KERALA STATE ROAD TRANSPORT CORPORATION v. STATE OF KERALA & OTHERS

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 594 OF 2018`** ## `PETITIONER:` ``` KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. ``` ``` BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TR P.C.SASIDHARAN ``` ## `RESPONDENT/S:` - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM - 695 001.` - `2 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT DEPUTY LABOUR COMMISSIONER THIRUVANANTHAPURAM - 695 001.` - `3 G. GANGADHARAN PILLAI PAVOOR VEEDU, UMMANNOOR P.O, KOLLAM DISTRICT - 691 520.` - `4 G. MURALEEDHARAN PILLAI, MURALI BHAVAN, ARAMPUNNA, ELAMBAL P.O, KOLLAM DISTRICT - 691 322.` - `5 G. RAJU, THUNDIL VEEDU, VILLOOR, VETTIKKAVALA P.O,` - `KOLLAM DISTRICT - 691 538.` - `6 K.C GEORGEKUTTY KIZHAKKEVILA PUTHEN VEEDU, KARANKODE P.O, CHATHANNOOR, KOLLAM DISTRICT - 691 579.` - `7 K. SIVADASAN MOTTAKKUNNIL PLAVILA VEEDU(KAUSTUBHAM), MELILA EAST,MELILA P.O, KUNNIKKODE, KOLLAM DISTRICT - 691 508.` - `8 C.P SIVAPRASAD, CHERUPALAKKOTTU VEEDU, PERINAD P.O, KOLLAM DISTRICT - 691 601.` WP(C) NO. 594 OF 2018 2 - `9 GIRIJA W/O. LATE SOMAN NAIR, 'SREENIVAS', VENKODE, CHERIYAKOLLA P.O, THIRUVANANTHAPURAM - 695 504.` - `10 S. SATHYADAS S/O. SAMUEL, KALLUVILA PUTHEN VEEDU, PANACHAMOODU P.O, VELLARADA, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 505.` - `11 J. NELSON S/O. JOSEPH, KIZHAKKUMKARA PUTHEN VEEDU, MANOOR, DALUMUGHAM .O, THIRUVANANTHAPURAM - 695 125.` - `12 V. SAMBASIVAN VARUVILA VEEDU, KARIMKULAM, PUTHIYATHURA P.O, THIRUVANANTHAPURAM - 695 526.` - `13 K. SACHIDANANDAN NAIR MUDUPPURA THATTIL VEEDU, KARIMKULAM, PUTHIYATHURA P.O, THIRUVANANTHAPURAM - 695 526.` - `14 P. NESAMANI ENNAVILA VEEDU, KAKKAVILA P.O, THIRUVANANTHAPURAM - 695 506.` - `15 M. SREENIVASAN ELAVANKUZHY VEEDU, AVANAKUZHI, THANNIMOODU P.O,THIRUVANANTHAPURAM - 695 123.` - `16 K. SIVASANKARA PILLAI` ``` S.N VIHAR, CHERIYAKONNI, THIRUVANANTHAPURAM - 695 013. ``` - `17 S. VIVEKANANDAN AMBALAMUTTAM, MNRA 20-G, KADAKAMPALLY ROAD, ANAYARA P.O, THIRUVANANTHAPURAM - 695 023.` - `18 B. JAYAPALAN CHITHRANJALI, POONKULAM, VELLAYANI P.O, THIRUVANANTHAPURAM - 695 522.` - `19 R. JANARDHANAN NAIR VEDARKONATH VEEDU, AJAYAPURAM, PANAYAMUTTAM P.O, PAZHAKUTTY, THIRUVANANTHAPURAM - 695 561.` WP(C) NO. 594 OF 2018 3 - `20 K. RAVEENDRAN SONIYA COTTAGE, DARSAN NAGAR, KUDAPPANAKUNNU P.O,THIRUVANANTHAPURAM - 695 043.` - `21 B. BABU 'RUDRAVEENA', KARIMPUVILA, SOUHRIDA GRAMAM, PARAVACHAMBALAM, NEMAM P.O, THIRUVANANTHAPURAM - 695 020.` - `22 T.A SURESH PALLITHARA HOUSE, JAYAPRAKASH LANE, KUDAPPANAKUNNU P.O,THIRUVANANTHAPURAM - 695 043.` - `23 MOHAN RAJ S KAVINPURATH PUTHEN VEEDU, PALLICHAL, NARUVAMOODU P.O,THIRUVANANTHAPURAM - 695 528.` - `24 B. RAVEENDRAN NAIR RAVEENDRAVILASOM, CHERIYAKONNI P.O, THIRUVANANTHAPURAM - 695 013.` - `25 B. VIJAYAKUMARAN NAIR VIJI BHAVAN, VENKOOR, MALAYAM P.O, THIRUVANANTHAPURAM - 695 571.` - `26 C. VIJAYAN CHETTIYAR THUNDU VILAKOM VEEDU, KIDARAKKUZHI, VENGANOOR P.O, THIRUVANANTHAPURAM - 695 523.` - `27 S. BABU PAZHAVILA VEEDU, PACHALOOR P.O, THIRUVANANTHAPURAM - 695 027.` - `28 FRANCIS XAVIOUR KEERTHI HOUSE, VIZHAVOOR, MALAYAM P.O, THIRUVANANTHAPURAM - 695 511.` - `29 P. RAMACHANDRAN NAIR KONATHU VEEDU, PAMAMKODE, ESTATE P.O, THIRUVANANTHAPURAM - 695 019.` - `30 R. CHANDRASENAN NAIR LEKSHMY NIVAS, PERUMTHOTTAM HOUSE, ESTAE P.O, POOZHIKUNNU, THIRUVANANTHAPURAM - 695 019.` - `31 V. JAYACHANDRAN ASHA BHAVAN, ARASUMMOODU, KULATHOOR P.O, THIRUVANANTHAPURAM - 695 583.` WP(C) NO. 594 OF 2018 4 - `32 B. SUDARSANA BABU THOPPIL VEEDU, KULATHOOR P.O, KAZHAKKOOTTAM, THIRUVANANTHAPURAM - 695 583.` - `33 V. RADHAKRISHNAN 'SARANG', JEEVAN NAGAR, PATTOM P.O, PRA - 44,THIRUVANANTHAPURAM.` - `34 C. HRISHIKESAN NAIR SIVA PRABHA, MANJAMCODE, NEDUMON, KALLAYAM P.O,THIRUVANANTHAPURAM - 695 043.` - `35 G. MOHANA PANICKER M.R NIVAS, THUNDATHIL P.O, KARYAVATTOM, THIRUVANANTHAPURAM - 695 581.` ``` 36J. RAMACHANDRAN S/O. JANARDHANAN PILLAI T.C 52/804, VILAYIL MELETHATTU PUTHEN VEEDU, POOZHIKUNNU, INDUSTRIAL ESTATE P.O, THIRUVANANTHAPURAM - 695 019. ``` - `37 P. RADHAKRISHNAN RENJANA NIVAS, T.C 30/1855-5, PETTAH P.O, MOONNAMMANAKKAL,THIRUVANANTHAPURAM DISTRICT.` - `38 B. BHUVANENDRAN NAIR NEDUMPURATH VEEDU, AYRA,KOLLA, PANAVOOR P.O,NEDUMANGAD, THIRUVANANTHAPURAM - 695 568.` - `39 P. SUDARSANAN S.S BHAVAN, ERINADU, PANAVOOR P.O, THIRUVANANTHAPURAM - 695 563.` - `40 N. RAJAGOPALAN NAIR KRISHNAVILASOM, MEMALA, VITHURA P.O, THIRUVANANTHAPURAM - 695 551.` - `41 G.SUDHAKARAN NAIR SREE GANGA NILAYAM, KODOOR, VENCODE P.O,THIRUVANANTHAPURAM - 695 028.` ``` 42K. HARIHARA KUMAR SARADA BHAVAN, GNRA - 12, KIZHAKKEKARA, KODUNGANNOOR P.O, VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 013. ``` - `43 R. RAVI, ISWARIYA, THENOOR P.O, THIRUVANANTHAPURAM - 695 563.` WP(C) NO. 594 OF 2018 5 - `44 S. SURENDRAN` ``` S.R NIVAS, VILAVOORKAL, MALAYINKEEZHU P.O, THIRUVANANTHAPURAM - 695 571. ``` - `45 D. MOHAN KENIYIL KULAVARAMBU VEEDU, T.C 11/1908, NANTHANCODE,KOWDIAR P.O,THIRUVANANTHAPURAM - 695 003.` - `46 P. MAHAVAN S/O. PODIKUTTY,MELE POZHINJANVILA VEEDU, KARODE, KAKKAVILA P.O,THIRUVANANTHAPURAM - 695 506.` - `47 CHRISTA KUMAR KALLUVILA PUTHEN VEEDU, AVANAKUZHI, NELLIMOODU P.O, THIRUVANANTHAPURAM - 695 524.` - `48 V. SREEKANTAN NAIR GEETHA BHAVAN, MEMALA P.O, VITHURA, THIRUVANANTHAPURAM - 695 551.` - `49 K.V VIJAYAKUMARAN NAIR SREESADANAM, ADIPARAMPU, MARUTHAMALA P.O, VITHURA,THIRUVANANTHAPURAM - 695 551.` - `50 C. MANI KAIRALI BHAVAN, VAYYET, KATTUVILAKOM, POKOTTUKONAM,VENJARAMOODU, THIRUVANANTHAPURAM - 695 607.` - `51 SYAMALA V W/O. LATE D.V SURENDRAN, ASWATHY BHAVAN, KUZHIVILA, OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM - 695 125.` - `52 A SUBRAMONIAN ACHARY NEDUMKOTTUVILA PUTHEN VEEDU, KOLIYOOR, MUTTAKKAD P.O, THIRUVANANTHAPURAM - 695 523.` ``` 53B. RAMACHANDRAN KIZHAKKETHIL PUTHEN VEEDU, THEEPUKAL, POTHENCODE P.O,THIRUVANANTHAPURAM - 695 584 ``` - `54 D. JAKUMAR` ``` V.J BHAVAN, SAGARA, PATHIRAPALLY, KUDAPPANAKUNNU P.O,THIRUVANANTHAPURAM DISTRICT - 695 043. ``` WP(C) NO. 594 OF 2018 6 ``` 55K. RADHAKRISHNAN 'SREYAS', A-20, KANAKA NAGAR, THIRUVANANTHAPURAM DISTRICT. ``` ``` 56G. VELAPPAN A.V BHAVAN, MUKKAMPALAVILA VEEDU, VENGANOOR P.O, THIRUVANANTHAPURAM DISTRICT. ``` ``` 57R.S NANDAKUMARAN NAIR 'SARANIKA', MITHRUMALA P.O, THIRUVANANTHAPURAM - 695 610.. ``` ``` BY ADVS. SRI. VENUGOPAL V., GOVERNMENT PLEADER SRI.K.P.RAJEEVAN SRI.N.SASIDHARAN UNNITHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 594 OF 2018 7 ## JUDGMENT This writ petition has been filed by the Kerala State Road Transport Corporation (KSRTC) challenging Ext.P5 order of Government of Kerala, Labour and Skill (D) Department and Ext.P9 order issued by the Controlling Authority, Thiruvananthapuram, under the Payment of Gratuity Act, 1972 (hereinafter referred to as ‘the 1972 Act’) adjudicating the claims of the party respondents to gratuity under the provisions of the 1972 Act. The brief facts are as follows:- 2. By Ext.P1 notification dated 04.04.2013, the Government of Kerala issued an order in terms of the provisions contained in sub-sections (1) and (3) of Section 5 of the 1972 Act exempting the employees of the KSRTC from the provisions of the 1972 Act on the ground that the employees are obtaining better terms under the Kerala Service Rules. The persons like the party respondents, who were rendering service as empanelled conductors and drivers, are not part of the regular establishment of the KSRTC and they are not entitled to pension and DCRG or any other benefits in terms of the provisions contained in the Kerala WP(C) NO. 594 OF 2018 8 Service Rules. Therefore, the question arose as to whether in respect of such persons, the provisions of the 1972 Act would continue to operate. This Court at the instance of some of the affected parties, directed the Government to take a decision in the matter. By Ext.P5 order dated 12.05.2015, the Government in the Labour and Skills (D) Department held that empanelled conductors and drivers would continue to be entitled to the benefits under the 1972 Act, subject to the condition that they satisfy the conditions for payment of gratuity in terms of the provisions contained in the 1972 Act. Following Ext.P5 Government Order, the party respondents raised a claim before the controlling authority, which was adjudicated in terms of Ext.P9 finding each of them entitled to gratuity in the amounts set out in that order. The order is challenged principally on two grounds. It is submitted that Ext.P5 Government order holding that the persons like the party respondents are entitled to gratuity is not sustainable in law as an order in terms of the provisions contained in Section 5 of the 1972 Act should have been issued as a statutory order and should have been published in the gazette as was done in the case of Ext.P1. Secondly, it is submitted WP(C) NO. 594 OF 2018 9 that without considering the individual cases to determine whether the party respondents are entitled to payment of gratuity, the controlling authority has passed an omnibus order finding that the party respondents are entitled to payment of gratuity. It is submitted that even in terms of Ext.P5 order, persons like the party respondents may be entitled to gratuity only if they satisfy the conditions of eligibility and there could not have been an omnibus order finding that the party respondents were entitled to payment of gratuity without first establishing with reference to the service details of each one of them that they were entitled to gratuity. It is specifically pointed out that in Ext.P9 order, the controlling authority has specifically found that at least some among the claimants have not completed 240 days of service in a year and still proceeded to hold that such persons are entitled to gratuity. It is submitted that in terms of the Division Bench judgment of this Court in Velukutty Achary v. Harrisons Malayalam Ltd. [1992 (2) KLT 622], the party respondents were not entitled to payment of gratuity. 3. The learned Government Pleader appearing for the official respondents would submit that the contention WP(C) NO. 594 OF 2018 10 taken on behalf of the petitioner that Ext.P5 order should have been issued as a statutory order by publishing the same in the gazette, cannot be accepted. It is submitted that Ext.P5 can only be treated as an order clarifying that the exemption in terms of Ext.P1 order is only in respect of regular employees of the KSRTC, who are entitled to pension, gratuity etc in terms of the provisions contained in the Kerala Service Rules. It is submitted that, in such circumstances, Ext.P5 Government Order cannot be said to be illegal in any manner. 4. The learned counsel appearing for the party respondents would submit that there is no illegality whatsoever in Ext.P9 order issued by the controlling authority. It is submitted that if the petitioner was in any manner aggrieved by the order of the controlling authority, it should have approached the appellate authority in terms of the provisions contained in the 1972 Act instead of filing a writ petition under Article 226 of the Constitution of India. It is submitted that the argument of the learned counsel for the petitioner that Ext.P9 order is an omnibus consideration of the eligibility, cannot be accepted. It is pointed out that each WP(C) NO. 594 OF 2018 11 of the party respondents had filed separate applications giving details of their service and it is after perusing these documents that the controlling authority had come to the conclusion that the party respondents were entitled to payment of gratuity. 5. Having heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned counsel appearing for the party respondents, I am of the view that the petitioner has not made out any case for interference with Ext.P5 order of the Government. As rightly pointed out by the learned Government Pleader, Ext.P5 order is only an order which clarifies Ext.P1 order of exemption from the provisions of the 1972 Act. It is evident from the explanatory note to Ext.P1 that it will apply only to regular employees of the KSRTC, who are entitled to pension, DCRG and other benefits under the Kerala Service Rules. Therefore, the fact that Ext.P5 is not issued as a statutory order under the 1972 Act does not affect its validity. Therefore, the challenge to Ext.P5 Government Order is rejected. Coming to the validity of Ext.P9, I am constrained to observe that the controlling authority cannot in an omnibus manner WP(C) NO. 594 OF 2018 12 adjudicate the eligibility of the party respondents to gratuity. Considering the nature of service rendered by the empanelled conductors / drivers, the controlling authority will have to determine, with reference to the service details of each of the party respondents, as to whether they had qualifying service or eligible service for the purposes of payment of gratuity under the 1972 Act. A reading of Ext.P9 does not show that the controlling authority had considered the matter with reference to the individual service details of each of the party respondents. For this reason, Ext.P9 is to be set aside. The contention of the learned counsel appearing for the party respondents that Ext.P9 ought to have been challenged by filing a statutory appeal also does not appeal to this Court for more than one reason. It is settled law that the rule of alternate remedy is only a rule of discretion and does not affect the jurisdiction of this Court under Article 226 of the Constitution of India. Further, after having admitted this writ petition in the year 2018, it would not be appropriate for this Court to now relegate the petitioner to the alternate remedy, especially after having found that Ext.P9 order cannot be sustained as it is an omnibus order, which does not determine WP(C) NO. 594 OF 2018 **==> picture [13 x 10] intentionally omitted <==** the eligibility of the individual party respondents to the payment of gratuity. Therefore, the writ petition is allowed to the extent of setting aside Ext.P9 order. The claims of the party respondents under the 1972 Act shall stand restored to the file of the 2[nd] respondent. The 2[nd] respondent shall adjudicate the claims of the party respondents individually with notice to the petitioner and to the individual claimants. The challenge to Ext.P5 order is repelled. The writ petition is disposed of accordingly. Sd/- GOPINATH P. JUDGE DK WP(C) NO. 594 OF 2018 14 ## **`APPENDIX OF WP(C) 594/2018`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUECOPYTHENOTIFICATION NO.G.O(P)NO.45/2013/LBRDATED 4.4.2013 ``` ``` EXHIBIT P2TRUE COPY OF EXT.P7 REPRESENTATION DATED 5.9.2014 IN W.P(C) NO. 25396/2014. ``` ``` EXHIBIT P3TRUE COPY OF THE JUDGMENT DATED 30.9.2014 IN W.P(C) NO.25396/2014. ``` ``` EXHIBIT P4TRUE COPY OF THE OBJECTION DATED 23.10.2014 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ``` ``` EXHIBIT P5TRUE COPY OF G.O(MS) NO.53/2015/LBR DATED 12.5.2015. ``` ``` EXHIBIT P6TRUE COPY OF G.C NO.78/2013 FILED BY THE 9TH RESPONDENT BEFORE THE 2ND RESPONDENT. ``` - **`EXHIBIT P7 TRUE COPY OF G.C NO.79/2013 FILED BY THE 10TH RESPONDENT BEFORE THE 2ND RESPONDENT.`** - **`EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED 30.5.2016 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN G.C NO.78/2013.`** ``` EXHIBIT P9TRUE COPY OF THE ORDER DATED 29.4.2017 PASSED BY THE 2ND RESPONDENT IN G.C NO.78/2013 AND CONNECTED CASES. ``` WP(C) NO. 594 OF 2018 15 ``` EXHIBIT P10 ``` ``` TRUE COPY OF THE ORDER DATED 25.4.2017 IN G.C NO. 22/2016 PASSED BY THE DEPUTY LABOUR COMMISSIONER, PALAKKAD. ``` ``` EXHIBIT P11 ``` ``` TRUE COPY OF ORDER DATED 25.4.2017 IN G.C NO. 29/2016 PASSED BY THE DEPUTYLABOURCOMMISSIONER, PALAKKAD. ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R3(a) ``` ``` TRUE COPY OF THE ATTENDANCE STATEMENT OF THE 3RD RESPONDENT ISSUED FROM THE KSRTC ``` - **`EXHIBIT R3(b) TRUE COPY OF THE COMMON JUDGMENT OF THIS HONOURABLE COURT DATED 13.1.2014 IN WA NO.39/2014`** - **`EXHIBIT R3(c) TRUE COPY OF THE COMMON ORDER DATED 6.5.2014 OF THE HON'BLE SUPREME COURT IN SLP NOS.11379-11385/2014`** ``` EXHIBIT R3(d)TRUE COPY OF THE ORDER DATED 31. 5.2014 ISSUED FROM THE KSRTC ``` ``` EXHIBIT R3(e)TRUE COPY OF THE ORDER DATED 12.11.2015OFTHEAPPELLATE AUTHORITY ``` ``` EXHIBIT R3(f)TRUE COPY OF THE JUDGMENT REPORTED IN 1992(2)KLT 622 ``` ``` EXHIBIT R3(g)TRUE COPY OF THE JUDGMENT REPORTED IN 2001-(II)-LLJ 520 ``` ``` EXHIBIT R3(h)TRUE COPY OF THE REPORTED IN 2015 LLR 610 ``` ``` EXHIBIT R3(i)TRUE COPY OF THE ATTENDANCE STATEMENT ISSUED FROM THE KSRTC IN RESPECT OF RESPONDENT NO.56 ``` WP(C) NO. 594 OF 2018 16 ``` EXHIBIT R3(j)TRUE COPY OF THE RELEVANT PAGES OF THE PAY REVISION AGREEMENT 2012 ISSUED BY THE KSRTC EXHIBIT R3(k)TRUE COPY OF THE JUDGMENT REPORTED IN 2017 LLR 943 EXHIBIT R3(l)TRUE COPY OF THE JUDGMENT REPORTED IN 2017 LLR 1058 ```