Kerala High Court
Express Publications (Madurai) ... vs Shri. G. Govindapillai on 1 November, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
2024:KER:80873
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
WP(C) NO. 26380 OF 2023
PETITIONER:
EXPRESS PUBLICATIONS (MADURAI) LIMITED,
EXPRESS HOUSE, KALOOR,
KOCHI - 682017,
REPRESENTED BY ITS GENERAL MANAGER
MR. P VISHNUKUMAR
BY ADVS.
SRI.BENNY P.THOMAS, SC, BPCL
D.PREM KAMATH
TOM THOMAS (KAKKUZHIYIL)
ABEL TOM BENNY
AARON ZACHARIAS BENNY
BHARATH NAIR
PRAISY THOMAS
AMRUTHA SELVAM
RESPONDENTS:
1 SRI.G.GOVINDAPILLAI,
S/O. LATE N GOVINDAPILLAI,
G1, JAISURYA BUILDING NO.113/65,
VELLALA STREET,
KODAMBAKKAM, CHENNAI,
PIN - 600024
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W.P.(C) No.26380/2023
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2 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF
GRATUITY ACT,
ASSISTANT LABOUR COMMISSIONER (CENTRAL),
OLIMUGHAL, KAKKANAD,
COCHIN, PIN - 682030
3 THE APPELLATE AUTHORITY UNDER THE PAYMENT OF
GRATUITY ACT,
DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),
OLIMUGHAL, KAKKANAD,
COCHIN, PIN - 682030
BY SHRI. G. GOVINDAPILLAI,(Party-In-Person)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.10.2024, THE COURT ON 01.11.2024 DELIVERED THE
FOLLOWING:
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W.P.(C) No.26380/2023
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N. NAGARESH, J.
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W.P.(C) No.26380 of 2023
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Dated this the 1st day of November, 2024
JUDGMENT
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The petitioner, who is engaged in printing and
publication of newspapers, magazines, etc., is before this
Court aggrieved by Ext.P6 order of the 2 nd respondent-
Controlling Authority and Ext.P8 order of the Appellate
Authority under the Payment of Gratuity Act.
2. The petitioner states that the 1 st respondent was an
employee of the petitioner-Company. He joined as Junior
Clerk on 18.06.1984. While working at Kozhikode, the 1 st
respondent was dismissed from service with effect from
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28.08.2001. The 1st respondent was involved in serious
misconduct of riotous or disorderly behaviour. Therefore, the
petitioner forfeited his gratuity as per Ext.P1 order dated
01.06.2006. Though the 1st respondent challenged the
punishment of dismissal raising ID No.16/2002, the Labour
Court, Kozhikode passed Ext.P2 Award upholding the
punishment. The writ petition and writ appeal filed by the 1 st
respondent challenging the Labour Court Award resulted in
dismissal.
3. However, the 1st respondent filed Ext.P4 Gratuity
Application before the Controlling Authority under the
Payment of Gratuity Act. The petitioner filed objection to
Ext.P4 application as per Ext.P5. The petitioner pointed out
that due to his involvement in a serious misconduct and
riotouss and disorderly behaviour, the gratuity of the 1 st
respondent was forfeited by the petitioner.
4. The Controlling Authority, without considering the
arguments of the petitioner, allowed the Gratuity Application
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and directed the petitioner to pay an amount of ₹59,337/- with
simple interest at 10% as gratuity, as per Ext.P6 order.
Ext.P7 appeal preferred by the petitioner was dismissed by
the Appellate Authority as per Ext.P8 order dated 24.05.2023.
5. The petitioner states that the Appellate Authority
committed a grave error in overlooking the fact that the 1 st
respondent was dismissed from service on grounds of riotous
and disorderly behaviour and hence the petitioner was
justified in forfeiting the gratuity payable to the 1st respondent.
6. The petitioner argued that Section 4(6) of the
Payment of Gratuity Act provides for forfeiture of gratuity
amount if the service of an employee is terminated for his
riotous and disorderly conduct. The misconduct of the 1 st
respondent was proved in a domestic enquiry. The Labour
Court refused to interfere with the punishment. Hence,
Exts.P6 and P8 orders are illegal and unsustainable.
7. Respondents 2 and 3 on an improper consideration
of facts, erred in condoning the delay of more than 17 years in
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filing the application by the 1st respondent. The Gratuity
Application of the 1st respondent ought to have been rejected
on the ground of delay and laches also.
8. The 1st respondent appeared Party-in-person and
resisted the writ petition. The 1st respondent contended that
he was dismissed from service by way of victimisation when
he was elected to the Director Board of Employees Co-
operative Society and objected to continue the Regional
Manager taking management and control over the said
Society by holding the position of the President of the Society.
The dismissal of the 1st respondent was pre-decided. There
was no forfeiture of gratuity as claimed by the petitioner.
9. Ext.P1 order dated 01.06.2006 is an after thought.
Ext.P6 was issued to cover up the failure of the petitioner to
comply with Sections 7(2) and (3) of the Payment of Gratuity
Act. The Controlling Authority rightly ordered to grant gratuity
to the 1st respondent. The Appellate Authority upheld the said
decision. Exts.P6 and P8 orders are not liable to be interfered
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with on any of the grounds urged by the petitioner.
10. Heard.
11. Section 4(6) of the Payment of Gratuity Act, 1972
provides that the gratuity of an employee, whose services
have been terminated for any act, willful omission or
negligence causing any damage or loss to, or destruction of,
property belonging to the employer, shall be forfeited to the
extent of damage or loss so caused.
12. The 1st respondent was proceeded against by the
petitioner for gross misconduct. In the domestic enquiry, the
1st respondent's guilt was proved by oral and documentary
evidence. The petitioner raised industrial dispute before the
Labour Court, Kozhikode against his dismissal. In the Labour
Court, the petitioner submitted that the 1 st respondent was
dismissed from service consequent to his riotous and
disorderly behaviour. The Labour Court found that MW1 and
MW7 superior officers were assaulted by the 1st respondent.
Vulgar and filthy language was used by the 1 st respondent.
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The Labour Court found that the 1 st respondent abused his
superior officers repeatedly.
13. Though the petitioner challenged Ext.P2 Award
filing W.P.(C) No.20970/2006, the writ petition was dismissed.
In W.A. No.1330/2013 filed by the petitioner, a Division Bench
of this Court held that the misconduct proved against the
workman is that he has used vulgar and abusive words
against the officers and that he behaved in a riotous and
disorderly manner. The findings contained in Ext.P3 Division
Bench judgment of this Court have not been challenged by the
1st respondent.
14. As a Division Bench of this Court has found that the
dismissal of the 1st respondent from service is due to riotous
and disorderly behaviour, the 1st respondent is not entitled to
payment of gratuity in view of Section 4(6)(a) of the Payment
of Gratuity Act, 1972, since the petitioner-employer has
forfeited the gratuity.
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The writ petition filed by the petitioner is therefore
allowed. Exts.P6 and P8 orders of the Controlling Authority
and Appellate Authority under the Payment of Gratuity Act are
quashed.
Sd/-
N. NAGARESH, JUDGE
aks/28.10.2024
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APPENDIX OF WP(C) 26380/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED
01.06.2006 ISSUED BY THE PETITIONER
MANAGMENT TO THE 1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE AWARD DATED
23.07.2005 IN ID.NO. 16/2002 PASSED BY
THE LABOUR COURT KOZHIKODE.
Exhibit P3 TREU COPY OF THE JUDGMENT DATED
16.06.2014 IN W.A.NO.1330/2013 OF THIS
HON'BLE COURT.
Exhibit P4 TRUE COPY OF THE APPLICATION DATED
11.12.2018 FILED BY THE 1ST RESPONDENT
BEFORE THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE COUNTER STATMENT IN
G.A.NO.93 OF 2018 DATED 05.10.2021
FILED BY THE PETITIONER BEFORE THE
DEPUTY CHIEF LABOUR COMMISSIONER
(CENTRAL), KAKKANAD.
Exhibit P6 TRUE COPY OF THE ORDER NO.48/
(93)/2018/D1 DATED 20.01.2023 PASSED
BY THE 2ND RESPONDENT.
Exhibit P7 TRUE COPY OF THE APPEAL MEMORANDUM NO.
G.ANO.39/236/2023/B6 (WITHOUT
ANNEXURES) DATED 20.03.2023 FILED BY
THE PETITIONER BEFORE THE 3RD
RESPONDENT.
Exhibit P8 TRUE COPY OF THE ORDER DATED
24.05.2023 NO. G.ANO.39/236/2023/B6
PASSED BY THE 3RD RESPONDENT.
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RESPONDENTS' EXHIBITS
EXHIBIT R1 COMPLAINT AGAINST ME DATED 10.10.2000
EXHIBIT R2 MY REPRESENTATION DATED 24.4.2001
SEEKING A HELPER FOR CROSS EXAMINATION
IN THE DOMESTIC ENQUIRY (WITH CLEAN
COPY)
EXHIBIT R3 CIRCULAR DATED 23.7.2001 ADDRESSED BY
THE SECRETARY OF OUR EMPLOYEES SOCIETY
(WITH ENGLISH VERSION)
EXHIBIT R4 THE LETTER DATED 4.9.2001 ISSUED BY
THE SECRETARY OF THE EMPLOYEES SOCIETY
INFORMING MY REMOVAL AS A DIRECTOR OF
THE SOCIETY CONSEQUENT TO MY DISMISS
EXHIBIT R5 COPY OF DD RECEIVED ON 28.8.2001
EXHIBIT R6 COPY OF MY AUGUST SALARY BILL ALONG
WITH TYPED COPY
EXHIBIT R7 COPY OF MY SALARY BILL OF JULY 2000
