Jayarajan V.T. and Others v. Kozhikode District Co-operative Bank Ltd., The Administrator, Kozhikode District Co-operative Bank Ltd., and Branch Manager LIC of India, Kozhikode Division

## **CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **WP(C).No. 33342 of 2017** ## **PETITIONER/S:** - **1 JAYARAJAN V.T., AGED 60 YEARS 'SAFE', PANTHEERPADAM, KUNNAMANGALAM,KOZHIKODE-673571.** - **2 A.K.UNNIKRISHNAN, 'AKSHAYA', MANIYADATHPARAMB, P.O.KARADPARAMBA (VIA), FEROK COLLEGE, MALAPPURAM-673632.** - **3 P.K.ANANDAN, 'SOUBHAGYA', MAVUKAT, THURUTHIYAD P.O.,BALUSSERY,KOZHIKODE-673612.** - **4 RAJAN K., KOUSTHUBHAM, P.O.NADAKKUTHAZHA, VADAKARA-673104, KOZHIKODE.** - **5 P.CHANDRAN, "PALLIYALIL", P.O.AZHINJILAM, (VIA)FEROKE COLLEGE, MALAPPURAM-673632.** - **6 M.M.AJAYAN, 'GOVIND HOUSE', P.O.KURUVANGAD, KOYILANDI-673620, KOZHIKODE DISTRICT.** - **7 RAJAN KANKADATH, "KANKADATH HOUSE", P.O.CHANGAROTH-673528,(VIA) PERUVANNAMOOZHI, KOZHIKODE.** - **8 V.P.RAJAGOPALAN, VALIAPARAMBA, P.O.KUTHIRAVATTOM, KOZHIKODE-673016.** - **9 RAMACHANDRAN P., PULLAT HOUSE, CHELIYA, KOYILANDI-673306.** - **10 ANITHAKUMARI, "PREMALAYAM", P.O.MUCHUKKUNNU, KOYILANDI-673307.** - **11 SHYLAJA E., KONDALATH HOUSE, JETTY ROAD, P.O.ELATHUR, KOZHIKODE DISTRICT.** - **12 R.DINACHANDRAN, 'VARADANAM', P.O.CHORODE EAST, VATAKARA-673303, KOZHIKODE.** WPC 33342/17 2 - **13 V.BALAKRISHNAN, 'ASHIRVAD", IRINGADAUPALLI ROAD,P.O.CHEVAYUR-673017, KOZHIKODE.** - **14 M.P.SATHYNATHAN, NIRMALYAM, ARAPPUZHA, P.O.PANTHEERANKAVU, KOZHIKODE -673019.** - **15 C.KRISHNAN, "SREESAKTHI", PROBHODINI, P.O.MANNUR, KOZHIKODE-673328.** - **16 V.N.VASU, VAYIKATHIL, KOODATHAI BAZAR, THAMARASSERY -673573, KOZHIKODE.** **BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENT/S:** - **1 KOZHIKODE DISTRICT CO-OPERATIVE BANK REPRESENTED BY GENERAL MANAGER, P.B.NO.503, P.O.CHALAPPURAM, KALLAI ROAD, KOZHIKODE -673002.** - **2 THE ADMINISTRATOR, KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD.NO.F.1635, P.B.NO.503, P.O.CHALAPPURAM, KALLAI ROAD,KOZHIKODE -673002.** - **3 BRANCH MANAGER LIC OF INDIA KOZHIKODE DIVISION, DIVISIONAL OFFICE, JEEVAN PRAKASH, KOZHIKODE-673001.** **BY ADVS.** - **SRI.P.C.SASIDHARAN, SC, KOZHIKODE DISTRICT COOPERATIVE BANK SRI.S.EASWARAN, SC, LIC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 33342/17 3 ## **JUDGMENT** I hear a rather bewildering submission made on behalf of a Co-operative Bank; though not made directly but indirectly, that they are entitled to retain for themselves certain amounts, concededly received at their own request from the Life Insurance Corporation of India (LIC for short hereinafter), towards gratuity payable to the petitioners herein, under a Group Gratuity Insurance Scheme, asserting that the petitioners are not entitled to such amounts under the Payment of Gratuity Act. 2. The respondent-Kozhikode District Co- operative Bank contends very vehemently, in defence to the claims of the petitioners for their full gratuity, that even though the LIC has paid these amounts to them, admittedly as per their own requisition, the petitioners cannot claim any amounts in excess of the statutory limit of Rs.10 lakhs, they being disentitled to WPC 33342/17 4 such amounts under the Payment of Gratuity Act; and consequently, that they are entitled to appropriate it to themselves. 3. This Court cannot offer imprimatur to the afore contention and I will presently state the reasons that guide me in this view; but after I record the most necessary facts. 4. The petitioners say that they have retired from the services of the 1[st] respondentDistrict Co-operative Bank, a Society registered under the provisions of the Kerala Co-operative Societies Act and Rules (hereinafter referred to as the “KCS Act” and “KCS Rules” for short). 5. The petitioners say that they superannuated from service on various dates after 2014 and that they are entitled to the full amounts paid to the respondent Bank by the Life Insurance Corporation of India (LIC for short), the 3[rd] respondent herein, under a policy of insurance, obtained by the Bank from them, under WPC 33342/17 5 the provisions of Section 4A of the Payment of Gratuity Act, 1972 (Gratuity Act for short), to cover the amounts of gratuity payable to their employees. They say that since the Bank has more than 10 employees, the provisions of the Gratuity Act applies; and therefore, that going by Section 4(5) thereof, they are entitled to receive better terms of gratuity, than that are statutorily eligible to them, because the Bank had voluntarily paid a higher premium and had intimated the LIC for higher pay-outs to each of them, based on which the amounts, claimed by them in this writ petition, were paid by the LIC to the Bank against their individual names. 6. The petitioners allege that even though the LIC had paid more than Rs.10 lakhs against each of their names to the Bank, they were paid only Rs.10 lakhs, ostensibly because the statutory ceiling of gratuity at that time, as notified by the Central Government under Section WPC 33342/17 6 4(3) of the Gratuity Act, was only that sum; and consequently, that the Bank has appropriated the balance amounts for their own purposes. The petitioners rely on the Full Bench judgment of this Court in **Chandrasekharan Nair G. v. Kerala** **State Co-operative Agricultural and Rural Development Bank Ltd. [2017(4)KLT 276(FB)],** to assert that they are entitled to the entire payout made by the LIC to the Bank under their individual names; and therefore, that the Bank be directed to pay the balance amounts, after deducting Rupees Ten Lakhs already paid to each of them, along with interest as ordered in the afore judgment. 7. Sri.P.C.Sasidharan, the learned Standing Counsel for the 1[st] respondent-Bank, in refutation of the above submissions, contends that Section 4(3) of the Gratuity Act makes it indubitable that the amount of Gratuity payable to an employee shall not exceed such amount as WPC 33342/17 7 may be notified by the Central Government from time to time. He says that at the time the petitioners retired, the upper ceiling under this provision was admittedly Rs.10 lakhs and axiomatically that they are not entitled to any amount over this figure, notwithstanding the fact that the LIC might have paid the Bank higher amounts against the names of each of the petitioners. 8. Sri.P.C.Sasidharan then reads Section 4A of the Gratuity Act to contend that the mandate of the said Section is that the employer or the establishment must obtain an insurance for its liability for payment towards the permissible gratuity under the said Act and therefore, that it is clear that what is covered by the Policy is only the liability of the employer/establishment to pay as per Section 4(3) of the said Act. He thus says that whatever be the pay-out that the LIC may have credited to the Bank against the WPC 33342/17 8 individual names of the petitioners, they are entitled only to the amounts as fixed under Section 4(3) of the Gratuity Act and nothing more. He asserts that this issue has not been covered by the Full Bench in **Chandrasekharan Nair** **G.** (supra); but alternatively contends that this judgment has been assailed before the Hon'ble Supreme Court of India; without, however, disclosing the number or other particulars of the Special Leave Petition or the Civil Appeal or as to who has made the challenge. 9. Sri.S.Easwaran, the learned Standing Counsel appearing for the LIC, submits that a counter affidavit has been placed on record, wherein his client expressly concedes that amounts much more than Rs.10 lakhs has been paid to the Bank against the names of each of the petitioners and that these amounts were paid as intimated and requisitioned by the Bank in full and final settlement and discharge of all their WPC 33342/17 9 claims under the policy, with respect to the gratuity payable to the petitioners. 10. Sri.S.Easwaran then explains that the “Group Gratuity Cash Accumulation Scheme”, from the corpus of which these payments have been made by the LIC, does not follow the concept of 'individual accounting' but that it has adopted the concept of 'pooled funding'. He says that respondent-Bank is taken as a single Unit and that an actuarial valuation, for calculating the policy premia and pay-outs, is carried out, taking into account the salary, past service, future service etc. of its employees; adding that the fund is maintained by the LIC on behalf of the respondent-Bank. Sri.S.Easwaran further explains that all receipts, except the ‘Life Cover Premium’, are credited to this fund and that all payments, except ‘Death Sum Assured’ (on release of gratuity), are debited from it; and that “Life Cover Premium” is utilized to secure WPC 33342/17 10 residual service gratuity in case of forced exit, namely, on account of death of an employee before his normal retirement. He concludes by saying that replenishments are sought whenever necessary and that the fund is professionally managed, applying the best actuarial principles. 11. In effect, the submissions of Sri.S.Easwaran is that the amounts paid to the Bank, against the names of each of the petitioners herein, were released as per the specific intimation and request made to them by the Bank themselves, clearly indicating that the Bank had sought for a larger pay-out in the names of each of the individual petitioners. 12. When one critically examines the submissions made by the learned counsel for the parties as afore and assess it on the touchstone on the materials on record, it becomes inescapable that the LIC had made the payments to the Bank against the names of the individual WPC 33342/17 11 petitioners, solely as requested and as intimated by them. In other words, it was the Bank which informed the LIC that amounts higher than Rs.10 lakhs are due to each of the petitioners as gratuity and that each of them are entitled to such pay-outs on account of the larger premium paid by the Bank voluntarily and without any compulsion from the petitioners. 13. That having been said, when the provisions of Section 4(3) and Section 4(5) of the Payment of Gratuity Act are assayed from the stand-point of the afore factual scenario, it becomes manifest that even though, as per the former Section, there certainly is an upper limit for the amount of gratuity payable, which limit is fixed by the Central Government from time to time through notifications; Section 4(5), unequivocally protects the right of an employee to receive better and larger amounts of gratuity under any contract or agreement between him and WPC 33342/17 12 his employer, notwithstanding the aforementioned statutorily fixed ceiling. 14. The undeniable co-action of the provisions above has been affirmed by a Full Bench of this Court in **Chandrasekharan Nair G.** ## ( _**supra**_ ), as under: 5. The liability to pay gratuity does not get shifted to the insurer by the compulsory insurance and the effect is only that the maturity value of the master policy would go to the credit of the dues of the employee. Any amount in excess of the gratuity due would also go to the employee since the contract of insurance would fall within the ambit of S.4(5) of the Central Act. Any deficit in the amount due as gratuity to the employees after payment by the insurer has to be met by the employer only as the liability squarely rests on him under S.4(2) of the Central Act. The insurer cannot be made liable to pay any amount in excess of the maturity value of the master policy as the same would be dependent on the premium paid to him. The compulsory insurance under S.4A of the Central Act is only to facilitate the employer to discharge his liability and the premium paid is part of the wages only. Of course the wording of the second proviso to R.59(iii) of the Rules gives rise to a doubt that the employee would be pinned down to the amount of gratuity specified in the Central Act. Such an interpretation would render S4(5) of the Central Act otiose whereunder the employee has a right to receive better terms of gratuity under any award or agreement or contract with the employer. The provisions of the Central Act or any rule made thereunder shall have effect notwithstanding WPC 33342/17 13 anything inconsistent therewith contained in any other enactment or instrument or contract. The overriding effect of the Central Act over other enactments is explicit from S.14 of the Central Act which is to the following effect: “ **14. Act to override other enactments, etc** :- The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act”. 15. After emphatically rendering as afore, the learned Full Bench then, in paragraph 6 of the judgment, has declared unequivocally that the irresistible conclusion is that Section 4(5) of the Gratuity Act, which enables an employee to obtain better terms of gratuity, will prevail over the second proviso of Section 59(3) of the Kerala Co-operative Societies Act, which, at first glance, appears to pin down an employee to the amount of gratuity specified in Section 4(3) of the Gratuity Act; thus making it beyond all doubt that the intention of the Full Bench was to give full effect of the beneficial provisions in the Gratuity Act to the employees, when the WPC 33342/17 14 employer has conceded to such benefits, either expressly or impliedly, as enabled by Section 4(5) of the said Act. 16. From the afore perspective, the mandate of Section 4A of the Gratuity Act, which provides for a compulsory insurance to be taken by an employer/establishment to cover its liability for payment of amounts towards gratuity under the Act, irrefragably takes in all such liability, either under Section 4(3) or under Section 4(5) of the said Act. 17. Therefore, the constitutively germane issue herein is whether there is a contract or agreement between the Bank and the petitioners that a higher amount of gratuity will be paid to them over the limit fixed under Section 4(3); and the answer to this will obtain a resolution of the disputes between the parties. 18. As far as this case is concerned, it is luculent from the submissions of Sri.S.Easwaran, WPC 33342/17 15 as also from the averments in the counter affidavit filed on behalf of the LIC, that the amounts paid by them to the Bank were solely as per the intimation and quantification made by the Bank; which is to say, that it was the Bank which had asked for a higher pay-out as gratuity payable to each of the individual petitioners. Such intimations/requests would not have been made by the Bank to the LIC if their intention was not to pay such amounts to the petitioners since, as seen above, the policy taken by them is only to cover their liability to pay gratuity to its employees and for no other purpose. If it is to be viewed otherwise, it would clearly open up a scenario where the Bank knowingly asked for a higher pay-out in the name of the individual petitioners, without intending to pay it to them and this would then certainly amount to violation of the terms of the Insurance Policy and will have to be construed as breach of trust and WPC 33342/17 16 misappropriation, because admittedly, the Bank is not otherwise entitled to these amounts under the policy. 19. That apart, as is evident from the counter affidavit of the LIC, amounts higher than Rs.10 lakhs were paid to the Bank solely to satisfy the gratuity claims of the petitioners, clearly indicating the amounts eligible to each of them; and I, therefore, fail to understand how the Bank can now retain any part of such amounts or appropriate it to themselves, when it were, admittedly, received by them as per their intimation to the LIC ineluctably declaring such amounts to be payable as gratuity to the petitioners. I must, therefore, say that this attempt of the respondent-Bank is, _prima facie_ , extremely confutative and questionable. 20. In fact, there is nothing on record, in spite of several opportunities having been given to the Bank, to show how these amounts have been WPC 33342/17 17 retained by them and under what authority. This can, therefore, be only viewed as an insidious attempt of the Bank to enrich themselves illegally at the expense of the petitioners, since if they had not claimed these amounts as being gratuity payable to them, the LIC would not have released it. Obviously, therefore, they are now retaining amounts that were never eligible or entitled to them. 21. It is, reslutantly, inevitable that if the LIC has paid the Bank in excess of Rs.10 lakhs favoring each of the petitioners, the action of the Bank in retaining the amounts over Rs.10 lakhs in such fashion cannot find favour of this Court; particularly, in view of the emphatic declaration of law in **Chandrasekharan Nair G.** (supra). 22. I, therefore, find no cause for confusion in **Chandrasekharan Nair G.** (supra) as has been attempted to be shown by WPC 33342/17 18 Sri.P.C.Sasidharan, because the learned Full Bench has clearly declared that employees are entitled to higher pay-outs towards gratuity, if the employer has agreed to such, in terms of Section 4(5) of the Gratuity Act. 23. As I have already said above, since the Bank had themselves requisitioned the LIC for higher pay-outs against the names of each of the individual petitioners, it can only denote that they have voluntarily agreed to offer such benefit to the petitioners and thus, perforce, their conduct in retaining the balance over Rs.10 lakhs, after expressly requesting such payment from the LIC solely for being paid to the petitioners, can only be found to be egregiously improper and illegal. 24. In the afore circumstances and being guided implicitly by the judgment of the learned Full Bench in **Chandrasekharan Nair G.** ( _supra_ ), I direct the 1[st] and 2[nd] respondents to pay to the WPC 33342/17 19 petitioners the amounts received by them from the LIC in excess of Rs.10 lakhs, towards the payment of gratuity to them, along with 6% interest from the date on which these amounts were received by the Bank until it is actually paid. **==> picture [412 x 44] intentionally omitted <==** expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 33342/17 20 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE MASTER POLICY NO.44103 DATED 22.03.1976. - EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION DATED 05.04.2016 RECEIVED FROM LIC IN THE CASE OF PETITIONERS 1,4 AND 10. - EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION DATED 28.06.2016 OF THE FIRST RESPONDENT. - EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 26.09.2017 BEFORE SECOND RESPONDENT. - EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 06.10.2017 IN W.P.(C) NO.21866/2015. - EXHIBIT P6 A TRUE COPY OF THE WP(C)NO.100200/2016 FILED BEFORE THIS COURT WIHOUT EXHIBITS. EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 01.11.2017 IN WP(C)NO.10200/2016. ## RESPONDENTS' EXHIBITS: EXT R3(A) COPY OF THE RELEVANT EXTRACT OF COST AND BENEFIT SCHEDULE FOR THE ANNUAL 01.03.2015. EXT R3(B) COPY OF THE RELEVANT EXTRACT OF COST AND BENEFIT SCHEDULE FOR THE ANNUAL 01.03.2016. EXT R3(C) COPY OF THE RELEVANT EXTRACT OF COST AND BENEFIT SCHEDULE FOR THE ANNUAL 01.03.2017.