Leelakutty K.N. @ Leela Mohan vs The Joint Registrar Of ...
2022 Latest Caselaw 5643 Ker

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

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

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.

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

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