Harrisons Malayalam Limited v. Lalitha Shetty and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 ``` ## **`WP(C) NO. 16523 OF 2013`** ## **`PETITIONER:`** ``` THE MANAGER, HARRISONS MALAYALAM LIMITED, ARAPATTA ESTATE, MEPPADI.P.O., WAYANAD-673 577. ``` ``` BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI ``` ## **`RESPONDENTS:`** - `1 LALITHA SHETTY, P F NO.4489, MATHA NIVAS, THAMIZHATHIPALAM, RIPPON.P.O., WAYANAD DISTRICT. 673 577.` - `2 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 (DISTRICT LABOUR OFFICER), WAYANAD-673 121.` - `3 THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 (REGIONAL JOINT LABOUR COMMISSIONER), KOZHIKODE-673 001.` ``` BY ADVS. SRI.E.K.NANDAKUMAR, SR. SRI.P.K.JOSE SMT.TESSY JOSE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 16523 OF 2013 -2- ``` ## **`JUDGMENT`** Order dated 18.12.2012 of the Appellate Authority under the Payment of Gratuity Act, 1972 rendered in Gratuity Appeal No.19 of 2011 preferred by the petitioner has been assailed in the present writ petition. 2. Petitioner is the owner of the Arrapetta Estate at Meppadi Post Office, Wayanad District. Respondent No.1 preferred an application for claiming gratuity on the premise that after having rendered the service with effect from 01.01.1973 upto 31.03.2007 i.e., date of resignation and rendered thirty-four (34) years of service, the respondent did not pay the gratuity of Rs.49,470/- (Rupees forty-nine thousand four hundred and seventy only). 3. Petitioner appeared and filed a detailed counter/statement stating that the 1[st] respondent is in possession of the land owned by the petitioner and not handed over the vacant possession of line room even after he retired and therefore the gratuity was withheld. ``` WP(C) NO. 16523 OF 2013 -3- ``` Gratuity was calculated as Rs.32,330/- (Rupees thirty two thousand three hundred and thirty only) taking the service as forty-one (41) years. Competent authority vide order dated 07.04.2011 passed the order by allowing the application and directing the petitioner to pay the gratuity with 10% simple interest and the appeal preferred by the petitioner was also dismissed. 4. Mr.Nandakumar, learned Senior Counsel assisted by Smt.Tessy Jose submitted that both orders, Ext.P1 dated 07.04.2011 and Ext.P3 dated 18.12.2012, are challenged and the second and third respondents failed to appreciate that the house possessed by the petitioner has not been vacated and it is on that account the gratuity was withheld. In support of the contention relied upon the Division Bench judgment of this Court dated 13.08.2014 rendered in Writ Appeal No.2894/09 and connected cases preferred against the judgment dated 17.09.2009 rendered in W.P(C) No.17700/2009 wherein in identical situation, the Division Bench held that the principle of holding-over would not apply. The ``` WP(C) NO. 16523 OF 2013 -4- ``` management cannot be forced to file a Civil Suit or take other proceedings in civil jurisdiction as it would be mockery of the concept of justice and disposed off the appeal by issuing directions that the management on payment of dues under the Payment of Gratuity Act would be entitled to issue notice to each former employee to vacate the respective premises within a limited period of one week and it does not happen, management will able to dispossess them if found necessary with the police assistance. 5. There is no representation on behalf of the 1[st] respondent despite service. 6. I have heard learned counsel for the petitioner and appraised the paper book and of the view that there is no force or merit. 7. The reason of not vacating the premises, taken for forfeiture of the gratuity, can in no way be in conformity with the provisions of the Gratuity Act. It would be apt to reproduce the findings rendered by the ``` WP(C) NO. 16523 OF 2013 -5- ``` Division Bench in paragraph No.3, relied on by the petitioner: “3. But, the fact of the matter remains that in these cases, labour laws, which are expected to ensure a nice balance between the bargaining capacity of the labour and the management, are apparently abused by the labourers. They want the gratuity due under the relevant statute to be released. That obviously means that they were no more in the service of the establishment. However, in the same voice, they assert that even after termination of the employeremployee relationship and payment of gratuity, they would continue to hold possession of premises allotted to be occupied by them, to reside, in the establishment's buildings. This is something that is not conceived of; and, cannot be countenanced in the realm of labour management in the backdrop of the constitutional principles. As noted above, bargains between the managements and labourers have to be nicely balanced. This has to be done by visualizing that the labour force, by itself, may have a lesser bargaining capacity. Collective labour force or any individual worker cannot oppress or suppress the lawful rights of a management. While the establishments or the managements cannot be permitted to act in any manner hostile to the interest of the labourers, ``` WP(C) NO. 16523 OF 2013 -6- ``` it has also to be ensured that the labour force, individually or collectively, cannot torpedo the legitimate rights of a management to run its establishment lawfully, legitimately and in accordance with its commercial needs, which would also include the managements' need to provide accommodation for labours who may be waiting in the queue for accommodation. Occupation of premises for accommodation extended by the employer is nothing but a permission to enjoy that co-terminus with the breaking up of the jural relationship between the master and servant. No principle of holdingover operates. Due process doctrine gets satisfied by the notice to quit; nothing more. Management cannot be forced to file a suit or take other proceedings in civil jurisdiction. That would be a mockery of the concept of justice in terms of the Constitution and the laws. For the aforesaid reasons, while affirming the impugned common judgment, it is directed that, immediately on the management paying the dues under the Payment of Gratuity Act, they would be entitled to issue notice to each former employee, to vacate the respective premises within a limited period of one week and if that does not happen, it will be open to the management to dispossess them, if found necessary, with police assistance. In such event, on the request of the petitioner, optimum police ``` WP(C) NO. 16523 OF 2013 -7- ``` force as warranted by the situation will be forthwith assessed by the District Police Chief having jurisdiction over the area and such police support shall be immediately extended for enforcement of the directions contained in this judgment. It is so directed. Appeals ordered accordingly.” 8. I am afraid the aforementioned dictum cannot be held to be rendered as a judgment in rem as it is against the judgment laid down by honourable Supreme Court in **Rame Gowda (dead by LRs) v. M.Varadappa Naidu (dead by LRs) (2004 (1) SCC 769)** wherein it has been held that any person who has been found to be living in settled possession cannot be vacated except in due course of law. Paragraph No. 9 of the aforementioned judgment reads as under: “9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions Illustratively, we may refer to Munshi Ram and ``` WP(C) NO. 16523 OF 2013 -8- ``` Ors Vs Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.’s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to ``` WP(C) NO. 16523 OF 2013 -9- ``` lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ‘settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase ‘settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’: i)that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and ``` WP(C) NO. 16523 OF 2013 -10- ``` final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession ” 9. In case the respondent is in illegal possession in the premises of the petitioner, they are at liberty to take action under the public premises Act or any other procedure as prescribed but for not in the manner and mode as noticed by the Division Bench of this Court. Thus I am bound by the judgment of honourable Supreme Court and therefore, with humility, disagree with the findings of the Division Bench. Writ petition sans merit. Accordingly, dismissed. ``` AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) NO. 16523 OF 2013 -11- ``` ## **`APPENDIX OF WP(C) 16523/2013`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE ORDER IN G.C.NO.3/2008 DATED 07.04.2011 PASSED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P2TRUE COPY OF THE APPEAL MEMORANDUM DATED 11.07.2011 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER IN G.A.C.NO.19 OF 2011 DATED 18.12.2012 PASSED BY THE 3RD RESPONDENT. ```