K. RAMAKRISHNAN and Others v. The Chief General Manager, Indian Rare Earths Company, Karithura, Chavara P.O., and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939 WP(C).No. 4999 of 2009** ## **PETITIONER(S)** **-------------** - **1 K.RAMAKRISHNAN ,S/O.KUNJU PILLAI, PALEZHATHU VEEDU, KOTTAKKAKOM,, CHAVARA.** - **2 L.STANLY, S/O.LAWRENCE, JOSHI BHAVANAM, CHERUSSERI BHAGOM,, CHAVARA.** - **3 SHANMUGHAN, S/O.VELUTHA KUNJU, KOLLANTAYATHU VEEDU, KULANGARA BHAGOM,, CHAVARA.** - **4 N.VIJAYAN, S/O.NARAYANAN, PULATHARAYIL VEEDU,, KULANGARA BHAGOM, CHAVARA.** - **5 RAVEENDRAN PILLAI, S/O.NARAYANA PILLAI, KIZHAKKE AMBILAKKARA VEEDU,, PATTATHANAM, MUKUNDAPURAM, CHAVARA.** - **6 K.SANKARAN, S/O.KRISHNAN, THOTTUMUKKATHU VEEDU,, KULANGARA BHAGOM MURI, CHAVARA.** - **7 S.PRABHAKARAN, S/O.SEKHARAN, CHAKKANASSERIYIL, CHERUSSERI BHAGOM,, CHAVARA.** - **8 G.ANANDAN, S/O.JANARDHANAN, THONISSERIL, KULANGARABHAGAM, CHAVARA.** - **9 G.SIVANANDAN, S/O.GOVINDAN, KARTHIKA VILASOM VEEDU,, KULANGARABHAGOM, CHAVARA. 10 P.BHASKARAN, S/O.PADMANABHAN, MULAVAYALLIL VADAKKATHIL,, KULANGARABHAGAM, CHAVARA.** - **11 P.NARAYANA PILLAI, S/O.PARAMBU PILLAI, KALAINTE THARAYIL, ITHITHUVA,, WEST KALLADA P.O., KOLLAM. 12 N.K.PACHAN, S/O.NARAYANAN, CHERUKOL VADAKKATHIL VEEDU,, KULANGARABHAGOM MURI, CHAVARA.** **TS** ## **WP(C).No. 4999 of 2009** - **13 P.G.OMANAKUTTAN PILLAI, S/O.GOPALAPILLAI VILAYIL PADINJATTATHIL VEEDU,, KULANGARABHAGOM, CHAVARA.** - **14 M.BHASKARAN, S/O.MADHAVAN,** - **THONUKARAPUTHEN VEEDU,, KULANGARABHAGOM CHAVARA.** - **15 P.RAJAN, S/O.PRABHAKARAN, SHYAM NIVAS, CHERUSSERIBHAGAM, CHAVARA.** - **16 N.SOMAN, S/O.MADHAVAN,** - **DHANYALAYAM, CHERUSSERIBHAGAM, CHAVARA.** - **17 JAYACHANDRAN, S/O.NANU,** **KUZHIPADANNEL VEEDU,, PUTHANTHURA, NEENDAKARA P.O.,, KOLLAM.** **BY ADVS.SRI.C.S.AJITH PRAKASH** **SRI.ANIL KUMAR** **SRI.PAUL C THOMAS SRI.P.A.SALEEM SRI.C.S.YESUDAS SRI.T.D.SALIM** ## **RESPONDENT(S):** - **-------------** **1. THE CHIEF GENERAL MANAGER,INDIAN RARE INDIA RARE EARTHS COMPANY,, KARITHURA, CHAVARA P.O.,, (THE PRESIDENT, I.R.E. CIVIL CONTRACT WORKERS WELFARE FORUM, REG.NO.Q. 70/90, CHAVARA P.O)** **2. THE SECRETARY,** **I.R.E. CIVIL CONTRACT WORKERS WELFARE FORUM,, REG.NO.Q. 70/90, CHAVARA P.O** **3. THE CONTROLLING AUTHORITY, UNDER THE PAYMENT OF GRATUITY ACT, AND THE ASSISTANT, LABOURER COMMISSIONER (C), TRIVANDRUM.** **4. THE APPELLATE AUTHORITY, UNDER THE PAYMENT OF GRATUITY ACT, AND THE REGIONAL LABOUR COMMISSIONER (CANT..I), KOCHI - 682 030.** **5. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF LABOUR, NEW DELHI.** **R2 BY ADVS. SRI.ANIL D. NAIR** **SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.E.K.NANDAKUMAR** **R5 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TS** ## **WP(C).No. 4999 of 2009** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1:- A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO THE 8TH PETITIONER. EXHIBIT P2:- A TRUE COPY OF THE GRATUITY APPLICATION FILED BY THE 9TH PETITIONER. EXHIBIT P3:- A TRUE COPY OF THE WRITTEN STATEMENT FILED IN GA 43/05 FILED BY K.SANKARAN. EXHIBIT P4:- A TRUE COPY OF THE COMMON ORDER IN GA 43/05 TO GA 70/06 DATED 31.7.2007. EXHIBIT P5:- A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE 6TH PETITIONER. EXHIBIT P6(A):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.64/07 B1 DATED 28.4.2008. EXHIBIT P6(B):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.69/07 B1 DATED 28.4.2008. EXHIBIT P6(C):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.72/07 B1 DATED 28.4.2008. EXHIBIT P6(D):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO, 73/07 B1 DATED 28.4.2008. EXHIBIT P6(E):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.75/O7 B1 DATED 28.4.2008. EXHIBIT P6(F):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.76/07 B1 DATED 28.4.2008. EXHIBIT P6(G):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.78/07 B1 DATED 28.4.2008. EXHIBIT P6(H):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.71/07 B1 DATED 28.4.2008. EXHIBIT P6(I):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.74/07 B1 DATED 28.4.2008. EXHIBIT P6(J):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.79/07 B1 DATED 28.4.2008.** **TS** **WP(C).No. 4999 of 2009** **EXHIBIT P6(K):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.80/07 B1 DATED 28.4.2008.** **EXHIBIT P6(L):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.77/07 B1 DATED 28.4.2008.** **EXHIBIT P6(M);- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.65/07 B1 DATED 28.4.2008.** **EXHIBIT P6(N):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.67/07 B1 DATED 28.4.2008.** **EXHIBIT P6(O):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.66/07 B1 DATED 28.4.2008.** **EXHIBIT P6(P):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.68/07 B1 DATED 28.4.2008.** **EXHIBIT P6(Q):- A TRUE COPY OF THE APPELLATE ORDER IN GA NO.70/07 B1 DATED 28.4.2008.** ## **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS** ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ ## W.P.(C) No.4999 of 2009 _**********************************************************************_ Dated this the 1[st] day of February, 2018 ## JUDGMENT The petitioners approached Gratuity Controller claiming that they worked under the first respondent before the formation of the second respondent society and therefore, they are entitled to gratuity for the period during which they worked under the first respondent. The Gratuity Controller as well as the appellate authority took the view that the petitioners past service under a contractor of the first respondent cannot be reckoned for determination of gratuity and therefore, the petitioners are not entitled for gratuity for that period. Admittedly, the petitioners were given gratuity in accordance with the statutory provision after the formation of the Society. The question is whether the petitioners are entitled for gratuity during the period in which they were alleged to have been W.P.(C) No.4999 of 2009 2 engaged by the contractor under the first respondent or not. According to the petitioners, they were engaged directly by the first respondent. There were no contractors involved and therefore, they are entitled to gratuity for that period. The petitioners refer to Ext.P1. Ext.P1 is the calculation of gratuity prepared by the Secretary of the first respondent Society. In Ext.P1, the petitioners were paid ex-gratia/gratuity for the period worked under the contractor. This calculation, according to the petitioners, is at the rate less than prescribed under the statutory provision. The petitioners submitted that since the first respondent themselves have admitted, the petitioners are entitled for ex-gratia/gratuity, there is no further enquiry required in the matter. Therefore, they are entitled to gratuity as per the statutory provision. W.P.(C) No.4999 of 2009 3 2. The stand of the first respondent is that the petitioners worked under different contractors prior to the formation of the Society. The Society itself was formed for the welfare of the scattered workers and to put them under an umbrella of the Society and the Society had paid gratuity in accordance with the statutory provision after its formation. 3. According to the senior counsel, who argued on behalf of the first respondent that mere payment of exgratia taking note of the service under the contractor cannot be taken as an admission of the Society, the first respondent that the petitioners were engaged directly under them. 4. In the impugned order itself, it is referred that the petitioners admitted that they had worked under the contractor in 1971 and in 1990. The learned counsel for W.P.(C) No.4999 of 2009 4 the petitioners submits that there was no such admission. Anyhow, the question is whether when there is a serious question regarding the status of employer-employee relationship, whether the Gratuity Controller has jurisdiction to determine such relationship. 5. The stand of the first respondent is that the petitioners might have worked under the contractor and there was no employer-employee relationship. The case of the petitioners is that they worked under the first respondent directly. If the petitioners had worked directly under the first respondent, the formation of the Society and payment of gratuity by the Society does not arise. Assuming that the Society was formed as such to pass over the responsibility of the first respondent, there must be some evidence to show that there was an employeremployee relationship between the petitioners and the first W.P.(C) No.4999 of 2009 5 respondent. The Society, admittedly, came into existence only in the year 1990. 6. The learned counsel for the petitioners argument is that the Society is the baby of the first respondent. Therefore, there is no distinction between the first respondent and the second respondent in regard to the status of an employer and there was no difficulty for the Gratuity Controller to hold that there was employeremployee relationship. 7. There is a categorical denial on the side of the first respondent that the petitioners were never employed directly by them. Their precise case is that the contract was awarded to different contractors from time to time. The petitioners are all claimed to be the civil contract workers. W.P.(C) No.4999 of 2009 6 8. The jurisdiction of the Gratuity Controller is limited. No doubt, the Gratuity Controller has a power to consider whether a particular claimant before him is an employee or not. However, when there is a bona fide dispute as to the status, which cannot be determined through the process otherwise than envisaged under the law. 9. This Court in Food Corporation of India and Another v. V.Mohammed Manzil and Others [2008(1) ILR 158] held that a contract employee under the contractor is not entitled to gratuity from the principal employer. That means the petitioners will have to prove that they had worked under the first respondent directly. If the employer-employee relationship will have to be established between the parties, under any relevant provisions of law like Industrial Disputes Act and the W.P.(C) No.4999 of 2009 7 Contract Labour (Regulation and Abolition) Act etc., the Gratuity Controller cannot assume jurisdiction to decide such dispute. Considering the nature of the power conferred upon the Gratuity Controller, this Court is of the view that such disputes are beyond the scope of determination of the Gratuity Controller and the petitioners will have to move such other competent authority to determine their status and it is only after such declaration of the status as employees, they can claim gratuity from the first respondent. Therefore, this Court is of the view that both authorities had rightly rejected the claim of the petitioners. In fact, the Gratuity Controller had taken the view that the petitioners worked under the contractor and therefore, past service under the contractor cannot be reckoned for the purpose of determination of gratuity. Since the petitioners status has been disputed, this Court is W.P.(C) No.4999 of 2009 8 of the view that, that question can be left open and the petitioners are free to raise their objection in appropriate forum as to their status. The observation that the petitioners had worked under the contractor, therefore, will not have any significance if the petitioners want to have such declaration before the competent authority as to their status. With the above observations, this writ petition is dismissed. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln