to the petitioner. Thereafter also, she did not make any payment and
approached this court by filing this writ petition.
wpc 1703/2009 4
5. The first respondent denied the averment that the C.D. was never
entrusted to the petitioner and it is maintained that the C.D. was normally to
be kept under the custody of the petitioner. It is only pursuant to the
recommendation made by the petitioner that the payment was made to
CONTACT. The allegation regarding duress is also denied and it is pointed
out that the petitioner gave the undertaking on her free will and volition.
6. The stand taken by the petitioner is that she was never entrusted
with the C.D. But the stand taken by the respondents is that she was having
the custody of the C.D. and the payment was effected to CONTACT based
on her recommendation.
7. Therefore, clearly it is a disputed question of fact. The liability as
such arises in view of the undertaking given by her also. But she has got a
case that the undertaking had to be given as she was under duress and was
in urgent need of a relieving order to join the Government Department.
8. All the important and vital facts are in dispute between the parties.
The question is whether the petitioner could be made liable for the amount
of Rs.20,000/- and whether the first respondent is entitled to recover it from
the benefits due to her. Really, it requires an adjudication on the facts in
view of the position taken by the respective parties. Therefore, in this
jurisdiction this court will not be justified in entering into a finding on such
wpc 1703/2009 5
disputed questions of fact.
9. Presently, the claim raised by the petitioner is for payment of
amounts by way of revision of salary and other benefits. It is really a money
claim. She is not an employee under the respondents also. She has already
sent a lawyer notice, Ext.P8. Since the respondents claim set off of the
amount of C.D. (Rs.20,000/-), really it is a matter for the civil court to
decide. Therefore it is up to the petitioner to approach the civil court for
appropriate reliefs. This writ petition is not an efficacious remedy at all for
getting the amounts due to her.
Therefore, the writ petition is dismissed. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/