Kerala High Court
Aluminium Fabricating Company, ... vs K.L.Michael on 23 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
WP(C) NO. 35881 OF 2017
PETITIONER/S:
ALUMINIUM FABRICATING COMPANY, REPRESENTED BY ITS
PROPRIETOR K.V.KOSHY
B3-INDUSTRIAL ESTATE, PALLURUTHY,COCHIN-682 006,
REPRESENTED BY ITS PROPRIETORK.V.KOSHY.
BY ADVS.
SRI.A.V.XAVIER
SRI.RINOY JOSEPH
RESPONDENT/S:
1 K.L.MICHAEL
KURISINKAL VEEDU, 15/1400,PALLURUTHY, KOCHI-6.
2 V.K.MANOHARAN
BLAPARAMBIL HOUSE, SDPY ROAD,COCHIN.682 006.
3 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY
ACT
AND THE DEPUTY LABOUR COMMISSIONER, ERNAKULAM,CIVIL
STATION, KAKKANAD, COCHIN.682 030.
4 THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY
ACT
1972 AND REGIONAL JOINT LABOUR COMMISSIONER,ERNAKULAM,
CIVIL STATION, KAKKANAD,COCHIN.682 030.
BY ADVS.
JUBYRAJ.A.P
JISHAMOL CLEETUS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 35881 OF 2017
2
JUDGMENT
Dated this the 23rd day of May, 2024
The challenge in this writ petition is against the impugned
order in Exhibit.P18 passed by the controlling authority under the
provisions of the Gratuity Act, 1972 dated 19.02.2016 in G.C No.
115/2008 and order in Ext.P19 passed by the appellate authority
under the payment of the Gratuity Act, 1972 ('the Act' for short) in
G.A No. 9/16.
2.The respondent Sri. K.L Michel, had filed an application
under Section 7(4)(b) of the payment of the Act claiming an
amount of Rs.11,347/- as gratuity from his employer, the petitioner
herein, along with an application for condoning the delay in filing
the application. The respondent, Sri. K.L Michel, joined in service
in the establishment of the petitioner on 14.11.1966 and after
rendering 22 years of continuous service, got retrenched from
service on 19.11.1988. Sri. Michel was working as fabricator and
last full months wages was Rs.893.90/-. He claimed an amount of
Rs.11,347/- as gratuity from the petitioner.
3.The notices as per Rule 11(1) of the Kerala payment of
Gratuity Rules 1973, were issued to the parties for entering
appearance. The petitioner herein filed a written statement and
WP(C) NO. 35881 OF 2017
raised the question of limitation arising that there was no
sufficient cause for condoning the delay of 20 years in preferring
the claim by the respondent for making a claim for payment of
Gratuity. Thereafter, the question of maintainability of application
was taken for consideration and an order dated 04.10.2013 was
passed as follows;
"On a plain reading on Section 7 (in particular Section 7(5) or
7(7) and Rule 18 of the Rules, it is obvious that legislative has not
expressly provided for requirement of filing an application for
condonation of delay. The Gratuity should be claimed by an
employee within a reasonable period, but at the same time the
provisions of the limitation Act would not be applicable as held by
several High courts for claiming the payment of gratuity."
4.Thereafter, the following issues were framed by the
controlling authority for determination;
"1) Whether the application is maintainable
under the provisions of the Payment of Gratuity
Act, 1972?
2) Whether the opposite party K.V Joshy,
Managing Partner, Aluminium Fabricating
Company, M.G Road, Ernakulam is liable to pay
gratuity for the entire services of the applicant
as claimed by him?
3) What is the eligible amount of gratuity?"
WP(C) NO. 35881 OF 2017
5.The controlling authority has held that as per Rule 10(11)
of the Rules of 1973, the application is maintainable as there was
long pending litigation since 1988 between the parties, before the
Labour court and High court with regard to the closure of the
establishment wherein the respondent was working and he was
retrenched and therefore, it was sufficient cause for condoning the
delay in filing the application. With respect to the issue No.2, it
was held that out of Rs.90,000/- was deposited by the management
towards the payment of wages to the retrenched employees, the
respondent got only for Rs.9000/- as his share and this amount was
not towards the gratuity amount but only towards an interim
relief.
6.The General Secretary of the Union, Sri. V. K Manoharan
was examined as AW2 before the Labour court would say that, an
amount of Rs.90,000/- deposited before the court was towards the
amount of retrenchment compensation. The amount of Rs.90,000/-
deposited by the court was as contemplated under Section 25F of
the Industrial Dispute Act and the said amount would not include
the payment of gratuity payable to the respondent workman or any
other workman, who were retrenched. Considering the 22 years of
service of the respondent and his pay of Rs. 893/-, it was held that
the respondent workman, Sri. K.L Michel, would be eligible to get
WP(C) NO. 35881 OF 2017
gratuity of Rs.11,346/- with interest at the rate of 10% from the
date on which the gratuity amount fell due till the date of payment.
The petitioner was directed to pay the gratuity along with interest,
within a period of 30 days of receipt of this order.
7.This order came to be challenged before the appellate
authority. However, the appellate authority has dismissed the
appeal by the impugned order dated 29.03.2017 in Ext.P19.
8.The only submission which was made by the learned
counsel for the petitioner was that Rs.90,000/- deposited by the
petitioner was towards full and final settlement of all dues of the
respondent and another workmen, who were retrenched from the
establishment of the petitioner. This amount of Rs. 90,000/-would
also include the gratuity amount payable to the retrenched
workman.
9.The retrenchment compensation is determined under
Section 25F of the Industrial Dispute Act. However, gratuity is to
be determined under the provisions of payment of the Gratuity
Act, 1972. Therefore, the retrenchment amount would not include
the gratuity amount payable to an employee and if the employer
has failed to make the payment of gratuity amount, it has to be
determined as per the provisions of Section 7(4) of the payment of
WP(C) NO. 35881 OF 2017
gratuity Act.
10.I do not find any substance in this submission of the
learned counsel for the petitioner that the retrenchment
compensation of Rs. 90,000/- in respect of eleven retrenched
employee would also include the gratuity amount, as the same was
deposited towards the full and final claim of retrenched employee.
In view thereof, I find no substance in this writ petition,
which is hereby dismissed.
Sd/-
DINESH KUMAR SINGH
JUDGE
SJ
WP(C) NO. 35881 OF 2017
APPENDIX OF WP(C) 35881/2017
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF THE CHALLAN NO.022243 DATED
07.07.1993 FOR DEPOSIST OF RS.90,000/-
WITH THIS HON'BLE COURT.
EXHIBIT P2 COPY OF THE CONSENT LETTER OF 7 WORKERS
INCLUDING 1ST RESPONDENT DATED 07.12.1993
TO THE 2ND RESPONDENT.
EXHIBIT P3 COPY OF THE UNION RESOLUTION DATED
30.12.93 AUTHORISING THE 2ND RESPONDENT
TO DISBURSE THE COURT DEPOSIT AMOUNT
AMONG THE WORKERS.
EXHIBIT P4 COPY OF THE CMP NO.7436/1994 DATED
21.03.94 TO WITHDRAW THE DEPOSIT AMOUNT.
EXHIBIT P5 COPY OF THE LETTER NO.B 5313/88 DATED
19.07.94 OF DISTRICT LABOUR OFFICER WITH
REQUEST TO PRODUCE RELEVANT RECORDS IN
SUPPORT OF THE DISBURSEMENT OF THE AMOUNT
TO WORKERS.
EXHIBIT P6 COPY OF THE REPLY WITH REF. AFC.4154/94
DATED 23.07.94 OF THE THEN PARTNER OF THE
PETITIONER ESTABLISHMENT TO THE EXHIBIT
P5 LETTER.
EXHIBIT P7 COPY OF THE LETTER OF THE PETITIONER
ESTABLISHMENT DATED 29.07.1994 IN
CONTINUATION OF EXHIBIT P6 INFORMING THE
DISTRICT LABOUR OFFICER THAT AMOUNT OF
RS.90,000/- DEPOSITED IN THE COURT IS
TOWARDS FULL AND FINAL SETTLEMENT OF ALL
THE AMOUNTS DUE TO THE WORKERS INVOLVED
IN THE CASE INCLUDING NOTICE PAY,
GRATUITY, COMPENSATION BONUS ETC.
EXHIBIT P8 COPY OF THE COMMON JUDGMENT IN
O.P.NOS.1120/2000 AND 8661/2000 DATED
28.06.2004.
EXHIBIT P9 COPY OF THE JUDGMENT OF DIVISION BENCH OF
THIS HON'BLE COURT DATED 01.02.2006 IN
UPHOLDING THE SINGLE BENCH DECISION.
EXHIBIT P10 COPY OF THE LETTER DATED 10.01.2008 OF
THE 1ST RESPONDENT SENT TO THE PETITIONER
ESTABLISHMENT WITH REFERENCE TO EXHIBIT
P8 JUDGMENT DATED 28.06.2004 CLAIMING AN
AMOUNT OF RS.1,21,283.15.
EXHIBIT P11 COPY OF THE COMPLAINT DATED 07.03.2008 OF
WP(C) NO. 35881 OF 2017
THE 1ST RESPONDENT FILED BEFORE THE
DISTRICT LABOUR OFFICER, ERNAKULAM
ALLEGING NON-RECEIPT OF ANY BENEFIT FROM
THE PETITIONER.
EXHIBIT P12 COPY OF THE LETTER OF THE LABOUR OFFICER
DATED 16.04.2008 TO THE PETITIONER
ESTABLISHMENT ENQUIRING ABOUT THE EXHIBIT
P11 COMPLAINT.
EXHIBIT P13 COPY OF THE DETAILED EXPLANATION OF THE
PETITIONER DATED 08.05.2008 GIVEN TO
EXHIBIT P12 WITH 4 ENCLOSURES THERETO.
EXHIBIT P14 COPY OF THE APPLICATION DATED 24.06.2008
FILED BY THE 1ST RESPONDENT BEFORE THE
3RD RESPONDENT, CONTROLLING AUTHORITY
UNDER THE PAYMENT OF GRATUITY ACT,
ERNAKULAM.
EXHIBIT P15 COPY OF THE PETITION DATED 24.06.08 FILED
BY THE 1ST RESPONDENT ALONG WITH THE
EXHIBIT P14 APPLICATION.
EXHIBIT P16 COPY OF LETTER OF THE 1ST RESPONDENT
DATED 21.01.2009, ADDRESSED TO THE DIST.
LABOUR OFFICER, EKM WITH PRAYER TO
CONDONE THE DELAY IN FILING APPLICATION
AND TO ACCEPT THE SAME.
EXHIBIT P17 COPY OF THE ORDER DATED 4TH OCTOBER 2013
OF THE 3RD RESPONDENT HOLDING THAT THE
EXHIBIT P14 APPLICATION IS MAINTAINABLE
BY REFERRING TO SECS. 7(5) & 7(7) AND
RULE 18.
EXHIBIT P18 COPY OF THE ORDER DATED 19.02.2016 OF THE
3RD RESPONDENT IN G.C.NO.115/2008
DIRECTING THE PETITIONER ESTABLISHMENT TO
PAY GRATUITY OF RS.11,346/- WITH 10%
INTEREST FROM THE DATE ON WHICH GRATUITY
AMOUNT FELL DUE.
EXHIBIT P19 COPY OF THE ORDER DATED 29.03.2017 IN
G.A.NO.9/2016 OF THE 4TH RESPONDENT WHICH
WAS SERVED TO THE PETITIONER
ESTABLISHMENT ON 21.10.2017.
