High Court of KeralaSingle JudgeWrit petition dismissed.

C. P. Abdulla v. The Appellate Authority under the Payment of Gratuity Act, 1972 (Joint Labour Commissioner, Kozhikode); The Controlling Authority under the Payment of Gratuity Act, 1972; 3A. Anila

Case / Petition Number:WP(C) No. 9559 of 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V.
Judgment Date
2024-03-12
Court Decision / Holding
This writ petition is dismissed.
Final Disposition
Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

  • C. P. Abdulla

Respondents

  • The Appellate Authority under the Payment of Gratuity Act, 1972 (Joint Labour Commissioner, Kozhikode)
  • The Controlling Authority under the Payment of Gratuity Act, 1972 (Deputy Labour Commissioner, Palakkad)
  • Anila (3A)

Legal Representation & Advocates

Counsels for Petitioners

  • • Vinod S Cheriyan
  • • T. M. Khalid
  • • K. P. Susmitha

Counsels for Respondents

  • • Smt Mable C Kurien, Sr. GP

Case Synopsis & Summary

This writ petition challenges the orders of the Controlling Authority and the Appellate Authority under the Payment of Gratuity Act, 1972, directing payment of gratuity to the 3rd respondent, an employee who resigned in 2019 from the petitioner’s dealership business, Classic Hyundai. The 3rd respondent began as a Registration in-charge in 2013 and was made permanent in 2015; she claims gratuity for a total service of 6 years and 30 days, amounting to Rs. 55,385, with interest. The petitioner contends that the employee’s regular service commenced only in 2015, so the five-year requirement as on resignation would not be satisfied if pre-2015 service is counted, and argues that the employee did not issue prior notice and that there was undue delay in approaching the controlling authority. The Controlling Authority examined evidence (Exts. A1–A6), found that the employee joined in 2013 and was permanent from 2015, and ordered gratuity of Rs. 55,385 (Ext. P8). The Appellate Authority confirmed this. The petitioner argues lack of ample opportunity to cross-examine and challenges the counting of service before 2015. The court, applying Section 2(e) of the Act and upholding the statutory right to gratuity, cites Balbir Kaur v. SAIL to emphasize this entitlement and dismisses the writ petition, upholding concurrent findings.

Provisions of Law Cited

Payment of Gratuity Act, 1972Section 2(e) of the Payment of Gratuity Act, 1972Section 7(7) of the Payment of Gratuity Act, 1972Constitution of India, Article 226

Legal Doctrines & Maxims

  • Statutory right under the Payment of Gratuity Act; gratuity is not charity; employer cannot evade statutory obligations (Balbir Kaur v. SAIL)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the employee’s regular service can only be counted from 1.04.2015 when she was confirmed; thus she did not complete five years of continuous service as on resignation (06.05.2019). It is argued that the controlling authority should have granted ample opportunity for cross-examination, which did not occur, as the petitioner did not appear despite two opportunities. The plea is also raised that counting pre-2015 service inflates the gratuity entitlement and that there was undue delay in approaching the controlling authority and in filing the application. The respondent’s side is that the employee joined in 2013, was made permanent in 2015, and the Act defines “employee” broadly; the period from 2013 to 2015 appropriately falls within the five-year computation, supporting gratuity liability. The concurrent findings were rightly upheld by the appellate authority.

Contentions of Respondents

The respondents maintain that the employee was in service from 2013, permanently from 2015, and thus accrued gratuity despite the pre-2015 period; they emphasize that the Act defines “employee” and that the employee diligently pursued her claim under the statutory process, which culminated in a payment order. They contend the petitioner had opportunities for cross-examination and that the doctrine of statutory rights under the Act justifies enforcement of gratuity once eligibility conditions are met; the appellate authority’s concurrent findings should stand.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Balbir Kaur v. SAIL(2000) 6 SCC 493PositiveCited to support that gratuity is a statutory right and that an employer cannot avoid statutory obligations; used to uphold the employee’s entitlement and the need to inspect statutory rights under the Act.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ## **`WP(C) NO. 9559 OF 2024`** ## **`PETITIONER:`** ``` C. P. ABDULLA AGED 53 YEARS S/O KUNHUTTY, RESIDING AT CP HOUSE, TANUR POST, MALAPPURAM 676302, MANAGING PARTNER, CLASSIC HYUNDAI, MACHINGAL, MALAPPURAMMANAGING PARTNER, CLASSIC HYUNDAI, MACHINGAL, MELMURI P.O., MALAPPURAM, PIN - 676517 ``` ``` BY ADVS. VINOD SINGH CHERIYAN T.M.KHALID K.P.SUSMITHA ``` ## **`RESPONDENTS:`** - `1 THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 (JOINT LABOUR COMMISSIONER, KOZHIKODE), CIVIL STATION, KOZHIKODE, PIN - 673020` - `2 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972` ``` (DEPUTY LABOUR COMMISSIONER PALAKKAD) THOZHIL BHAVAN, CIVIL STATION ROAD,PALAKKAD, PIN - 678001 3A. ANILA AGED 36 YEARS D/O JAYAN, ANGATHIL, KODAPPANCHERY, WARANGODE, MELMURI P.O., MALAPPURAM, PIN - 676519 ``` ## **`SMT MABLE C KURIEN, SR. GP.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C)No.9559 of 2024 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 12[th] day of March, 2024** The petitioner is the managing partner of a partnership firm by name “Classic Hyundai”. They are engaged in the dealership business of Hyundai motor cars. This writ petition is filed challenging the order passed by the Controlling Authority under the Payment of Gratuity Act on an application filed by the 3rd respondent as upheld by the Appellate Authority. 2. The 3[rd] respondent herein, contending that she is an employee of the petitioner who had resigned from service approached the Controlling Authority under the Payment of the Gratuity Act and instituted GC No.99/2019, seeking payment of gratuity. She contended that she was appointed as Registration in-charge by order dated 04.03.2013 and she was confirmed in service with effect from 01.04.2015 . She stated that she continued in service till 06.05.2019, on which date she had submitted her resignation. She contended that she had a total period of service of 6 years and 30 days and the last drawn salary was Rs.16,000/-. She claimed gratuity to the tune of Rs.55,385/- together with interest. ``` WP(C)No.9559 of 2024 ``` ``` 3 ``` 3. The petitioner appeared before the Court below and filed a counter statement. They contended that the employee had started regular service only from 01.04.2015 and if that be the case she was not having the minimum requisite five years continuous service as on the date of her resignation. It is further stated that the employee had not issued prior notice to the employer before approaching the Controlling Authority. It was further contended that there was undue delay in approaching the controlling authority and in filing the application. 4. Before the controlling authority the worker entered the box and gave evidence. On her side Exts.A1 to A6 were marked. She was cross examined by the petitioner. 5. On the side of the petitioner a chief affidavit was filed. However, despite the grant of two opportunities to make himself available for cross examination, he did not appear before the Controlling Authority. 6. The Controlling Authority took note of the fact that the Exts.A1 and A2 discloses that the employee had joined service in the year 2013 and that she was made permanent in the year 2015. It was also noted that records were produced to ``` WP(C)No.9559 of 2024 ``` ``` 4 ``` show that she was drawing salary to the extent of what was asserted in the application. 7. After carefully perusing the entire aspects, the Controlling Authority proceeded to issue Ext.P8 order, ordering the payment of Rs.55,385/- by way of gratuity. 8. Being aggrieved, the petitioner preferred appeal before the Appellate Authority by invoking Section 7(7) of the Payment of Gratuity Act, 1972. The Appellate Authority, after appreciating the facts and after perusal of the records confirmed the order passed by the controlling authority and dismissed the appeal. 9. Challenging the concurrent findings of the authorities, the petitioner is before this Court with this writ petition. 10. The learned counsel appearing for the petitioner would point out that no ample opportunity will be granted to the petitioner to let in evidence. According to the learned counsel though the case was posted on two occasions as the petitioner was having some inconvenience, he could not appear before the controlling authority and face the cross examination. The learned counsel would further contend that the period ``` WP(C)No.9559 of 2024 ``` ``` 5 ``` during which the petitioner had worked as the Registration incharge from 2013 to 2015 could not have been reckoned for calculating the gratuity under the Payment of Gratuity Act. 11. I have carefully considered the submissions advanced and have gone through the records. 12. Records which are produced before the controlling authority and marked as Exts.A1 to A6 merely discloses that the employee was initially appointed as Registration in-charge by appointment order dated 04.03.2013. It is not disputed that it was on 06.05.2019 that the party respondent had resigned from the post. One of the contention advanced by the learned counsel appearing for the petitioner is that the service of the petitioner can be counted only from 1.04.2015 on which date the employee was confirmed in service. I am afraid the said contention cannot be sustained. Exhibit P2 clearly shows that the party respondent was appointed as Registration in Charge on 04.03.2013. As per Section 2 (e) of the Act, “employee” has been defined to mean any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a ``` WP(C)No.9559 of 2024 ``` ``` 6 ``` factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. In that view of the matter, contention of the petitioner that the party respondent is not having 5 years of regular service cannot be accepted. Next contention is that refusal of the controlling authority to grant ample opportunity to the petitioner to substantiate his contentions. I find that on two instances, the petitioner was requested to appear before the controlling authority and to face cross examination. However, the petitioner chose not to appear and face cross examination. It has been held by the Apex Court in **Balbir Kaur v. SAIL** , (2000) 6 SCC 493 that the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favor of the employee. An employer cannot be permitted to evade from appearing before the Controlling Authority and later contend that sufficient opportunity was not granted. The party respondent, who is a lady employee, cannot be driven ``` WP(C)No.9559 of 2024 ``` ``` 7 ``` from pillar to post to claim the amount which is legitimately and statutorily due to her. I find that the Appellate Authority has also appreciated the matter and confirmed the order passed by the Controlling Authority. Having considered the entire facts, I find no error or perversity warranting interference by this Court by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. This writ petition is dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V,** **JUDGE** AP ``` WP(C)No.9559 of 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 9559/2024`** ## **`PETITIONER EXHIBITS`** |`Exhibit P1`|`TRUE COPY OF THE ACKNOWLEDGEMENT OF`| |---|---| ||`REGISTRATION OF FIRM ISSUED BY THE DEPARTMENT`| ||`OF REGISTRATION, GOVERNMENT OF KERALA DATED`| ||`17-07-2017`| |`Exhibit P2`|`TRUE COPY OF THE APPOINTMENT ORDER NO:`| ||`75/HRD/2013/CH-HO DATED 04-03-2013 OF THE`| ||`CHIEF EXECUTIVE OFFICER OF CLASSIC HYUNDAI,`| ||`MALAPPURAM`| |`Exhibit P3`|`TRUE COPY OF THE CONFIRMATION LETTER NO:`| ||`23/HRD/2013/CH-HO DATED 01-04-2015 ISSUED BY`| ||`THE GENERAL MANAGER OF CLASSIC HYUNDAI,`| ||`MALAPPURAM`| |`Exhibit P4`|`TRUE COPY OF THE RESIGNATION LETTER FROM THE`| ||`3RD RESPONDENT TO THE H.R. MANAGER, CLASSIC`| ||`HYUNDAI, MALAPPURAM DATED 06-05-2019`| |`Exhibit P5`|`TRUE COPY OF THE RELIEVING LETTER ISSUED BY`| ||`THE EXECUTIVE DIRECTOR, CLASSIC HYUNDAI,`| ||`MALAPPURAM TO THE 3RD RESPONDENT DATED 09-05-`| ||`2019`| |`Exhibit P6`|`TRUE COPY OF THE PETITION GC NO: 99/2019`| ||`SUBMITTED BY THE 3RD RESPONDENT AGAINST THE`| ||`PETITIONER BEFORE THE 2ND RESPONDENT DATED`| ||`15.10.2019`| |`Exhibit P7`|`TRUE COPY OF THE COUNTER STATEMENT DATED`| ||`04.02.2020`<br>`FILED`<br>`BY`<br>`THE`<br>`PETITIONER`| ||`HEREIN/RESPONDENT IN GC 99/2019 BEFORE THE`| ||`2ND RESPONDENT`| |`Exhibit P8`|`TRUE COPY OF THE ORDER IN GC 99/2019 DATED`| ||`30-08-2022 OF THE CONTROLLING AUTHORITY UNDER`| ||`THE ACT, 1972`| |`Exhibit P9`|`TRUE COPY OF THE DD RECEIPT DATED 10-01-2023`| ||`ISSUED BY THE 2ND RESPONDENT DEPUTY LABOUR`| ||`COMMISSIONER, PALAKKAD`| |`Exhibit P10`|`TRUE COPY OF THE APPEAL GAC NO: 03/2023 FILED`| ||`BY THE PETITIONER BEFORE THE 1ST RESPONDENT`| ||`JOINT LABOUR COMMISSIONER, KOZHIKODE DATED`| ||`7.1.2023`| |`Exhibit P11`|`TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT`| ||`IN GAC NO: 03/2023 DATED 06-10-2023`|