Aluminium Fabricating Company, ... vs K.L.Michael

Kerala High Court

Aluminium Fabricating Company, ... vs K.L.Michael on 23 May, 2024

Author: Dinesh Kumar Singh

Bench: Dinesh Kumar Singh

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
        THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                        WP(C) NO. 35881 OF 2017
PETITIONER/S:

            ALUMINIUM FABRICATING COMPANY, REPRESENTED BY ITS
            PROPRIETOR K.V.KOSHY
            B3-INDUSTRIAL ESTATE, PALLURUTHY,COCHIN-682 006,
            REPRESENTED BY ITS PROPRIETORK.V.KOSHY.
            BY ADVS.
            SRI.A.V.XAVIER
            SRI.RINOY JOSEPH


RESPONDENT/S:

    1       K.L.MICHAEL
            KURISINKAL VEEDU, 15/1400,PALLURUTHY, KOCHI-6.
    2       V.K.MANOHARAN
            BLAPARAMBIL HOUSE, SDPY ROAD,COCHIN.682 006.
    3       THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY
            ACT
            AND THE DEPUTY LABOUR COMMISSIONER, ERNAKULAM,CIVIL
            STATION, KAKKANAD, COCHIN.682 030.
    4       THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY
            ACT
            1972 AND REGIONAL JOINT LABOUR COMMISSIONER,ERNAKULAM,
            CIVIL STATION, KAKKANAD,COCHIN.682 030.
            BY ADVS.
            JUBYRAJ.A.P
            JISHAMOL CLEETUS


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 35881 OF 2017
                                   2

                        JUDGMENT

Dated this the 23rd day of May, 2024 The challenge in this writ petition is against the impugned order in Exhibit.P18 passed by the controlling authority under the provisions of the Gratuity Act, 1972 dated 19.02.2016 in G.C No. 115/2008 and order in Ext.P19 passed by the appellate authority under the payment of the Gratuity Act, 1972 ('the Act' for short) in G.A No. 9/16.

2.The respondent Sri. K.L Michel, had filed an application under Section 7(4)(b) of the payment of the Act claiming an amount of Rs.11,347/- as gratuity from his employer, the petitioner herein, along with an application for condoning the delay in filing the application. The respondent, Sri. K.L Michel, joined in service in the establishment of the petitioner on 14.11.1966 and after rendering 22 years of continuous service, got retrenched from service on 19.11.1988. Sri. Michel was working as fabricator and last full months wages was Rs.893.90/-. He claimed an amount of Rs.11,347/- as gratuity from the petitioner.

3.The notices as per Rule 11(1) of the Kerala payment of Gratuity Rules 1973, were issued to the parties for entering appearance. The petitioner herein filed a written statement and WP(C) NO. 35881 OF 2017 3 raised the question of limitation arising that there was no sufficient cause for condoning the delay of 20 years in preferring the claim by the respondent for making a claim for payment of Gratuity. Thereafter, the question of maintainability of application was taken for consideration and an order dated 04.10.2013 was passed as follows;

"On a plain reading on Section 7 (in particular Section 7(5) or 7(7) and Rule 18 of the Rules, it is obvious that legislative has not expressly provided for requirement of filing an application for condonation of delay. The Gratuity should be claimed by an employee within a reasonable period, but at the same time the provisions of the limitation Act would not be applicable as held by several High courts for claiming the payment of gratuity."

4.Thereafter, the following issues were framed by the controlling authority for determination;

"1) Whether the application is maintainable under the provisions of the Payment of Gratuity Act, 1972?

2) Whether the opposite party K.V Joshy, Managing Partner, Aluminium Fabricating Company, M.G Road, Ernakulam is liable to pay gratuity for the entire services of the applicant as claimed by him?

3) What is the eligible amount of gratuity?"

WP(C) NO. 35881 OF 2017 4

5.The controlling authority has held that as per Rule 10(11) of the Rules of 1973, the application is maintainable as there was long pending litigation since 1988 between the parties, before the Labour court and High court with regard to the closure of the establishment wherein the respondent was working and he was retrenched and therefore, it was sufficient cause for condoning the delay in filing the application. With respect to the issue No.2, it was held that out of Rs.90,000/- was deposited by the management towards the payment of wages to the retrenched employees, the respondent got only for Rs.9000/- as his share and this amount was not towards the gratuity amount but only towards an interim relief.

6.The General Secretary of the Union, Sri. V. K Manoharan was examined as AW2 before the Labour court would say that, an amount of Rs.90,000/- deposited before the court was towards the amount of retrenchment compensation. The amount of Rs.90,000/- deposited by the court was as contemplated under Section 25F of the Industrial Dispute Act and the said amount would not include the payment of gratuity payable to the respondent workman or any other workman, who were retrenched. Considering the 22 years of service of the respondent and his pay of Rs. 893/-, it was held that the respondent workman, Sri. K.L Michel, would be eligible to get WP(C) NO. 35881 OF 2017 5 gratuity of Rs.11,346/- with interest at the rate of 10% from the date on which the gratuity amount fell due till the date of payment. The petitioner was directed to pay the gratuity along with interest, within a period of 30 days of receipt of this order.

7.This order came to be challenged before the appellate authority. However, the appellate authority has dismissed the appeal by the impugned order dated 29.03.2017 in Ext.P19.

8.The only submission which was made by the learned counsel for the petitioner was that Rs.90,000/- deposited by the petitioner was towards full and final settlement of all dues of the respondent and another workmen, who were retrenched from the establishment of the petitioner. This amount of Rs. 90,000/-would also include the gratuity amount payable to the retrenched workman.

9.The retrenchment compensation is determined under Section 25F of the Industrial Dispute Act. However, gratuity is to be determined under the provisions of payment of the Gratuity Act, 1972. Therefore, the retrenchment amount would not include the gratuity amount payable to an employee and if the employer has failed to make the payment of gratuity amount, it has to be determined as per the provisions of Section 7(4) of the payment of WP(C) NO. 35881 OF 2017 6 gratuity Act.

10.I do not find any substance in this submission of the learned counsel for the petitioner that the retrenchment compensation of Rs. 90,000/- in respect of eleven retrenched employee would also include the gratuity amount, as the same was deposited towards the full and final claim of retrenched employee.

In view thereof, I find no substance in this writ petition, which is hereby dismissed.

Sd/-

DINESH KUMAR SINGH JUDGE SJ WP(C) NO. 35881 OF 2017 7 APPENDIX OF WP(C) 35881/2017 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE CHALLAN NO.022243 DATED 07.07.1993 FOR DEPOSIST OF RS.90,000/- WITH THIS HON'BLE COURT.

EXHIBIT P2 COPY OF THE CONSENT LETTER OF 7 WORKERS INCLUDING 1ST RESPONDENT DATED 07.12.1993 TO THE 2ND RESPONDENT.

EXHIBIT P3 COPY OF THE UNION RESOLUTION DATED 30.12.93 AUTHORISING THE 2ND RESPONDENT TO DISBURSE THE COURT DEPOSIT AMOUNT AMONG THE WORKERS.

EXHIBIT P4 COPY OF THE CMP NO.7436/1994 DATED 21.03.94 TO WITHDRAW THE DEPOSIT AMOUNT. EXHIBIT P5 COPY OF THE LETTER NO.B 5313/88 DATED 19.07.94 OF DISTRICT LABOUR OFFICER WITH REQUEST TO PRODUCE RELEVANT RECORDS IN SUPPORT OF THE DISBURSEMENT OF THE AMOUNT TO WORKERS.

EXHIBIT P6 COPY OF THE REPLY WITH REF. AFC.4154/94 DATED 23.07.94 OF THE THEN PARTNER OF THE PETITIONER ESTABLISHMENT TO THE EXHIBIT P5 LETTER.

EXHIBIT P7          COPY OF THE LETTER OF THE PETITIONER
                    ESTABLISHMENT     DATED      29.07.1994     IN

CONTINUATION OF EXHIBIT P6 INFORMING THE DISTRICT LABOUR OFFICER THAT AMOUNT OF RS.90,000/- DEPOSITED IN THE COURT IS TOWARDS FULL AND FINAL SETTLEMENT OF ALL THE AMOUNTS DUE TO THE WORKERS INVOLVED IN THE CASE INCLUDING NOTICE PAY, GRATUITY, COMPENSATION BONUS ETC.

EXHIBIT P8 COPY OF THE COMMON JUDGMENT IN O.P.NOS.1120/2000 AND 8661/2000 DATED 28.06.2004.

EXHIBIT P9 COPY OF THE JUDGMENT OF DIVISION BENCH OF THIS HON'BLE COURT DATED 01.02.2006 IN WRIT APPEAL NOS.1959/2004 AND 2009/2004 UPHOLDING THE SINGLE BENCH DECISION. EXHIBIT P10 COPY OF THE LETTER DATED 10.01.2008 OF THE 1ST RESPONDENT SENT TO THE PETITIONER ESTABLISHMENT WITH REFERENCE TO EXHIBIT P8 JUDGMENT DATED 28.06.2004 CLAIMING AN AMOUNT OF RS.1,21,283.15.

EXHIBIT P11 COPY OF THE COMPLAINT DATED 07.03.2008 OF WP(C) NO. 35881 OF 2017 8 THE 1ST RESPONDENT FILED BEFORE THE DISTRICT LABOUR OFFICER, ERNAKULAM ALLEGING NON-RECEIPT OF ANY BENEFIT FROM THE PETITIONER.

EXHIBIT P12        COPY OF THE LETTER OF THE LABOUR OFFICER
                   DATED   16.04.2008    TO    THE    PETITIONER

ESTABLISHMENT ENQUIRING ABOUT THE EXHIBIT P11 COMPLAINT.

EXHIBIT P13 COPY OF THE DETAILED EXPLANATION OF THE PETITIONER DATED 08.05.2008 GIVEN TO EXHIBIT P12 WITH 4 ENCLOSURES THERETO. EXHIBIT P14 COPY OF THE APPLICATION DATED 24.06.2008 FILED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT, CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, ERNAKULAM.

EXHIBIT P15 COPY OF THE PETITION DATED 24.06.08 FILED BY THE 1ST RESPONDENT ALONG WITH THE EXHIBIT P14 APPLICATION.

EXHIBIT P16 COPY OF LETTER OF THE 1ST RESPONDENT DATED 21.01.2009, ADDRESSED TO THE DIST.

LABOUR OFFICER, EKM WITH PRAYER TO CONDONE THE DELAY IN FILING APPLICATION AND TO ACCEPT THE SAME.

EXHIBIT P17 COPY OF THE ORDER DATED 4TH OCTOBER 2013 OF THE 3RD RESPONDENT HOLDING THAT THE EXHIBIT P14 APPLICATION IS MAINTAINABLE BY REFERRING TO SECS. 7(5) & 7(7) AND RULE 18.

EXHIBIT P18        COPY OF THE ORDER DATED 19.02.2016 OF THE
                   3RD    RESPONDENT     IN     G.C.NO.115/2008

DIRECTING THE PETITIONER ESTABLISHMENT TO PAY GRATUITY OF RS.11,346/- WITH 10% INTEREST FROM THE DATE ON WHICH GRATUITY AMOUNT FELL DUE.

EXHIBIT P19 COPY OF THE ORDER DATED 29.03.2017 IN G.A.NO.9/2016 OF THE 4TH RESPONDENT WHICH WAS SERVED TO THE PETITIONER ESTABLISHMENT ON 21.10.2017.