K. Chandra Bai v. Mattancherry Sarvajanik Co-Operative Bank Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** ## **WP(C).No.17614 of 2019** ## **PETITIONER:** **K.CHANDRA BAI AGED 58 YEARS W/O. A.S. DINESH, 9/852, PAVITHRAM HOUSE, PANDIKUDY, KOCHI - 682 002.** **BY ADVS. SRI.G.KRISHNAKUMAR SMT.M.L.REMYA** ## **RESPONDENTS:** - **1 THE MATTANCHERRY SARVAJANIK CO-OPERATIVE BANK LTD NO.3284, CHERLAI, COCHIN - 682 002, REPRESENTED BY ITS DIVISIONAL MANAGER.** - **2 LIFE INSURANCE CORPORATION OF INDIA, PENSION AND GRATUITY SCHEME DIVISION, DIVISIONAL OFFICE, M.G. ROAD, ERNAKULAM, KOCHI - 682 016, REPRESENTED BY ITS DIVISIONAL MANAGER.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIEITES OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION, ERNAKULAM, KOCHI - 682 030.** - **4 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, COOPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **BY ADV. SRI.T.A.RAJAN** ## **SRI.S.EASWARAN,SC, SMT.C.S.SHEEJA,SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.17614 of 2019 2** ## **JUDGMENT** The petitioner says that she retired from the services of the 1[st] respondent-the Mattancherry Sarvajanik Co-operative Bank (hereinafter referred to as 'the Society' for short) on 30.11.2018. She concedes that her initial appointment in the Society, on 05.11.1982, was as a Clerk on temporary basis but that such appointment was done on the basis of a written test and interview. She asserts that she was, thereafter, regularized on 01.01.1991 and therefore, that she is entitled to reckon her entire service from 05.11.1982 for the purpose of gratuity. 2. The petitioner alleges that, however, the 1[st] respondent-Society has declined to grant her gratuity reckoning this period maintaining that the period during which she worked as a temporary staff cannot be counted to be eligible period for payment of gratuity. The petitioner submits **WP(C).No.17614 of 2019 3** that she is relying on the judgment of the Hon'ble Supreme Court in _**Netram Sahu v. State of Chhattisgarh and Another** [(2018) 5_ _SCC 430],_ in which the law has already been declared that if there is no provision in the applicable Act dis-entitling a person from claiming gratuity for the period during which he/she worked in a temporary capacity, then the entire period he/she worked regardless the post or which capacity she/he worked must be reckoned for the purpose of computation of gratuity. 3. The petitioner, therefore, prays that the respondent-Society be directed to pay her the eligible gratuity, which she calculates to be Rs.16,52,054/-, out of which she concedes that an amount of Rs.11,79,780/- has already been paid to her. 4. The learned Standing Counsel appearing for the respondent-Society, Shri.T.A.Rajan, submits that the Bank had paid the petitioner her gratuity to the ## **WP(C).No.17614 of 2019 4** extent of Rs.11,79,780/-, calculating the period after she had been regularized in service. He says that they had also entered into the Group Gratuity Insurance Scheme with the Life Insurance Corporation (hereinafter referred to as 'the LIC' for short) and that they have not even waited for the LIC to make payment to them before they disbursed the amounts to the petitioner. He, therefore, prays that no further amounts may be directed to be paid to her. 5. The learned Standing Counsel appearing for the LIC, Sri.S.Easwaran, submits that even though the Society has enrolled in the Group Gratuity Insurance Scheme with them they are yet to make any requisition in the name of the petitioner. He says that as and when a requisition is made, the LIC will consider the same in terms of the applicable provisions of the Scheme and law. **WP(C).No.17614 of 2019 5** 6. When I hear the learned counsel of the parties as afore, it is ineluctable that the petitioner's claim is based on the declaration of law by the Hon'ble Supreme Court in _**Netram Sahu**_ (Supra), which declares that, in the absence of a provision disentitling a person to gratuity while having worked in a temporary capacity, the employer will be liable to reckon such period also while calculating the quantum of gratuity. However, the specific stand of the Society is to the contrary and the sole reason they say so is because the petitioner had worked for the relevant period only in a temporary capacity. That said, however, it is pertinent that the Society has not yet made a requisition to the LIC. This is important because, if after a proper quantification, amounts are found to be larger than what they have already paid to the petitioner, they can still make a fresh requisition to the LIC under the Group Gratuity Insurance ## **WP(C).No.17614 of 2019 6** Scheme. 7. That said, I do not propose to make any affirmative declarations or findings in this judgment, since I am of the view that these aspects must be considered by the Society first, before the petitioner can challenge the resultant order before this Court or before the competent Authority. 8. I am, therefore, of the firm view that the Managing Committee of the Society must now hear the petitioner and take a decision as to the quantum of gratuity payable to her, adverting to the judgment of the Hon'ble Supreme Court in _**Netram Sahu**_ (Supra) or any other judgment or precedent that may be presented before them by the petitioner; and to then issue a resultant order, fixing the actual amount of gratuity. The Society will be at full liberty, thereafter, to make a requisition to the LIC for the relevant amount; and if the policy so permits, the LIC will honour the same in **WP(C).No.17614 of 2019 7** terms of law, without any further delay thereafter. 9. The exercise as afore directed shall be completed by the Managing Committee of the 1[st] respondent-Society as expeditiously as is possible, but not later than six weeks from the date of receipt of a copy of this judgment. 10. After I dictated this judgment Shri.G.Krishna Kumar, the learned counsel for the petitioner, submitted that his client has also raised two other aspects, namely, objections with respect to the increment that was eligible to his client while she was in service and the fixation of her pay at par with her juniors. Even when I hear Shri.G.Krishna Kumar as afore, I am afraid that these are not an issues that this Court can consider in a writ petition under Article 226 of the Constitution of India and the petitioner must invoke her alternative statutory remedy of raising a ## **WP(C).No.17614 of 2019 8** dispute under Section 69 of the Kerala Cooperative Societies Act, if she is so interested for this purpose. I leave this liberty open, subject to the laws and prescriptions of limitations and deem it better not to issue any further orders in this writ petition on these aspects. This writ petition is thus ordered. ## **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** MC/9.7.19 **WP(C).No.17614 of 2019 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMO DATED 1.11.1982 ISSUED BY THE IST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 27.5.1985 ISSUED BY THE IST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 25.2.2019 PREFERRED BY THE PETITIONER TO THE 3RD RESPONDENT JOINT REGISTRAR.** ## **RESPONDENT'S/S EXHIBITS:** ## **NIL** **MC** **(TRUE COPY) PA TO JUDGE**