M/S. Malabar Eye Hospital vs Sheeja A K @Sheeja Viswanath
2022 Latest Caselaw 8609 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
                        TH
     WEDNESDAY, THE 6        DAY OF JULY 2022 / 15TH ASHADHA, 1944
                        WP(C) NO. 21558 OF 2022
PETITIONER:

          M/S. MALABAR EYE HOSPITAL
          AND RESEARCH CENTRE PVT. LTD., ERANHIPALAM,
          KOZHIKODE - PIN 673006
          REPRESENTED BY ITS MANAGING DIRECTOR

          BY ADVS.
          SRI.ANAND, SR.
          LATHA ANAND
          M.N.RADHAKRISHNA MENON
          K.R.PRAMOTH KUMAR
          S.VISHNU (ARIKKATTIL)
          RADHAKRISHNA PILLAI B
          SIDHARTH P.S.
          GOVIND P.


RESPONDENTS:

    1     SHEEJA A K @SHEEJA VISWANATH
          D/O A.M. KUNHIRAMAN, NAROKUNNUMMAL (H),
          MENHANNIAM (PO), PERAMBRA, KOZHIKKODE - 673525

    2     NIRUPAMA RAVI SANKAR,
          D/O RAVI SANKAR, KRISH VIHAR, CHULLIYODE ROAD,
          NEAR LAL STORES, CIVIL STATION P.O.,
          KOZHIKODE - 673020

    3     DR. TRESA T. MATHEW,
          W/O KURIAKOSE, A5 QUARTERS,
          MEDICAL COLLEGE P.O., KOZHIKODE - 673008

    4     CONTROLLING AUTHORITY
          UNDER PAYMENT OF GRATUITY ACT (DEPUTY LABOUR
          COMMISSIONER), KOZHIKODE CIVIL STATION P.O.,
          KOZHIKODE - 673020

          SRI V K SUNIL, SR.GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.21558/2022                  2




                            JUDGMENT

Ext.P11 proceedings dated 18.1.2022 of the Controlling

Authority under the Payment of Gratuity Act, 1972 delinking the

joint trial has been assailed in the present petition on behalf of the

management.

2. The petitioner management is a Company registered

under the Companies Act. It is alleged to have selected and

engaged respondent Nos.1 to 3 as Consultant Ophthalmic Surgeons

and were being paid remuneration on the basis of consultation and

surgeries done each day with a specific understanding that they will

be engaged as per the requirement. At the instance of one

Dr.Chandrakanth, respondents 1 to 3 have submitted applications

before the fourth respondent - Controlling Authority for payment of

the Gratuity, which were numbered as G.C.78, 79 and 87 of 2018.

On completion of the pleadings, the applicant in G.C.No.78 of 2018

submitted an application dated 30.3.2021 for trying all the three

gratuity cases together. After considering the application, the

Controlling Authority vide order dated 31.3.2021 Ext.P8 accepted

the aforementioned request.

3. Learned Senior Counsel Sri.Anand assisting the counsel

on behalf of the petitioner submitted that after having gone

through the evidence rendered in the case and the cross

examination, claimants have certainly taken a volte-face by

submitting applications for segregating the trial of all the cases for

the reason that certain answers in the cross examination prima

facie are against the applicants in the claim petitions. The said

request was objected to by filing a chief affidavit and the additional

chief affidavit, but the respondent has delinked the trial. It is on

the request of the applicants, the trial of all the cases was clubbed

and to be decided together, but at the whims and fancies cannot

be delinked, that too, at the stage when one of the claimant was

cross examined and certain admissions surfaced. Therefore the

order under challenge is wholly untenable and impermissible much

less perverse.

4. I have heard the counsel for the petitioner and appraised

the paper book and of the view that there is no force or merit.

5. On perusal of the cross examination, it is revealed that

much emphasis has been laid on behalf of the petitioner with

regard to the admission qua relationship of the employer and

employee that there was no relationship. But, the said statement

has been qualified by later statement, in the case of the claimant

there was a relationship of the employer. In my view the joint trial

in all the cases ought not to have been conducted at the request of

the claimants, but the wisdom dawned as each and independent

case of all the claimants claiming gratuity is to be examined on

preponderance of the evidence and the material on record. The

order segregating the trial in my view cannot be adverse to the

interest of the management and they will be at liberty to cross all

the claimants in the individual cases. No ground for interference is

made out.

The Writ Petition is dismissed.

Sd/-

AMIT RAWAL JUDGE csl

APPENDIX OF WP(C) 21558/2022

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE APPLICATION FILED BY THE L' RESPONDENT DATED 29.10.2018

Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER DATED 27.06.2019

Exhibit P3 TRUE COPY OF THE APPLICATION FILED BY THE 2ND RESPONDENT DATED 29.10.2018

Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 27.06.2019 SUBMITTED BY THE PETITIONER

Exhibit P5 TRUE COPY OF THE APPLICATION FILED BY THE 3RD RESPONDENT DATED 29.10.2018

Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER DATED 27.06.2019

Exhibit P7 TRUE COPY OF THE PETITION DATED 30.03.2021 FILED BY THE 1ª RESPONDENT

Exhibit P8 TRUE EXTRACT OF THE PROCEEDINGS OF THE CONTROLLING AUTHORITY DATED 31.03.2021

Exhibit P9 TRUE COPY OF THE AFFIDAVIT SUBMITTED IN LIEU OF CHIEF EXAMINATION ON 20.04.2021

Exhibit P10 TRUE COPY OF THE EVIDENCE IN CROSS EXAMINATION WITH TRANSLATION.

Exhibit P11 THE TRUE EXTRACT OF THE PROCEEDINGS OF THE CONTROLLING AUTHORITY DATED 18.01.2022 DELINKING THE JOINT TRIAL

Exhibit P12 TRUE COPY OF THE IA DATED 21.03.2022 TO REVIEW THE ORDER DELINKING THE JOINT TRIAL.

Exhibit P13 TRUE COPY OF THE ORDER DATED 01.06.2022 ISSUED BY THE 4TH RESPONDENT CONTROLLING AUTHORITY ALONG WITH ENGLISH TRANSLATION

RESPONDENTS' EXHIBITS :

NIL