Kerala High Court
Kerala Agricultural University, ... vs The Controlling Authority, Under ... on 7 June, 2024
WP(C) No.10195/2018 1 / 16
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
Friday, the 7th day of June 2024 / 17th Jyaishta, 1946
WP(C) NO. 10195 OF 2018 (Y)
PETITIONER:
KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA P.O.,
THRISSUR, PIN - 680 656, REPRESENTED BY ITS REGISTRAR.
RESPONDENTS:
1. THE CONTROLLING AUTHORITY, UNDER PAYMENT OF GRATUITY ACT 1972
(DY.LABOUR COMMISSIONER), THRISSUR - 680 001.
2. SRI.I.K.VELUKUTTY, S/O.KUNJAN, IRINGALAKKUDAKKARAN HOUSE,
PATTALAKKUNNU ROAD, MANNUTHY P.O., THRISSUR - 680 651.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay the operation and all further proceedings in pursuance
to Ext.P4 order of the 1st respondent pending disposal of this Writ
Petition.
This petition again coming on for orders upon perusing the
petition and the affidavit filed in support of WP(C) and this Court's
order dated 21.05.2024 and upon hearing the arguments of SRI.ROBSON
PAUL, STANDING COUNSEL for the petitioner, GOVERNMENT PLEADER for R1,
M/S.ASHWIN SETHUMADHAVAN, A.JAYASANKAR, MANU GOVIND, B.MEERA, RAHUL
SURENDRAN & S.SABARINADH, Advocates for R2, the court passed the
following:
P.T.O.
WP(C) No.10195/2018 2 / 16
EASWARAN S., J.
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WP(C) No.10195 of 2018
-------------------------------------
Dated this the 7th day of June, 2024
ORDER
The Kerala Agricultural University is before this Court in
the writ petition challenging an order passed by the Controlling
Authority under the Payment of Gratuity Act, 1972, wherein the
claim of the 2nd respondent was upheld and the University was
directed to pay a sum of Rs.98,963/- with interest @ 10% per
annum from 27.12.2012 till the date of payment.
2. The 2nd respondent claimed that he was employed as
a worker in the hostel mess run by the University at the hostel
provided by them for the students. According to the 2 nd
respondent, the University took a decision on 03.08.2005 to
give an opportunity to the mess workers who have not
completed the age of 60 years as on 13.01.2005 to become
casual labourars of the University and accordingly, he continued
from 01.09.2005 to 27.11.2012 and the University had already
paid gratuity of Rs.51,308/-. On behalf of the 2 nd respondent,
Annexures-A1 to Annexure-A7 documents were produced as
evidence and considering the contentions raised by the 2 nd
respondent, by order dated 09.01.2018 marked as Ext.P4, the
1st respondent ordered the petitioner-University to pay a sum
of Rs.98,963/- towards gratuity with interest @ 10% per
annum from 27.12.2012 till the date of payment.
3. I have heard Sri.Robson Paul, learned counsel
appearing for the petitioner-University, and Sri.Ashwin
Sethumadhavan, learned counsel appearing for the 2 nd
respondent.
4. The learned counsel for the petitioner contended that
the 2nd respondent, who was employed as a mess worker in the
hostel mess cannot be considered as a labourer of the
University and therefore, they are not liable to pay gratuity. He
would rely on the judgment of a Division Bench of this Court in
W.A.No.1225/1994 (Ext.P3) to contend that there is a categoric
finding of the Division Bench regarding the status of a mess
worker in a hostel mess run by the Kerala Agricultural
University. Therefore, according to the learned counsel, the 1 st
respondent controlling authority went wrong in allowing the
claim of the 2nd respondent.
5. On the other hand, learned counsel appearing for the
2nd respondent, Sri.Ashwin Sethumadhavan, would contend
that the question as to whether a mess worker in a hostel run
by a University is entitled to gratuity is no longer res integra, in
view of the judgment of the Hon'ble Supreme Court in
G.B.Pant University of Agriculture & Technology,
Pantnagar, Nainital v. State of U.P. and Others [(2000) 7
SCC 109]. He would further contend that in a similar case, a
learned Single Judge of this Court in the judgment in WP(C)
No.23586/2005 dated 26.5.2016 has held that the workers in
the hostel mess are ascertained as employees and are entitled
to the benefit under the Employees Provident Fund Act. He
would further contend that point of law answered by the
Division Bench in Ext.P3 judgment cannot be considered as a
good law in the light of the judgment of the Supreme Court in
G.B.Pant University of Agriculture & Technology (supra).
6. In reply, the learned counsel for the petitioner-
University would contend that the judgment of the Supreme
Court cannot be applied universally and the same was rendered
in the peculiar facts and circumstances and also especially
analyzing the various provisions of the Hostel and Cafeteria
Regulations of Gobind Ballabh Pant University framed under the
various Regulations of the Act. He would further contend that
unlike the statutory regulations, which were considered by the
Supreme Court, on facts of this case, there are no such
statutory regulations. On the other hand, there are only
administrative instructions. He would refer to the Rules of
Hostels Attached to the Colleges/Institutions under the
University, which were promulgated by the petitioner-University
by order No.Acd.A.3-79731/78/KAU/D.Dis dated 11.12.1980.
He would further extensively rely on those instructions/Rules to
contend that the mess workers would never be considered to
be the labourers of the University.
7. At one hand, the petitioner contends placing reliance
on Ext.P3 judgment of the Division Bench, wherein it has been
categorically held that the workers of the hostel mess are not
labourers of the University. On the other hand, the said
argument is sought to be countered by the learned counsel for
the 2nd respondent placing reliance on the judgment of the
Supreme Court.
8. When this Court analyses the arguments of the
learned counsel for the parties closely, it becomes evident that
the appointment of mess workers in the hostel is governed by
the Rules of Hostels Attached to the Colleges/Institutions under
the University. Reference was invited to clause 10 of the said
Rules, the relevant portion of which is extracted hereunder:
"10. Hostel Mess
xxx xxx xxx
(c) The 'Mess Fund' shall be used for running the mess.
xxx xxx xxx
(f) The residents of the hostel are permitted to run their
own mess in the hostel on no loss no profit basis. The
management of the mess shall be the responsibility of the
students, subject to control of the Assistant Warden.
(g) The hostel mess shall be managed by a Mess
Committee consisting of student representatives. The Mess
Committee shall be elected every month by the members of
the hostel. The number of the Mess Committee shall be
fixed as 5 of which one shall be the Mess Secretary. The
Mess Committee shall hold office for a period of one month
only.
(h) The mess account is a private account operated by the
Assistant Warden and Mess Committee. The Mess
Committee shall satisfy themselves with the correctness of
accounting. The accounts shall be maintained by the
Assistant Warden."
9. Clauses 12 defines "Mess servants", which is
extracted as follows:
"12. Mess servants:
a) The mess committee shall be the appointing
authority for hostel mess servants subject to the approval of
the Warden on the recommendations of the Assistant
Warden. The terms and conditions may be as laid down by
the mess committee from time to time. The term of
appointment of all mess servants shall not exceed one
academic year that is from the reopening of the
college/institution to the closure of the college/institution
after the University examinations. The mess servants shall
remain automatically discharged from service at the time of
annual closure of the College/Institution.
b) The Assistant Warden shall be responsible for the
maintenance of proper discipline and good conduct among
the mess servants. The Mess Committee shall be competent
to recommend punishment including suspension or removal
from service of any Mess Servant, with reasons thereof.
Such disciplinary action against mess servants shall be
recommended by the Assistant Warden of the concerned
hostel to Warden for further action. The Warden shall be the
disciplinary authority in all such cases."
10. On a cumulative reading of clauses 10 and 12, it
becomes evident that the management of the hostel mess is by
a Mess Committee consisting of students' representatives which
shall be elected every month. Turning to clause 10(h), it is
evident that the mess account is a private account operated by
the Assistant Warden and the Mess Committee. No doubt,
turning to clause 12, the Assistant Warden of the hostel, who is
an employee of the University, is vested with the responsibility
for maintenance of proper discipline and good conduct among
the mess servants. Under clause 13, which has a non-obstante
clause, which gives absolute power to the warden to discharge
any of the mess servants if he is satisfied that the discipline,
cleanliness and/or conduct of the mess servants are not
satisfactory.
11. The Hon'ble Supreme Court in G.B.Pant (supra) was
called upon to consider Regulations 48, 49, 64, 65, 67 to 69,
78, 86, 92 and 93 framed under the U.P. Agricultural University
Act. Paragraph No.8 of the said judgment reads as under:
"8. Reliance by Mr. Trivedi on Regulations 48, 49,
64, 65, 67, 68, 69, 78, 86, 92 and 93 though apparently
may have some relevance pertaining to the issue, but
reading the Regulations as a whole, it cannot be doubted
that the same are only framed for moral, persuasive and
democratic reasons so as to involve the students and to
elicit their views, suggestions and ensure their participation
in mutual exercise of co-operation. We, however, feel it
expedient to quote herein below a few of the Regulations
which would unmistakably depict total control of the
University in the matter of running and maintenance of the
Cafeteria and the same being as below:
"54. It shall be compulsory for each student residing in a
hostel to join the cafeteria of that hostel unless otherwise
permitted by the Chief Warden of the hostel on the
request of the guardian of the student, and the
recommendation of the Warden of that hostel to take
food with his guardian. In that event the Chief Warden
shall inform all officers concerned of the University, for
example, Comptroller, Dean Student Welfare, Hostel
Warden, etc.
76. The Comptroller of the University shall operate the
'G.B.P.U.A. Food Services Account', issue cheques,
maintain the cash book and classified accounts
(unitwise/head wise) of income and expenditure as well
as students' ledgers in his office like other accounts of
the University. In addition to arranging timely payment
of the Cafeteria bills duly authorised by the Warden and
ensuring recovery of all cafeteria dues from the students
and staff members concerned the Comptroller shall be
responsible for getting the Cafeteria accounts audited
cent-percent regularly.
80. The accounts Clerk-cum-Storekeeper of the hostel
cafeteria shall be responsible for the proper and up-to-
date maintenance of the cafeteria stores, stores records
and account books including daily-menu book, cash
book, consumable stock book, daily preparation and
sales register, cash credit and coupon transaction
register, store day book (Roznamcha) indents, challans,
bill register, daily sales sheets, cash-memo book, bill
book etc. under the direct supervision, control and
guidance of the Hostel Manager. His functions and duties
shall be as follows:
* * *
82. The other cafeteria staff including Tea Man, Head-
Cook, Bearers, etc. shall work in accordance with the
instructions of the Hostel Manager/Warden. The duties of
these staff members shall be defined/prescribed by the
Warden of the hostel.
88. The accounts of the Warden's Office (bills and
vouchers) shall be taken by the Hostel Manager to the
Office of the Comptroller for scrutiny and checking.
92. The entire Cafeteria staff shall work under the direct
supervision of the Warden/Assistant Warden in
accordance with the advise of the Food Committee and
under the administrative control of the Chief Warden. All
cases of appointments, termination of service and other
punishments and promotions, rewards etc. shall be dealt
with by the Chief Warden in consultation with the Warden
and the Food Committee.
93. (i) All the appointment of Cafeteria staff would be
made by the Food Committee of the hostel with the
approval of the Chief Warden.
(ii) The leave, annual increments, uniform, travelling
allowance etc. to the cafeteria staff shall be governed in
accordance with the policies laid down by the Central
Food Committee.
106. (i) The bills/vouchers/imprest/temporary advance
adjustment accounts and monthly food accounts duly
passed by the respective Food Secretary/Chairman, Food
Committee to their entire satisfaction and entered in the
Food Provision Control Registrar shall be sent to
Comptroller directly for the scrutiny and
payment/adjustment/recovery of dues expeditiously. The
Wardens, Hostel Managers and the respective Food
Secretaries will be fully responsible for making stock
entries of all purchases made in respect of their hostels.
The payment will be made only if a certificate in the
following form is given on the bill (rubber stamp for
which could be got made for convenience):
'Certified that the goods as per
specification have been received and
entered in the stock books.'
(ii) The Warden shall have full financial and
administrative control of their hostel cafeteria funds and
be responsible for up-to-date maintenance of accounts
books and submission of bills/vouchers/adjustment
accounts, the preparation of monthly food accounts and
submission of monthly recovery lists accurately within
time and according to the procedure prescribed in the
Hostel Cafeteria Regulations. The Wardens/Hostel
Managers/Food Secretary concerned will be fully
responsible for checking of rates charged in the bills and
payments will be authorised on the basis of the
certification.
107. (i) Similarly, the preparation of vouchers for
adjustment account of temporary advances and
recoupment of the permanent advance shall be done by
the Accounts Clerk-Cum-Store Keeper/Hostel Manager
which shall be checked and signed by the Food
Secretary, Warden expeditiously and the Warden shall
ensure that no cash is drawn and retained by the hostel
cafeteria when it is not required for its immediate
expenditure.
* * *
109. The hostel cafeteria's Accounts Clerk-cum-
Storekeeper shall be responsible to Warden/Chief
Warden on the one hand and on the other be also
responsible to the Comptroller for correctness of the
Cafeteria accounts.""
12. The Hon'ble Apex Court described the various
regulations and formed an opinion that these Regulations are
statutory in nature. It was further held that the Regulations
show an explicit control of the University over the affairs of the
management of the mess run in the hostel conducted by the
University. Therefore, ultimately, it was found that in view of
deep and pervasive control of the University over the affairs of
the hostel run by the University, it was held that the workers
employed in the mess are definitely the employees of the
University.
13. Coming to the unreported judgment in WP(C)
No.23586/2005 dated 26.5.2016, I find that the relevant rules
governing the management of the hostel and appointment of
mess servants were not brought to the notice of the learned
Single Judge. On contrary, the Division Bench of this Court by
judgment dated 1.11.1994 proceeded to hold that the mess
servants of the hostel are not employees of the University. A
perusal of the judgment would show that the Rules which have
been extracted above which govern the management of the
hostel were specifically referred to and clause 12(b) was
specifically taken notice of by the Division Bench. It is also
pertinent to note that the Division Bench took notice of the fact
that Rule 12 of the Rules relating to the hostels specifically
provided that the mess servants would automatically
discharged on the closure of the colleges for vacation. On a
cumulative consideration of the entire Rules, the Division Bench
formed a categoric opinion that the mess servants are not
employees of the Kerala Agricultural University nor are they
labourers of the Kerala Agricultural University.
14. When this Court analyses the Judgment of the
learned Single Judge of this Court in WP(C) No.23586/2005
dated 26.5.2016 it becomes evident that the difference in the
nature of the rules considered by the Supreme Court and the
one considered by the Division Bench in Ext.P3 was never
appraised and hence in my respectfully view, the said decision
requires reconsideration.
15. The law relating to precedents being quite settled and
that this Court is bound by the view taken by the co-ordinate
bench, and that the judicial discipline demands in case of
difference in opinion, if any, should be necessarily resolved by a
larger bench. Hence, keeping conformity with judicial discipline,
this Court deem it appropriate to refer the matter to the
Division Bench to resolve the conflict.
16. Hence, Registry is directed to place this matter before
the Hon'ble the Chief Justice for placing this writ petition before
a Division Bench to have an authoritative pronouncement on
the following questions:
(a) Whether the judgment of this Court in WP(C)
No.23586/2005 dated 26.5.2016 lays down the correct
proposition of law in view of the judgment of Division
Bench in Sathikumar P and others Vs. Vice
Chancellor, Agricultural University and another
[ WA No 1225 of 1994]?
(b) Whether the judgment of the Division Bench in
Sathikumar P and others Vs Vice Chancellor,
Agricultural University and another- WA No 1225
of 1994 requires reconsideration in light of the decision
of the Supreme Court in G.B.Pant University of
Agriculture & Technology, Pantnagar, Nainital v.
State of U.P. and Others [(2000) 7 SCC 109]?
(c) Whether the Hostel Mess Rules framed by the
Kerala Agriculture university do have a statutory flavour
or the same is merely an administrative instruction?
Sd/-
EASWARAN S.
JUDGE
jg
07-06-2024 /True Copy/ Assistant Registrar
APPENDIX OF WP(C) 10195/2018
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 1-11-94 IN
W.A.NO.1225/94 OF HON'BLE HIGH COURT OF KERALA.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 9-1-2018 IN GC 5/2014 BY
THE 1ST RESPONDENT.
07-06-2024 /True Copy/ Assistant Registrar
