Ani J. Babu v. Controlling Authority under the Payment of Gratuity Act, 1972 and Deputy Labour Commissioner, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.955 OF 2018(T)** ## **PETITIONER/S:** **ANI.J.BABU AGED 38 YEARS,S/O.R.C.BABU, LAKSHMISHYLAM,NARIKKAL P.O., PUNALUR,KOLLAM 691 322.** **BY ADVS. SRI.M.K.CHANDRA MOHANDAS SRI.PRATHEEK VISWANATHAN SRI.K.SATHIYANANDAN PILLAY SRI.SHAKTHI PRAKASH** ## **RESPONDENTS :** **1 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 AND DEPUTY LABOUR COMMISSIONER, KOLLAM 691 013.** **2 J.SAMUEL NJARAKUZHI VEEDU,MYLADUMPARA, CHENGAMANAD,KOTTARAKKARA - 691 557.** ## **R2 BY ADV. SRI.ARUN BABU** ## **SMT POOJA SURENDRAN GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.955 OF 2018(T)** **2** ## **JUDGMENT** Under challenge in this petition filed under Article 226 of the Constitution of India is the order passed by the Controlling Authority under the Payment of Gratuity Act, 1972, dismissing the application seeking to set aside Ext.P1 order by which the petitioner was ordered to pay gratuity to the 2[nd] respondent. The petitioner has also challenged the original order by which the application filed by the 2[nd] respondent claiming gratuity was allowed and he was granted a sum of Rs.2,80,500/- towards gratuity together with interest at 10% p.a to be payable from 1.12.2015. 2. For the sake of clarity, the parties shall be described as applicant and opposite party as was done before the Controlling Authority. 3. In his application filed under Section 7 of the Act, it was contended that the applicant had worked as an employee in ‘Vattakaitha Granites’, run by the opposite party from 1993 onwards. He retired from service due to occupational disease in the year 2015, after completing 22 years of service. According to him, the last drawn wages was **WP(C).No.955 OF 2018(T)** **3** Rs.850/-. Notice was issued to the opposite party and the same was served. However, he did not appear before the Controlling Authority or file his objection. The applicant was examined as AW1 and two other employees were examined as AWs 2 and 3. The Controlling Authority on the basis of the available evidence allowed the application by order dated 26.7.2016 and determined a sum of Rs. 2,80,500/(Rupees Two Lakh Eighty Thousand and Five Hundred only) as the amount payable towards gratuity. 4. The opposite party filed an application to set aside the ex parte order on 27.9.2017. In the said application, a copy of which is produced as Ext.P2, it is stated that due to the set backs that he suffered from the business and various litigation in which he was involved prevented him from appearing before the Controlling Authority. He sought to set aside the ex parte order on that ground. The Controlling Authority considered the application and by Ext.P3 order, rejected the same holding that the application was filed beyond time. 5. Thereafter, based on application filed by the employee show cause notice was issued by the Controlling Authority to the petitioner as to why coercive proceedings shall not be initiated for realising the amount. Immediately thereafter, Ext.P5 explanation was **WP(C).No.955 OF 2018(T)** **4** offered to the show cause notice and thereafter, he has rushed to this Court with this Writ Petition. 6. Sri. M.K. Chandramohan Das, learned counsel appearing for the petitioner, submitted that there is no merit in the application filed by the employee. It is contended that no notice was served on the opposite party before allowing the application. It is further contended that the quarry was in fact run by the father of the petitioner and the business was stopped in the year 2010. He would point out that notice was issued in the name of B. Anil, Vattakaitha Granites whereas the name of the petitioner is Ani J Babu and his address is different. According to the learned counsel, no sufficient opportunity was granted to the petitioner to contest the matter and hence, gross prejudice would be caused, if the order is allowed to stand. 7. Sri.Arun Babu, the learned counsel appearing for the employee, has refuted the prayer with much vehemence. He points out that in Ext.P2 application, it is admitted that notice was in fact served on the petitioner. However, the application to set aside the ex parte order was filed only after a period of one year. It is further submitted that even in Ext.P5 explanation to show cause notice, it is stated that the final order reached the petitioner accidentally. Ext.P1 order as well **WP(C).No.955 OF 2018(T)** **5** as the show cause notice was issued in the quarry address of the petitioner. He would further point out that even in Ext.P2 application, which was filed after a period of one year from the passing of Ext.P1 order, the petitioner has no case that the notice of the application was not served on him or that the address was wrong. 8. I have considered the submissions advanced. I find that in Ext.P2 application for restoration filed by the petitioner herein, he has specifically stated that he has received the notice of the original application and that due to various reasons, he was prevented from appearing before the controlling authority and contest the proceedings. Exhibit P2 application has been filed by the petitioner showing his quarry address. As the said application for restoration was filed much beyond the period stipulated under Section 7(7) of the Act, the same was rejected. The contention that the proceedings were initiated in a wrong name and address cannot be sustained in view of the above. I find that Ext.P4 show cause notice was issued in the quarry address of the petitioner and his name is shown as B Anil. Furthermore, it is in response to Ext.P4, that Ext.P5 review petition was filed before the controlling authority. Even in Ext.P5, the petitioner has asserted that the final order was received by him accidentally and that he had entrusted **WP(C).No.955 OF 2018(T)** **6** the matter with a lawyer. These aspects would reveal beyond any doubt that the contentions now advanced by the petitioner that no notice was served on him or that notice was served on the improper address and that he was unaware of the proceedings of the controlling authority cannot be sustained. 9. The next contention advanced by the learned counsel is that the 2[nd] respondent herein was never employed in the establishment and he was just a casual worker. However, the said contention is belied by the assertion of the petitioner in Ext.P5 review petition filed before the controlling authority wherein, he asserts that the 2[nd] respondent was just a casual worker engaged in the quarry. 10. It is evident from the records that ample opportunities were granted to the petitioner by the controlling authority to contest the proceedings. He has not availed of the opportunities granted to him. The records clearly shows that the 2[nd] respondent had worked for a substantially long period in the establishment. "Gratuity", as observed by the Supreme Court in its etymological sense, means a gift, especially for services rendered or return for favours received. (See **Delhi Cloth & General Mills Co. Ltd. v. Its Workmen[1]** . Gratuity has to be > 1 (1969 (II) LLJ 755) **WP(C).No.955 OF 2018(T)** **7** considered to be an amount paid unconnected with any consideration and not resting upon it, and has to be considered something given freely or without recompense. It does not have foundation on any legal liability, but upon a bounty stemming from appreciation and graciousness. Long service carries with it expectation of an appreciation from the employer and a gracious financial assistance to tide over postretiral difficulties. 11. I am of the considered opinion that the Controlling Authority has carefully considered the evidence let in and had come to the conclusion that there is an employee-employer relationship and hence, the employee is entitled to gratuity. The said finding arrived at by the lower authority as a result of appreciation of evidence from the materials produced cannot be reopened by this Court. It is trite that in exercise of jurisdiction under Article 226 of the Constitution of India, this Court does not sit as a court of appeal over the jurisdiction of the lower authority. Having gone through the records, I have no doubt in my mind that the authorities have acted within jurisdiction and the findings arrived at by the lower authority is clearly based on the evidence tendered before them. In that view of the matter, no interference is warranted in exercise of the powers under Article 226 of **WP(C).No.955 OF 2018(T)** **8** the Constitution of India. This Writ Petition is found devoid of merits and the same is dismissed. Parties are left to suffer their respective costs. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C).No.955 OF 2018(T)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A COPY OF THE ORDER IN G.C. NO.109/2016 DATED 26/7/2016.** **EXHIBIT P2 A COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE CONTROLLING AUTHORITY.** **EXHIBIT P3 A COPY OF THE ORDER DATED 30/10/2017 IN G.C. NO.109/2017.** **EXHIBIT P4 A COPY OF THE SHOW CAUSE NOTICE DATED 11/12/2017.** **EXHIBIT P5 A COPY OF THE REPRESENTATION DATED 26/12/2017.** **RESPONDENT'S/S EXHIBITS: NIL**