The Karthikappally Taluk ... vs P.Mohanakumari
2021 Latest Caselaw 20641 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                               &
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
   TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                     WA NO. 1254 OF 2021
 AGAINST THE JUDGMENT DATED 17-12-2020 IN WP(C) 23664/2013 OF
               HIGH COURT OF KERALA, ERNAKULAM.


APPELLANT/2ND RESPONDENT   :


          THE KARTHIKAPPALLY TALUK CO-OPERATIVE AGRICULTURAL
          AND RURAL DEVELOPMENT BANK LTD. NO.A-326,
          HARIPAD P.O., ALAPPUZHA DISTRICT, REPRESENTED BY
          ITS SECRETARY, PIN-690 514.
          BY ADVS.T.R.HARIKUMAR & ARJUN RAGHAVAN




RESPONDENTS/LEGAL HEIRS OF THE WRIT PETITIONER/
RESPONDENTS 1 & 3     :



    1     P.MOHANAKUMARI, AGED 64 YEARS,
          W/O.LATE A.DAMODARAN, RESIDING AT PUTHUMANAN HOUSE,
          PUTHIYAVILA P.O., KARTHIKAPPALLY,
          ALAPPUZHA DISTRICT-690 531.
    2     PONNI.M., D/O.LATE A.DAMODARAN, RESIDING AT
          PUTHUMANAN HOUSE, PUTHIYAVILA P.O., KARTHIKAPPALLY,
          ALAPPUZHA DISTRICT-690 531.
 W.A No.1254 of 2021                         2




     3       UNNIKUTTAN.D., S/O.LATE A.DAMODARAN,
             RESIDING AT PUTHUMANAN HOUSE,
             PUTHIYAVILA P.O., KARTHIKAPPALLY,
             ALAPPUZHA DISTRICT-690 531.
     4       STATE OF KERALA, REPRESENTED BY THE SECRETARY,
             CO-OPERATIVE DEPARTMENT, GOVERNMENT OF KERALA,
             THIRUVANANTHAPURAM, PIN-695 001.
     5       THE DIVISIONAL MANAGER, LIFE INSURANCE
             CORPORATION OF INDIA, KOTTAYAM, PIN-686 001.




             R1 TO R3 BY SRI.P.V.BABY,
             R4 BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER,
             R5 BY SRI.S.EASWARAN,SC


      THIS    WRIT      APPEAL   HAVING   COME     UP    FOR    ADMISSION    ON
05.10.2021,       THE    COURT   ON   THE       SAME    DAY    DELIVERED    THE
FOLLOWING:
 W.A No.1254 of 2021                              3




           ALEXANDER THOMAS & A.BADHARUDEEN, J J.
              ------------------------------------------------
                        W.A No.1254 of 2021
   (Arising out of judgment in W.P(C) No.23664 of 2013 dated 17-12-2020 of this Court.)
              ----------------------------------------------------
              Dated this the 5th day of October, 2021




                                JUDGMENT

ALEXANDER THOMAS, J.

The above writ appeal has been filed by the 2 nd respondent in

W.P(C) No.23664 of 2013 seeking to set aside the impugned

judgment dated 17-12-2020 rendered by the learned Single Judge

in W.P(C) No.23664 of 2013 filed by the predecessor of the

contesting respondents 1 to 3.

2. Heard Sri.T.R.Harikumar, the learned counsel

appearing for the appellant in the W.A/R2 in W.P(C), Sri.P.V.Baby,

the learned counsel appearing for the contesting respondents 1 to 3

in W.A/ LRs of the deceased writ petitioner, Sri.Saigi Jacob Palatty,

the learned Senior Government Pleader appearing for R4 in W.A

(State of Kerala)/ R1 in W.P(C) and Sri.S.Easwaran, the learned

Standing counsel for the LIC appearing for R5 in W.A/R3 in

W.P(C).

3. Sri.T.R.Harikumar, the learned counsel appearing

for the appellant Co-operative society and Sri.P.V.Baby, the

learned counsel appearing for the contesting respondents

1 to 3/LRs of the deceased writ petitioner would submit

that this writ appeal can be disposed of in the light of

the directions and orders passed by this Court in the

similar batch of cases covered by the common judgment

dated 16-02-20 21 rendered by the Division Bench of

this Court in W.A No.229 of 2021 and connected matters.

4. It will be pertinent to refer to paras 2 to 6

of the said judgment of the Division Bench of this Court

in W.A No.229 of 2021 and connected appeals, which read as

follows :

"2. The appellants herein are the respondents in the above writ petitions (civil) and are co-operative societies registered in terms of the provisions contained in the Kerala Co-operative Societies Act, 1969 and the Rules framed thereunder.

3. The petitioners are employees who have retired from the service of the respective appellant Banks concerned and the dispute is regarding the payment of gratuity due to them. The appellant Banks had taken the decision that

they have paid the entire due amounts by way of gratuity to the respective writ petitioners concerned. During the pendency of these writ petitions, the matters were referred by the Division Bench of this Court to a Full Bench as per reference order dated 21.08.2015, with respect to the entitlement of the retired employees to receive excess gratuity amount above the ceiling limit by the Life Insurance Corporation (LIC) to the employer societies under the Group Gratuity Scheme. The reference has been answered by the Full Bench in the case in Chandrasekharan Nair G. & Others Vs. Kerala State Co-operative Agricultural and Rural Development Bank Ltd. & Others [2017 (4) KLT 276]. It is held by the Full Bench in Chandrasekharan Nair's case (supra) that if the employer society receives any amount more than that of the ceiling limit from the LIC, under the arrangement made between the employer society and LIC in terms of the Group Gratuity Scheme, then such amounts over and above the ceiling limit has to be passed on by the employer society to the retired employee concerned and that the employer society does not have any authority to retain the said amount and that by virtue of the statutory clause contained in Section 4(5) of the Payment of Gratuity Act, the said policy taken by the said agreement, arrived at between the employer society and the LIC in terms of the policy, becomes an agreement of the employees to receive better terms of gratuity as understood in the provisions of the Payment of Gratuity Act. It has also been held by the Full Bench in paragraph No.8 of the abovesaid decision in Chandrasekharan Nair's case (supra) that the entitlement of the employee is not confined to the amount received under the policy even if it falls short of the statutory ceiling limit and that Circular No.5/2016 and similar circulars issued by the Registrar of co-operative societies stem out of a misconception of the statutory provisions and quashed to that extent. In other words it has also been clarified and ordered by the Full Bench in the above said reference order that even if the amounts received by the employer society to the LIC falls short of the statutory ceiling limit contained in the Payment of Gratuity Act, still the same will not absolve the liability of the employer society in paying the amounts in tune with the ceiling limit. After answering the reference, the Full Bench has ordered that the writ petitions should be posted for disposal before the learned Single Judge to consider the individual facts concerned in each case. After the said remit the learned Single Judge has now rendered the impugned common judgment 17.12.2020 in the above

4 writ petitions as well as in various other writ petitions. The said impugned judgment dated 17.12.2020, rendered by the learned Single Judge in the present writ petitions read as follows:-

"All the petitions pertain to payment of gratuity. Learned counsel for the parties are ad-idem that the Full Bench judgment of this Court followed by learned Single Bench of this Court is applicable to the controversy in issue. Writ petitions are allowed in terms of the directions contained in the Full Bench judgment of this Court in Chandrasekharan Nair G. & Others v. Kerala State Cooperative Agricultural and Rural Development Bank Ltd. & Others (2017 (4) KLT 276)."

4. A reading of the impugned judgment would make it clear that the learned Single Judge has not entered into the facts and circumstances of each case and has only issued a general order that the writ petitions are allowed in terms of the directions contained in the Full Bench decision in Chandrasekharan Nair's case (supra). It is asserted by the appellants in each of these cases that the entire amount received by them from the LIC in terms of Group Gratuity Scheme, has already been handed over to the retired employees concerned in these cases and that therefore, the direction issued by the learned Single Judge in a general manner stating that the writ petitions are allowed, will create unnecessary confusions and it may lead to further unnecessary litigation.

5. The writ petitioners/retired employees concerned appears to have taken the stand that the entire higher amounts paid by the employer society to the LIC has not been handed over to them. The abovesaid dispute between the employer society and the retired employees is only a question of fact and there is no necessity for us to adjudicate and determine that issue.

6. It is for the employer society to give all the material particulars to the retired employees concerned in these cases stating as to the details of the gratuity amounts due to the employees concerned and the total amounts received from the LIC under the Group Gratuity Scheme and whether the said amount is above the ceiling limit and also as to whether the said entire amounts paid by the LIC has, in fact, been paid by the employer society to the respective retired employee concerned, etc. Steps in that regard should also be taken by the appellant societies

concerned to permit the writ petitioners/retired employees concerned to inspect the records of the Bank in order to convince them as to whether or not the abovesaid amounts paid by the LIC has, in fact, been handed over by the employer society to the retired employees concerned. "

5. In para No. 7 of the said judgment in W.A No.229 of

2021 and connected cases, this Court has given specific directions.

Accordingly, following directions and orders are passed in this case.

(i) The appellant Society will immediately issue notice of

hearing to the contesting respondents 1 to 3/LRs of the deceased

writ petitioner employee instructing them or their authorized

representative/counsel to attend a personal hearing in the matter

on a date that being fixed by the Secretary of the appellant society

concerned. In the said notice of hearing the appellant society

should give all the material particulars in a precise and meticulous

manner as to the total amounts due by way of gratuity to the retired

employees concerned and the total amounts actually received by

them for the LIC in terms of the gratuity scheme and also the

details of the amounts actually paid to the retired employees

concerned. In other words, the said notice should be a

comprehensive notice which should make it clear to all the material

particulars as to whether or not the entire amounts handed over by

the LIC to the employer society has, in fact, been given and released

to the retired employee concerned.

(ii) After issuing such notice of hearing the appellant society will

permit the LRs of the deceased writ petitioner (retired employee

concerned) to inspect the records of the appellant Bank in the

presence of an official of the appellant society in order to ascertain

as to whether or not the entire amounts paid by the LIC has, in fact,

been disbursed by the appellant society to the retired employee

concerned. The LRs of the deceased writ petitioner may also be

permitted to take copies of any documents which are relevant to the

factual issues in this case, for perusal.

(iii) Thereafter the competent official of the appellant society will

conduct a personal hearing of each of these retired employees

concerned and the said employees will also be at liberty to give their

written submissions in the matter if they have any complaint that

the entire amounts paid by the LIC to the Bank has not been paid to

the employee concerned and if the retired employee concerned has

any such case, then they should give the material particulars in that

regard to substantiate their claim in that regard. The competent

official of the appellant Bank concerned will hear the retired

employees concerned as above and then will advert to the

objections and submissions of the retired employee concerned and

then ascertain as to whether the entire amounts paid by the LIC to

the society has, in fact, been handed over to the employee

concerned. The objections or submissions of the LRs of the

deceased writ petitioner concerned, that the entire amounts has not

been paid, etc. may also be duly adverted to and considered. After

completing this process if it is found that the entirety of the

amounts paid by the LIC has not been released by the appellant

society to the retired employee concerned, then the amounts in that

regard should be immediately released by the appellant society to

the retired employee concerned. On the other hand, after

completing the abovesaid processes,the appellant Bank is of the

considered stand that the entire amounts paid by the LIC has

already been paid by the appellant Bank to the retired employees

concerned then they may state so. After completing these process

necessary proceedings may be issued by the competent officer of

the appellant society concerned and a copy of the same should be

given to the respective LRs of the deceased writ petitioner

concerned.

(iv) If any of the retired employee concerned have a case that the

gratuity amounts in terms of the ceiling limit has not been paid and

that the amounts handed over by the LIC to the appellant society is

lesser than the ceiling limit, then they may raise such claims and

grievances also before the appellant society concerned in which

case the appellant society will also determine those issues. If, as a

matter of fact, the amounts paid by the LIC to the appellant society

is lesser than the said ceiling limit, then it goes without saying that

the appellant society will also be liable to pay the said differential

amount so that the applicable ceiling limit, which is higher than the

amounts paid by the LIC, should also be paid by the appellant

society to the retired employee concerned, as ordered by the Full

Bench in Chandrasekharan Nair's case [2017 (4) KLT 276]

(supra).

(v) Thereafter, in case, the retired employee concerned have any

legally justiciable grievances in the matter, they will be at liberty to

work out their remedies in the manner known to the law.

6. The impugned judgment dated 7-12-2020 rendered by

the learned Single Judge in W.P(C) No.236 of 2013, will stand

modified as above. It is made clear that this Court has not entered

into the merits of the controversy as to whether or not the entire

amount paid by the LIC to the appellant Society has in fact been

disbursed by the appellant Society to the retired employee

concerned, and all those factual aspects would come within the

determination of the factual issues herein above.

With these observations and directions, the writ appeal will

finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

A.BADHARUDEEN, JUDGE

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