Kerala High Court
Thankamma vs The Regional Joint Labour Commissioner on 21 July, 2025
Author: K.Babu
Bench: K. Babu
WP(C).No.24720 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
WP(C) NO. 24720 OF 2025
PETITIONER/S:
1 THANKAMMA,
AGED 75 YEARS
W/O JOSE SAMUEL, JOSEPH BHAVANAM, ANAYADI P.O,
SOORANAD NORTH, KUNNATHOOR, KOLLAM DISTRICT, PIN
- 690561
2 JOHNSON JOSE,
AGED 51 YEARS
S/O JOSE SAMUEL, RESIDING AT JOSEPH BHAVANAM,
ANAYADI P.O,SOORANAD NORTH, KUNNATHOOR, KOLLAM
DISTRICT, PIN - 690561
3 JOJU JOSE,
AGED 49 YEARS
S/O JOSE SAMUEL, RESIDING AT JOSEPH BHAVANAM,
ANAYADI P.O, SOORANAD NORTH, KUNNATHOOR, KOLLAM
DISTRICT, PIN - 690561
4 JACKSON JOSE,
AGED 47 YEARS
S/O JOSE SAMUEL, RESIDING AT JOSEPH BHAVANAM,
ANAYADI P.O,SOORANAD NORTH, KUNNATHOOR,KOLLAM
DISTRICT, PIN - 690561
WP(C).No.24720 of 2025
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BY ADV SRI.H.VISHNUDAS
RESPONDENT/S:
1 THE REGIONAL JOINT LABOUR COMMISSIONER,
OFFICE OF THE REGIONAL JOINT LABOUR
COMMISSIONER, KOLLAM, PIN - 691013
2 THE DEPUTY LABOUR COMMISSIONER
OFFICE OF THE DEPUTY LABOUR COMMISSIONER,
KOLLAM, PIN - 691013
3 ADDL.R3. SMT. KRISHNAPRIYA S,
SUREH BHAVANAM, ANAYADI P.O., SOORANADU NORTH,
KUNNATHOOR, KOLLAM (IS SUO SOTU IMPLEADED AS
ADDITIONAL RESPONDENT NO. 3 IN WPC 24720/2025 AS
PER ORDER DATED 04-07-2025 IN WPC 24720/2025)
R1 AND R2 BY SRI VK SUNIL,SR GP
R3 BY ADV SRI.K.M.FIROZ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No.24720 of 2025
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"C.R."
K.BABU, J.
-------------------------------------
WP(C).No.24720 of 2025
----------------------------------------
Dated this the 21st day of July, 2025
JUDGMENT
The petitioners are the legal representatives of one
Samuel Jose @ Jose Samuel, the licencee of Thankam
Cashew Factory, Anayadi, Kunnathoor, Kollam who died
on 22.02.2022. Additional respondent No.3 was a worker
in the Thankam Cashew Factory, an establishment comes
under the definition of 'factory' under Section 2(g) of the
Payment of Gratuity Act, 1972 ('the Gratuity Act' for
short). The worker superannuated on 30.10.2021. She
filed an application before the employer under Section
7(1) of the Gratuity Act seeking payment of gratuity
entitled to her. The employer refused to entertain the
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claim. Thereafter, she filed GC No.361/2022 under
Section 7(4) of the Gratuity Act before the Controlling
Authority. The 'respondent' in the application filed before
the Controlling Authority was the Managing Director of
Thankam Cashew Factory. Notice was issued to the
respondent in the proceedings, which was received by
one Sri. Anil Xavier, who was the then manager of the
factory on 08.02.2023 (Ext.R3(a)). When the respondent
in GC No.361 of 2022/the manager of the factory failed to
appear before the Controlling Authority, Ext.P1 order was
passed on 04.10.2023 directing payment of a sum of
Rs.44,438/- to the petitioner as gratuity with interest at
the rate of 10% per annum. Revenue recovery
proceedings were initiated against the factory.
Thereafter, the petitioners filed Ext.P2 application to set
aside the ex parte order before the Controlling Authority.
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It is submitted that the Authority did not consider that
application. After that, the petitioners filed Ext.P4 appeal
before the Appellate Authority along with an application
to condone the delay of 472 days in filing the appeal. The
Appellate Authority did not number the appeal. The
petitioners also deposited the entire amount due to
additional respondent No.3 as per Ext.P1 order, before
the Controlling Authority. The petitioners seek a writ of
mandamus directing respondent No.1 (the Appellate
Authority) to number and admit the memorandum of
appeal (Ext.P4).
2. I have heard the learned counsel for the
petitioners, the learned Senior Government Pleader and
the learned counsel for additional respondent No.3.
3. The learned counsel for the petitioners raised
the following grounds:-
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(1) Ext.P1 order is an order against a dead
person.
(2) The Appellate Authority ought to have
admitted the appeal and considered the
application to condone the delay.
4. The learned counsel for the petitioners
submitted that the factory in question was owned by
Sri.Jose Samuel and since the order was passed on
04.10.2023, at a time when he was not alive, Ext.P1 is a
nullity. Relying on Ashok Transport Agency v.
Awadhesh Kumar and another [(1998) 5 SCC 567], the
learned counsel for the petitioners submitted that as the
factory is a proprietary concern, with the death of the
owner, the proceeding seeking gratuity can only be
initiated against his legal representatives.
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5. The learned counsel for the petitioners
submitted that the Appellate Authority was statutorily
bound to number the appeal and consider the application
seeking condonation of delay in preferring the appeal as
per Section 7(7) of the Gratuity Act.
6. The learned counsel for additional respondent
No.3 submitted that the concepts of owner, occupier,
manager etc. in the context of Factories Act and Gratuity
Act are to understood distinctly. Relying on Section 2(f) of
the Gratuity Act, the learned counsel submitted that the
Manager/Managing Director is to be treated as
'employer' for the purpose of the Payment of Gratuity Act.
7. The learned counsel has taken me to the
various provisions in the Factories Act and the Gratuity
Act to substantiate his contention that the proceeding
against the 'manager' in an application under Section
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7(4) of the Gratuity Act is to be treated as a proceeding
against the 'employer' as defined in the Act.
8. Section 2(f) of the Gratuity Act defines
'employer' as follows:-
"(f) "employer" means, in relation to any establishment,
factory, mine, oilfield, plantation, port, railway company
or shop -
(i) belonging to, or under the control of, the Central
Government or a State Government, a person or authority
appointed by the appropriate Government for the
supervision and control of employees, or where no person
or authority has been so appointed, the head of the
Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local
authority, the person appointed by such authority for the
supervision and control of employees or where no person
has been so appointed, the chief executive office of the
local authority,
(iii) in any other case, the person, who, or the authority
which, has the ultimate control over the affairs of the
establishment, factory, mine, oilfield, plantation, port,
railway company or shop, and where the said affairs are
entrusted to any other person, whether called a manager,
managing director or by any other name, such person; "
9. Section 2(g) of the Gratuity Act says that
'factory' has the meaning assigned to it in clause (m) of
Section 2 of the Factories Act, 1948. Ext.P9 licence
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issued in respect of the factory makes it clear that the
factory under consideration is the one registered under
the provisions of the Factories Act. Section 2(m) of the
Factories Act defines 'factory'. Relying on the definition
of 'occupier' in Section 2(n) of the Factories Act, the
learned counsel for additional respondent No.3 submitted
that the occupier of a 'factory' means a person who has
ultimate control over the affairs of the factory. As per
Section 7(1)(f) of the Factories Act, the name of the
manager of the factory is to be communicated to the
Chief Inspector of Factories. Section 7(4) of the Factories
Act requires that whenever a new manager is appointed,
the occupier shall send to the Inspector a written notice
and to the Chief Inspector a copy thereof within seven
days from the date on which such person takes over
charge. Sub-section (5) of Section 7 says that during any
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period for which no person has been designated as
manager of a factory or during which the person
designated does not manage the factory, any person
found acting as manager, or if no such person is found,
the occupier himself, shall be deemed to be the manager
of the factory for the purposes of this Act. Rule 2(l) of the
Kerala Factories Rules, 1957, defines 'Manager' as the
person responsible to the occupier for the working of the
factory for the purposes of the Act. Rule 12A of the Rules
mandates notice of change of manager to the competent
authority. Relying on the above referred statutory
provisions, the learned counsel submitted that the
manager in a factory is a statutorily recognized person to
be treated as 'employer' as provided in Section 2(f) of the
Gratuity Act.
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10. Relying on Exts.P9 and P10, the learned
counsel for the petitioners submitted that after the death
of Jose Samuel, the licence of the factory was changed to
the name of petitioner No.1, the wife of the deceased
owner/occupier. The learned counsel for respondent No.3
brought to my notice that the licence for the same factory
is continuing and the establishment as it existed at the
time when respondent No.3 was working continues even
after change of licence. The manager of the
establishment admittedly received notice of the
proceedings under the Gratuity Act. This is a
constructive notice to the 'employer' as defined in the
Gratuity Act. It is submitted that once the manager, the
person in control of the affairs of the factory, is made a
party in a proceeding, the death of the owner or occupier
has no consequence and there is no need to implead the
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legal representatives of the owner, especially in view of
the fact that petitioner No.1 is continuing as the licencee.
I am in perfect agreement with the argument raised by
the learned counsel for respondent No.3. I hold that the
'employer' of Thankam Cashew Factory was properly
represented in the proceedings before the Controlling
Authority with the service of notice to the manager.
11. The learned counsel for the petitioners now
submitted that the Appellate Authority was statutorily
bound to number the appeal. In response to this
contention, the learned counsel for respondent No.3
submitted that the Appellate Authority did not number
the appeal as it was filed beyond the period of limitation.
The learned counsel submitted that in view of the first
proviso to sub-section (7) of Section 7 of the Gratuity Act,
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the Appellate Authority has no power to admit an appeal
beyond the period of 120 days (60+60).
12. Section 7 reads thus:-
"7. Determination of the amount of gratuity
xxxxx
(7)Any person aggrieved by an order under sub-
section (4) may, within sixty days from the date of the
receipt of the order, prefer an appeal to the
appropriate Government or such other authority as
may be specified by the appropriate Government in
this behalf:
Provided that the appropriate Government or the
appellate authority, as the case may be, may, if it is
satisfied that the appellant was prevented by
sufficient cause from preferring the appeal within the
said period of sixty days, extend the said period by a
further period of sixty days.
Provided further that no appeal by an employer shall
be admitted unless at the time of preferring the
appeal, the appellant either produces a certificate of
the controlling authority to the effect that the
appellant has deposited with him an amount equal to
the amount of gratuity required to be deposited under
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sub-section (4), or deposits with the appellate
authority such amount."
13. The learned counsel for respondent No.3 relied
on Commanding Officer, Naval Base and Others v.
Appellate Authority Under the Payment of Gratuity
Act and others [2004 KHC 1073] and Secretary Sree
Avittom Thirunal Hospital, Health Education v.
State of Kerala [2023 KHC 9015] to substantiate his
contentions. In Commanding Officer this Court held
thus:-
"18........The Payment of Gratuity Act had
prescribed the period of limitation in filing an appeal as
60 days. The statute further conferred jurisdiction on the
Appellate Authority to condone the delay of 60 days in
preferring the appeal when sufficient cause was shown
for the delay. The Limitation Act prescribes the time for
filing suits, appeals and applications. S.5 of the
Limitation Act empowers the court to condone the delay
in filing applications and appeals when sufficient cause
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has been shown to the satisfaction of the court. Such a
power has been specifically given to the Appellate
Authority under the Payment of Gratuity Act also to
condone the delay of 60 days when sufficient cause is
shown to the satisfaction of the Appellate Authority.
When the Legislature has limited the jurisdiction of the
Appellate Authority to condone the delay in filing an
appeal only to a limited period of 60 days, the same
authority cannot extend the time or condone the delay of
any further period by invoking S.5 of the Limitation Act.
The Payment of Gratuity Act is a subsequent legislation
passed in 1972 whereas the Limitation Act was passed in
1963. The settled principle of interpretation of statutes is
that when there are two mandates in two statutes, the
provision in the later statute would prevail. When the
period of limitation has been specifically prescribed in
the subsequent statute viz. the Payment of Gratuity Act
and the Appellate Authority has been given jurisdiction to
condone the delay of a specified period on establishing
sufficient cause, there is an implied prohibition from
invoking the provisions under the Limitation Act for
condoning the delay. There is an implied bar in invoking
S.5 of the Limitation Act and as such I am in full
agreement with the views taken by the High Court of
Madras and Andhra Pradesh. The Appellate Authority
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under the Payment of Gratuity Act cannot condone an
application for condonation of delay beyond the period of
60 days as contemplated under S.7(7) of the Act."
14. In Sree Avittom Thirunal Hospital,
reiterating the principle held in Commanding Officer,
this Court held that the legislature, while enacting sub-
section (7) of Section 7 of the Gratuity Act specifically
excluded the application of Limitation Act by providing
the limitation of appeal for a period of 60+60 days. This
Court observed that for all the intends and purposes,
there cannot by any condonation of delay by taking the
aid of the aforementioned provisions by entertaining an
application under Section 5 of the Limitation Act.
15. The learned counsel for respondent No.3
further submitted that the ratio in Ashok Transport
Agency, the decision relied on by the learned counsel for
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the petitioners, is not applicable to the facts of the case.
The provisions of Gratuity Act are self-contained and the
provisions of CPC are applicable only to certain limited
purpose of enquiry, as provided in Section 7(5) of the
Payment of Gratuity Act.
16. In view of the statutory provisions mentioned
above and the precedents relied on, this Court is of the
view that the appeal preferred by the petitioners is
beyond the period of limitation, and therefore, not
maintainable. The Appellate Authority cannot be found
fault with for not numbering the appeal.
17. At this juncture, the learned Government
Pleader brought to my notice that the appeal was
numbered by the Appellate Authority after the institution
of the Writ Petition. The numbering of the appeal by the
Appellate Authority has no consequences as the
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petitioners themselves admitted that the appeal was not
numbered at the time of institution of the Writ Petition.
18. The learned Senior Government Pleader
submitted that the Controlling Authority after serving
notice to both sides considered the pleadings in the
application and recorded the finding that respondent
No.3 is entitled to Rs.44,432/- with accrued interest as
gratuity. The learned Government Pleader submitted that
the Authority had considered all relevant aspects while
passing the impugned order.
19. I have gone through Ext.P1 order. There is no
patent error or irregularity in the order awarding
gratuity.
20. Having regard to the finding that the employer
has received notice regarding the proceedings and the
Controlling Authority rightly considered relevant aspects
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while passing the Award, this Court finds no reason to
interfere with the Award exercising jurisdiction under
Article 226 of the Constitution of India.
21. Therefore, the petitioners are not entitled to the
reliefs sought for in the Writ Petition.
22. It is submitted that a sum of Rs.60,362/- was
deposited before respondent No.2 at the time of filing
appeal. The Appellate Authority shall release the amount
to respondent No.3 forthwith.
23. Registry shall forward the copies of the
judgment to the Controlling Authority and the Appellate
Authority.
The Writ Petition stands dismissed.
Sd/-
K.BABU,
JUDGE
kkj
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APPENDIX OF WP(C) 24720/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED 4-10-
2023 IN GC NO.361/2022 PASSED BY THE
DEPUTY LABOUR COMMISSIONER, KOLLAM-2ND
RESPONDENT
Exhibit P2 A TRUE COPY OF THE UNNUMBERED IA TO
SET ASIDE EX-PARTE ORDER FILED BY THE
PETITIONERS DATED 16-10-2024 BEFORE
THE DEPUTY LABOUR COMMISSIONER, KOLLAM
-2ND RESPONDENT
Exhibit P3 A TRUE COPY OF THE DEATH CERTIFICATE
OF LATE. SRI. S.JOSE ISSUED BY THE
LOCAL REGISTRAR OF BIRTH & DEATH DATED
14-02-2022
Exhibit P4 A TRUE COPY OF THE UNNUMBERED
MEMORANDUM OF APPEAL DATED 19-05-2025
FILED BY THE PETITIONER'S UNDER
SECTION 7(7) OF THE PAYMENT OF
GRATUITY ACT AGAINST THE EX-PARTE
ORDER BEFORE THE APPELLATE AUTHORITY-
1ST RESPONDENT
Exhibit P5 A TRUE COPY OF THE UNNUMBERED IA IN
UNNUMBERED GA UNDER SECTION 7(7)
PROVISO OF THE PAYMENT OF GRATUITY ACT
TO CONDONE THE DELAY ON FILING OF THE
APPEAL DATED 19-05-2025 FILED BEFORE
THE 2ND RESPONDENT
Exhibit P6 A TRUE COPY OF THE UNNUMBERED IA TO
STAY THE REVENUE RECOVERY PROCEEDINGS
DATED 19-05-2025 FILED BEFORE THE 1ST
RESPONDENT
Exhibit P7 A TRUE COPY OF THE PETITION DATED 19-
05-2025 FILED IN G.C NO.361/2022 BY
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THE PETITIONERS BEFORE THE 2ND
RESPONDENT
Exhibit P8 A TRUE COPY OF THE RECEIPT DATED 21-
05-2025 ISSUED BY THE 2ND RESPONDENT
RESPONDENT EXHIBITS
Exhibit R3(A) TRUE COPY OF THE ACKNOWLEDGEMENT CARD
DATED 8.02.2023
Exhibit R3(B) TRUE COPY OF THE MEDICAL CERTIFICATE
DATED 08.07.2021
PETITIONER EXHIBITS
Exhibit P9 A TRUE COPY OF THE LICENSE BEARING
REGISTRATION NO.CHW/CHR/11/375/1996
DATED 9-11-2020 GRANTED TO JOSE
SAMUELISSUED BY THE DEPARTMENT OF
FACTORIES AND BOILERS
Exhibit P10 A TRUE COPY OF THE LICENSE GRANTED TO
SMT. THANKAMMA THOMAS BEARING
NO.CHW/CHR/11/375/1996 DATED NIL
ISSUED BY THE DEPARTMENT OF FACTORIES
AND BOILERS
