WP(C) NO. 34313 OF 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
WP(C) NO. 34313 OF 2018
PETITIONER:
LEELAKUTTY K.N. @ LEELA MOHAN
AUXILIARY NURSR MIDWIFE(RTD.), A.N.M. IDUKKI
DISTRICT CO-OPERATIVE HOSPITAL, SOCIETY LTD. NO. I.
177, PB NO.32, THODUPUZHA - 685 584, RESIDING AT
KAVUKATTU HOUSE, KANJIRAMATTOM, THODUPUZHA EAST
P.O., IDUKKI.
BY ADV P.C.SASIDHARAN
RESPONDENTS:
1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)
IDUKKI, PIN - 685 001
2 IDUKKI DISTRICT
CO-OPERATIVE HOSPITAL SOCIETY LTD NO. I. 177,
P.B. NO. 32,
THODUPUZHA- 685584, REPRESENTED BY ITS SECRETARY
BY ADV A.N.SANTHOSH
SMT SURYA BINOY, SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 34313 OF 2018 2
JUDGMENT
The petitioner contends that she was appointed as Auxiliary Nurse Midwife in the Idukki District Co-operative Hospital Society as per Ext.P1 order dated 3.8.1993. She attained superannuation on 31.12.2017. She relies on Ext.P2 certificate and contends that she has put in 23 years of service. The grievance of the petitioner is that the respondents have not disbursed the eligible gratuity due to the petitioner. It is the case of the petitioner that claiming gratuity, Ext.P3 representation was submitted before the Joint Registrar on 3.7.2018. However, no action was taken. It is in the afore circumstances that this writ petition is filed seeking the following reliefs:
i) To issue a writ of mandamus or other appropriate writ, order or direction commanding and compelling the 2nd respondent to disburse gratuity due to the petitioner as provided under Section 62 of the Co- operative Societies Act read with Rule 59 of the Co-operative Societies Rules.
ii) To declare that the petitioner is entitled for gratuity for the service rendered by her under the 2nd respondent.
2. A counter affidavit has been filed by the 2nd respondent WP(C) NO. 34313 OF 2018 3 challenging the maintainability of the writ petition filed under Article 226 of the Constitution of India. The respondents refuted the contention of the petitioner that she is an employee of the society. They contend that the employees of the hospital have been appointed on the strength of an agreement entered into by the management and the employee. It is also stated that the petitioner was appointed when she had attained the age of 44 years and she was permitted to work for a period of 10 years even after her date of retirement. It is further stated that from the year 2008 onwards the Employees State Insurance was made applicable to the hospital and from the said date, the contribution is being regularly remitted.
3. I have heard Sri. Ashraf, the learned counsel appearing for the petitioner and Sri. A.N.Santhosh, the learned counsel appearing for the respondents.
4. The learned counsel appearing for the petitioner would rely on the judgment of this Court in Muvattupuzha Agricultural Cooperative Bank v. District Labour Officer and Ors. [2007 (1) KLT 863 and it is submitted that a casual employee, even if he was not engaged on a monthly salary, is entitled to gratuity.
5. Sri. A.N.Santhosh would rely on the law laid down by this Court in Madhusoodanan Nair S v State of Kerala and Others [2019 (4) KLT 67], and it is submitted that the society would come within the fold of the Payment WP(C) NO. 34313 OF 2018 4 of Gratuity Act only if they had employed 10 or more persons on any given day of the preceding 12 months prior to the petitioner's retirement. It is also submitted that no material is before this Court as regards the last drawn salary of the petitioner, the period of service and other factual materials. It is submitted that in view of the above, if any amount is due, the petitioner will have to prove the same before the statutory authority, contends the learned counsel.
6. Having considered the submissions, I am persuaded to agree with the submissions of the learned counsel appearing for the 2nd respondent. It would not be proper for this Court to adjudicate the various facets of the factual disputes in this writ petition filed under Article 226 of the Constitution of India. I am of the view that it would only be appropriate for the petitioner to file an application before the Arbitrator or the Controlling authority, as the case may be, as per the relevant provisions of the Payment of Gratuity Act and claim the entire amount due in the light of the law laid down by the Full Bench of this Court in General Manager, Malappuram District Co-operative Bank v. Janardhanan, [2018 (5) KHC 73].
7. I am conscious of the fact that the writ petition was filed in the year 2018 and the same was pending before this Court for the last 3 years. However, in view of the contentions raised by the respondents, it would not be proper for this Court to delve into the factual matters. WP(C) NO. 34313 OF 2018 5
8. In that view of the matter, there will be a direction to the petitioner to approach the statutory authority under Section 69 of the Co- operative Societies Act or the Controlling Authority under the Payment of Gratuity Act. If the petitioner approaches the said authority and files an application in accordance with law, the said authority shall consider the same and take a decision expeditiously, in any event, within a period of five months from the date of registration of the application. While considering the application for condonation of delay, if any, the authority concerned shall take note of the pendency of this writ petition before this Court from 22.10.2018. Needless to say, the 2nd respondent shall duly cooperate with the proceedings and ensure that the matter is disposed of within the time period mentioned above.
The writ petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE ps WP(C) NO. 34313 OF 2018 6 APPENDIX OF WP(C) 34313/2018 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO.14/93 DATED 3.8.1993 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 12/1/2018 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 3/7/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE NOTICE FOR THE GENERAL BODY OF THE SOCIETY FOR THE YEAR 2016-17 RESPONDENTS' EXHIBITS:
EXHIBIT R2(a) CERTIFIED COPY OF THE RESOLUTION NO.33(a) DATED 10/6/1993 OF THE RESPONDENT SOCIETY WITH ENGLISH TRANSLATION