Kerala State Road Transport ... vs State Of Kerala
2024 Latest Caselaw 6193 Ker

Kerala High Court

Kerala State Road Transport ... vs State Of Kerala on 29 February, 2024

Author: P Gopinath

Bench: P Gopinath

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
   THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
                           WP(C) NO. 594 OF 2018
PETITIONER:

              KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM
              TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, REPRESENTED BY
              ITS MANAGING DIRECTOR.

              BY ADVS.
              SRI.P.C.CHACKO, SC, KERALA STATE ROAD TR
              P.C.SASIDHARAN



RESPONDENT/S:


     1        STATE OF KERALA
              REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR &
              REHABILITATION DEPARTMENT, GOVERNMENT
              SECRETARIAT,THIRUVANANTHAPURAM - 695 001.

     2        THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT
              DEPUTY LABOUR COMMISSIONER
              THIRUVANANTHAPURAM - 695 001.

     3        G. GANGADHARAN PILLAI
              PAVOOR VEEDU, UMMANNOOR P.O, KOLLAM DISTRICT - 691 520.

     4        G. MURALEEDHARAN PILLAI, MURALI BHAVAN, ARAMPUNNA, ELAMBAL
              P.O, KOLLAM DISTRICT - 691 322.

     5        G. RAJU, THUNDIL VEEDU, VILLOOR, VETTIKKAVALA P.O,

              KOLLAM DISTRICT - 691 538.

     6        K.C GEORGEKUTTY
              KIZHAKKEVILA PUTHEN VEEDU, KARANKODE P.O, CHATHANNOOR,
              KOLLAM DISTRICT - 691 579.

     7        K. SIVADASAN
              MOTTAKKUNNIL PLAVILA VEEDU(KAUSTUBHAM), MELILA EAST,MELILA
              P.O, KUNNIKKODE, KOLLAM DISTRICT - 691 508.

     8        C.P SIVAPRASAD, CHERUPALAKKOTTU VEEDU, PERINAD P.O, KOLLAM
              DISTRICT - 691 601.
 WP(C) NO. 594 OF 2018
                            2



    9     GIRIJA
          W/O. LATE SOMAN NAIR, 'SREENIVAS', VENKODE,
          CHERIYAKOLLA P.O, THIRUVANANTHAPURAM - 695 504.

   10     S. SATHYADAS
          S/O. SAMUEL, KALLUVILA PUTHEN VEEDU,
          PANACHAMOODU P.O, VELLARADA, NEYYATTINKARA,
          THIRUVANANTHAPURAM - 695 505.

   11     J. NELSON
          S/O. JOSEPH, KIZHAKKUMKARA PUTHEN VEEDU, MANOOR,
          DALUMUGHAM .O, THIRUVANANTHAPURAM - 695 125.

   12     V. SAMBASIVAN
          VARUVILA VEEDU, KARIMKULAM, PUTHIYATHURA P.O,
          THIRUVANANTHAPURAM - 695 526.

   13     K. SACHIDANANDAN NAIR
          MUDUPPURA THATTIL VEEDU, KARIMKULAM,
          PUTHIYATHURA P.O, THIRUVANANTHAPURAM - 695 526.

   14     P. NESAMANI
          ENNAVILA VEEDU, KAKKAVILA P.O,
          THIRUVANANTHAPURAM - 695 506.

   15     M. SREENIVASAN
          ELAVANKUZHY VEEDU, AVANAKUZHI, THANNIMOODU
          P.O,THIRUVANANTHAPURAM - 695 123.

   16     K. SIVASANKARA PILLAI
          S.N VIHAR, CHERIYAKONNI, THIRUVANANTHAPURAM -
          695 013.

   17     S. VIVEKANANDAN
          AMBALAMUTTAM, MNRA 20-G, KADAKAMPALLY ROAD,
          ANAYARA P.O, THIRUVANANTHAPURAM - 695 023.

   18     B. JAYAPALAN
          CHITHRANJALI, POONKULAM, VELLAYANI P.O,
          THIRUVANANTHAPURAM - 695 522.

   19     R. JANARDHANAN NAIR
          VEDARKONATH VEEDU, AJAYAPURAM, PANAYAMUTTAM P.O,
          PAZHAKUTTY, THIRUVANANTHAPURAM - 695 561.
 WP(C) NO. 594 OF 2018
                            3

   20     K. RAVEENDRAN
          SONIYA COTTAGE, DARSAN NAGAR, KUDAPPANAKUNNU
          P.O,THIRUVANANTHAPURAM - 695 043.

   21     B. BABU
          'RUDRAVEENA', KARIMPUVILA, SOUHRIDA GRAMAM,
          PARAVACHAMBALAM, NEMAM P.O, THIRUVANANTHAPURAM -
          695 020.

   22     T.A SURESH
          PALLITHARA HOUSE, JAYAPRAKASH LANE,
          KUDAPPANAKUNNU P.O,THIRUVANANTHAPURAM - 695 043.

   23     MOHAN RAJ S
          KAVINPURATH PUTHEN VEEDU, PALLICHAL, NARUVAMOODU
          P.O,THIRUVANANTHAPURAM - 695 528.

   24     B. RAVEENDRAN NAIR
          RAVEENDRAVILASOM, CHERIYAKONNI P.O,
          THIRUVANANTHAPURAM - 695 013.

   25     B. VIJAYAKUMARAN NAIR
          VIJI BHAVAN, VENKOOR, MALAYAM P.O,
          THIRUVANANTHAPURAM - 695 571.

   26     C. VIJAYAN CHETTIYAR
          THUNDU VILAKOM VEEDU, KIDARAKKUZHI, VENGANOOR
          P.O, THIRUVANANTHAPURAM - 695 523.

   27     S. BABU
          PAZHAVILA VEEDU, PACHALOOR P.O,
          THIRUVANANTHAPURAM - 695 027.

   28     FRANCIS XAVIOUR
          KEERTHI HOUSE, VIZHAVOOR, MALAYAM P.O,
          THIRUVANANTHAPURAM - 695 511.

   29     P. RAMACHANDRAN NAIR
          KONATHU VEEDU, PAMAMKODE, ESTATE P.O,
          THIRUVANANTHAPURAM - 695 019.

   30     R. CHANDRASENAN NAIR
          LEKSHMY NIVAS, PERUMTHOTTAM HOUSE, ESTAE P.O,
          POOZHIKUNNU, THIRUVANANTHAPURAM - 695 019.

   31     V. JAYACHANDRAN
          ASHA BHAVAN, ARASUMMOODU, KULATHOOR P.O,
          THIRUVANANTHAPURAM - 695 583.
 WP(C) NO. 594 OF 2018
                            4

   32     B. SUDARSANA BABU
          THOPPIL VEEDU, KULATHOOR P.O, KAZHAKKOOTTAM,
          THIRUVANANTHAPURAM - 695 583.

   33     V. RADHAKRISHNAN
          'SARANG', JEEVAN NAGAR, PATTOM P.O, PRA -
          44,THIRUVANANTHAPURAM.

   34     C. HRISHIKESAN NAIR
          SIVA PRABHA, MANJAMCODE, NEDUMON, KALLAYAM
          P.O,THIRUVANANTHAPURAM - 695 043.

   35     G. MOHANA PANICKER
          M.R NIVAS, THUNDATHIL P.O, KARYAVATTOM,
          THIRUVANANTHAPURAM - 695 581.

   36     J. RAMACHANDRAN
          S/O. JANARDHANAN PILLAI T.C 52/804, VILAYIL
          MELETHATTU PUTHEN VEEDU, POOZHIKUNNU, INDUSTRIAL
          ESTATE P.O, THIRUVANANTHAPURAM - 695 019.

   37     P. RADHAKRISHNAN
          RENJANA NIVAS, T.C 30/1855-5, PETTAH P.O,
          MOONNAMMANAKKAL,THIRUVANANTHAPURAM DISTRICT.

   38     B. BHUVANENDRAN NAIR
          NEDUMPURATH VEEDU, AYRA,KOLLA, PANAVOOR
          P.O,NEDUMANGAD, THIRUVANANTHAPURAM - 695 568.

   39     P. SUDARSANAN
          S.S BHAVAN, ERINADU, PANAVOOR P.O,
          THIRUVANANTHAPURAM - 695 563.

   40     N. RAJAGOPALAN NAIR
          KRISHNAVILASOM, MEMALA, VITHURA P.O,
          THIRUVANANTHAPURAM - 695 551.

   41     G.SUDHAKARAN NAIR
          SREE GANGA NILAYAM, KODOOR, VENCODE
          P.O,THIRUVANANTHAPURAM - 695 028.

   42     K. HARIHARA KUMAR
          SARADA BHAVAN, GNRA - 12, KIZHAKKEKARA,
          KODUNGANNOOR P.O, VATTIYOORKAVU,
          THIRUVANANTHAPURAM - 695 013.

   43     R. RAVI, ISWARIYA, THENOOR P.O,
          THIRUVANANTHAPURAM - 695 563.
 WP(C) NO. 594 OF 2018
                            5

   44     S. SURENDRAN
          S.R NIVAS, VILAVOORKAL, MALAYINKEEZHU P.O,
          THIRUVANANTHAPURAM - 695 571.

   45     D. MOHAN
          KENIYIL KULAVARAMBU VEEDU, T.C 11/1908,
          NANTHANCODE,KOWDIAR P.O,THIRUVANANTHAPURAM - 695
          003.

   46     P. MAHAVAN
          S/O. PODIKUTTY,MELE POZHINJANVILA VEEDU, KARODE,
          KAKKAVILA P.O,THIRUVANANTHAPURAM - 695 506.

   47     CHRISTA KUMAR
          KALLUVILA PUTHEN VEEDU, AVANAKUZHI, NELLIMOODU
          P.O, THIRUVANANTHAPURAM - 695 524.

   48     V. SREEKANTAN NAIR
          GEETHA BHAVAN, MEMALA P.O, VITHURA,
          THIRUVANANTHAPURAM - 695 551.

   49     K.V VIJAYAKUMARAN NAIR
          SREESADANAM, ADIPARAMPU, MARUTHAMALA P.O,
          VITHURA,THIRUVANANTHAPURAM - 695 551.

   50     C. MANI
          KAIRALI BHAVAN, VAYYET, KATTUVILAKOM,
          POKOTTUKONAM,VENJARAMOODU, THIRUVANANTHAPURAM -
          695 607.

   51     SYAMALA V
          W/O. LATE D.V SURENDRAN, ASWATHY BHAVAN,
          KUZHIVILA, OTTASEKHARAMANGALAM,
          THIRUVANANTHAPURAM - 695 125.

   52     A SUBRAMONIAN ACHARY
          NEDUMKOTTUVILA PUTHEN VEEDU, KOLIYOOR, MUTTAKKAD
          P.O, THIRUVANANTHAPURAM - 695 523.

   53     B. RAMACHANDRAN
          KIZHAKKETHIL PUTHEN VEEDU, THEEPUKAL, POTHENCODE
          P.O,THIRUVANANTHAPURAM - 695 584

   54     D. JAKUMAR
          V.J BHAVAN, SAGARA, PATHIRAPALLY, KUDAPPANAKUNNU
          P.O,THIRUVANANTHAPURAM DISTRICT - 695 043.
 WP(C) NO. 594 OF 2018
                                  6

   55       K. RADHAKRISHNAN
            'SREYAS', A-20, KANAKA NAGAR, THIRUVANANTHAPURAM
            DISTRICT.

   56       G. VELAPPAN
            A.V BHAVAN, MUKKAMPALAVILA VEEDU, VENGANOOR P.O,
            THIRUVANANTHAPURAM DISTRICT.

   57       R.S NANDAKUMARAN NAIR
            'SARANIKA', MITHRUMALA P.O, THIRUVANANTHAPURAM -
            695 610..

            BY ADVS.
            SRI. VENUGOPAL V., GOVERNMENT PLEADER
            SRI.K.P.RAJEEVAN
            SRI.N.SASIDHARAN UNNITHAN




        THIS   WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION      ON   29.02.2024,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 594 OF 2018
                              7

                        JUDGMENT

This writ petition has been filed by the Kerala State

Road Transport Corporation (KSRTC) challenging Ext.P5

order of Government of Kerala, Labour and Skill (D)

Department and Ext.P9 order issued by the Controlling

Authority, Thiruvananthapuram, under the Payment of

Gratuity Act, 1972 (hereinafter referred to as 'the 1972 Act')

adjudicating the claims of the party respondents to gratuity

under the provisions of the 1972 Act. The brief facts are as

follows:-

2. By Ext.P1 notification dated 04.04.2013, the

Government of Kerala issued an order in terms of the

provisions contained in sub-sections (1) and (3) of Section 5

of the 1972 Act exempting the employees of the KSRTC from

the provisions of the 1972 Act on the ground that the

employees are obtaining better terms under the Kerala

Service Rules. The persons like the party respondents, who

were rendering service as empanelled conductors and drivers,

are not part of the regular establishment of the KSRTC and

they are not entitled to pension and DCRG or any other

benefits in terms of the provisions contained in the Kerala WP(C) NO. 594 OF 2018

Service Rules. Therefore, the question arose as to whether in

respect of such persons, the provisions of the 1972 Act would

continue to operate. This Court at the instance of some of the

affected parties, directed the Government to take a decision in

the matter. By Ext.P5 order dated 12.05.2015, the

Government in the Labour and Skills (D) Department held

that empanelled conductors and drivers would continue to be

entitled to the benefits under the 1972 Act, subject to the

condition that they satisfy the conditions for payment of

gratuity in terms of the provisions contained in the 1972 Act.

Following Ext.P5 Government Order, the party respondents

raised a claim before the controlling authority, which was

adjudicated in terms of Ext.P9 finding each of them entitled

to gratuity in the amounts set out in that order. The order is

challenged principally on two grounds. It is submitted that

Ext.P5 Government order holding that the persons like the

party respondents are entitled to gratuity is not sustainable in

law as an order in terms of the provisions contained in

Section 5 of the 1972 Act should have been issued as a

statutory order and should have been published in the gazette

as was done in the case of Ext.P1. Secondly, it is submitted WP(C) NO. 594 OF 2018

that without considering the individual cases to determine

whether the party respondents are entitled to payment of

gratuity, the controlling authority has passed an omnibus

order finding that the party respondents are entitled to

payment of gratuity. It is submitted that even in terms of

Ext.P5 order, persons like the party respondents may be

entitled to gratuity only if they satisfy the conditions of

eligibility and there could not have been an omnibus order

finding that the party respondents were entitled to payment

of gratuity without first establishing with reference to the

service details of each one of them that they were entitled to

gratuity. It is specifically pointed out that in Ext.P9 order, the

controlling authority has specifically found that at least some

among the claimants have not completed 240 days of service

in a year and still proceeded to hold that such persons are

entitled to gratuity. It is submitted that in terms of the

Division Bench judgment of this Court in Velukutty Achary v.

Harrisons Malayalam Ltd. [1992 (2) KLT 622], the party

respondents were not entitled to payment of gratuity.

3. The learned Government Pleader appearing for

the official respondents would submit that the contention WP(C) NO. 594 OF 2018

taken on behalf of the petitioner that Ext.P5 order should

have been issued as a statutory order by publishing the same

in the gazette, cannot be accepted. It is submitted that Ext.P5

can only be treated as an order clarifying that the exemption

in terms of Ext.P1 order is only in respect of regular

employees of the KSRTC, who are entitled to pension,

gratuity etc in terms of the provisions contained in the Kerala

Service Rules. It is submitted that, in such circumstances,

Ext.P5 Government Order cannot be said to be illegal in any

manner.

4. The learned counsel appearing for the party

respondents would submit that there is no illegality

whatsoever in Ext.P9 order issued by the controlling

authority. It is submitted that if the petitioner was in any

manner aggrieved by the order of the controlling authority, it

should have approached the appellate authority in terms of

the provisions contained in the 1972 Act instead of filing a

writ petition under Article 226 of the Constitution of India. It

is submitted that the argument of the learned counsel for the

petitioner that Ext.P9 order is an omnibus consideration of

the eligibility, cannot be accepted. It is pointed out that each WP(C) NO. 594 OF 2018

of the party respondents had filed separate applications

giving details of their service and it is after perusing these

documents that the controlling authority had come to the

conclusion that the party respondents were entitled to

payment of gratuity.

5. Having heard the learned counsel appearing for

the petitioner, the learned Government Pleader and the

learned counsel appearing for the party respondents, I am of

the view that the petitioner has not made out any case for

interference with Ext.P5 order of the Government. As rightly

pointed out by the learned Government Pleader, Ext.P5 order

is only an order which clarifies Ext.P1 order of exemption

from the provisions of the 1972 Act. It is evident from the

explanatory note to Ext.P1 that it will apply only to regular

employees of the KSRTC, who are entitled to pension, DCRG

and other benefits under the Kerala Service Rules. Therefore,

the fact that Ext.P5 is not issued as a statutory order under

the 1972 Act does not affect its validity. Therefore, the

challenge to Ext.P5 Government Order is rejected. Coming to

the validity of Ext.P9, I am constrained to observe that the

controlling authority cannot in an omnibus manner WP(C) NO. 594 OF 2018

adjudicate the eligibility of the party respondents to gratuity.

Considering the nature of service rendered by the empanelled

conductors / drivers, the controlling authority will have to

determine, with reference to the service details of each of the

party respondents, as to whether they had qualifying service

or eligible service for the purposes of payment of gratuity

under the 1972 Act. A reading of Ext.P9 does not show that

the controlling authority had considered the matter with

reference to the individual service details of each of the party

respondents. For this reason, Ext.P9 is to be set aside. The

contention of the learned counsel appearing for the party

respondents that Ext.P9 ought to have been challenged by

filing a statutory appeal also does not appeal to this Court for

more than one reason. It is settled law that the rule of

alternate remedy is only a rule of discretion and does not

affect the jurisdiction of this Court under Article 226 of the

Constitution of India. Further, after having admitted this writ

petition in the year 2018, it would not be appropriate for this

Court to now relegate the petitioner to the alternate remedy,

especially after having found that Ext.P9 order cannot be

sustained as it is an omnibus order, which does not determine WP(C) NO. 594 OF 2018

the eligibility of the individual party respondents to the

payment of gratuity. Therefore, the writ petition is allowed to

the extent of setting aside Ext.P9 order. The claims of the

party respondents under the 1972 Act shall stand restored to

the file of the 2nd respondent. The 2nd respondent shall

adjudicate the claims of the party respondents individually

with notice to the petitioner and to the individual claimants.

The challenge to Ext.P5 order is repelled.

The writ petition is disposed of accordingly.

Sd/-

GOPINATH P. JUDGE DK WP(C) NO. 594 OF 2018

APPENDIX OF WP(C) 594/2018

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY THE NOTIFICATION NO.G.O(P)NO. 45/2013/LBR DATED 4.4.2013

EXHIBIT P2 TRUE COPY OF EXT.P7 REPRESENTATION DATED 5.9.2014 IN W.P(C) NO.

25396/2014.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 30.9.2014 IN W.P(C) NO.25396/2014.

EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 23.10.2014 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF G.O(MS) NO.53/2015/LBR DATED 12.5.2015.

EXHIBIT P6 TRUE COPY OF G.C NO.78/2013 FILED BY THE 9TH RESPONDENT BEFORE THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF G.C NO.79/2013 FILED BY THE 10TH RESPONDENT BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED 30.5.2016 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN G.C NO.78/2013.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 29.4.2017 PASSED BY THE 2ND RESPONDENT IN G.C NO.78/2013 AND CONNECTED CASES.

WP(C) NO. 594 OF 2018

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 25.4.2017 IN G.C NO. 22/2016 PASSED BY THE DEPUTY LABOUR COMMISSIONER, PALAKKAD.

EXHIBIT P11        TRUE COPY OF ORDER DATED 25.4.2017
                   IN G.C NO. 29/2016 PASSED BY THE
                   DEPUTY     LABOUR    COMMISSIONER,
                   PALAKKAD.

RESPONDENT EXHIBITS

EXHIBIT R3(a)      TRUE   COPY   OF    THE     ATTENDANCE
                   STATEMENT OF THE 3RD        RESPONDENT
                   ISSUED FROM THE KSRTC

EXHIBIT R3(b)      TRUE COPY OF THE COMMON JUDGMENT OF
                   THIS    HONOURABLE    COURT   DATED


EXHIBIT R3(c)      TRUE COPY OF THE COMMON ORDER DATED
                   6.5.2014 OF THE HON'BLE SUPREME
                   COURT IN SLP NOS.11379-11385/2014

EXHIBIT R3(d)      TRUE COPY OF THE ORDER DATED 31.
                   5.2014 ISSUED FROM THE KSRTC

EXHIBIT R3(e)      TRUE   COPY   OF    THE   ORDER   DATED
                   12.11.2015     OF     THE     APPELLATE
                   AUTHORITY

EXHIBIT R3(f)      TRUE COPY OF THE JUDGMENT REPORTED
                   IN 1992(2)KLT 622

EXHIBIT R3(g)      TRUE COPY OF THE JUDGMENT REPORTED
                   IN 2001-(II)-LLJ 520

EXHIBIT R3(h)      TRUE COPY OF THE REPORTED IN 2015
                   LLR 610

EXHIBIT R3(i)      TRUE   COPY   OF    THE   ATTENDANCE
                   STATEMENT ISSUED FROM THE KSRTC IN
                   RESPECT OF RESPONDENT NO.56
 WP(C) NO. 594 OF 2018


EXHIBIT R3(j)      TRUE COPY OF THE RELEVANT PAGES OF
                   THE PAY REVISION AGREEMENT 2012
                   ISSUED BY THE KSRTC

EXHIBIT R3(k)      TRUE COPY OF THE JUDGMENT REPORTED
                   IN 2017 LLR 943

EXHIBIT R3(l)      TRUE COPY OF THE JUDGMENT REPORTED
                   IN 2017 LLR 1058