Mini Devadas v. Joint Registrar [General], Co-operative Societies, Kottayam; Kottayam Co-operative Urban Bank Ltd., No. 421; Life Insurance Corporation of India (LIC)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939 WP(C).No. 5069 of 2018** **PETITIONER:** **MINI DEVADAS, AGED 59 YEARS, W/O.SOMAKUMAR P.K, 'RETIRED CHIEF ACCOUNTANT', KOTTAYAM CO-OPERATIVE URBAN BANK LTD.NO.421, HEAD OFFICE, THIRUNAKKARA, KOTTAYAM DISTRICT, PIN-686 001, RESIDING AT 'THUSHARA', THIRUNAKKARA, KOTTAYAM DISTRICT,PIN-686 001.** **BY ADVS.SRI.S.JAYAKRISHNAN SRI.S.PARAMESWARA PRASAD** **RESPONDENT(S):** **1. THE JOINT REGISTRAR [GENERAL], CO-OPERATIVE SOCIETIES, KOTTAYAM-686 002.** **2. KOTTAYAM CO-OPERATIVE URBAN BANK LTD. NO. 421, REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, THIRUNAKKARA, KOTTAYAM DISTRICT, PIN-686 001.** **3. LIFE INSURANCE CORPORATION OF INDIA [LIC], REPRESENTED BY ITS MANAGER [P&GS] UNIT [G-603], LIFE INSURANCE CORPORATION OF INDIA LTD, JEEVAN JYOTHI, II FLOOR, STAR JUNCTION, KOTTAYAM- 686 001.** **R1 BY SR GOVERNMENT PLEADER SRI.K.P.HARISH R2 BY SRI.SURIN GEORGE IYPE,SC, R3 BY SRI.S.EASWARAN, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 27/02/2018** ## **WP(C).No. 5069 of 2018 (G)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. COPY OF COMMUNICATION DATED 25.10.16 ISSUED BY THE MANAGER [P&GS] LIC, KOTTAYAM TO THE 2ND RESPONDENT.** **EXHIBIT P2. COPY OF JUDGMENT DATED 6.10.17 IN WPC.NO.13407/2017[A] OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts 27/02/2018** ## **ANIL K. NARENDRAN, J.** **-----------------------------------------------W.P.(C) No.5069 of 2018** ## **-----------------------------------------------Dated this the 21[st] day of February, 2018** ## **JUDGMENT** The petitioner, who retired from service while working as Chief Accountant in the second respondent Co-operative Bank on 31.10.2016, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the first respondent to ensure that the second respondent Society pays a sum of Rs.14,71,349/-, together with interest thereon from 01.11.2016 towards the gratuity payable to the petitioner. The petitioner has also sought for a consequential declaration. 2. On 15.02.2018, when this writ petition came up for admission, the learned counsel for the second respondent and the learned Standing Counsel for the third respondent sought time to get instructions. W.P.(C) No.5069 of 2018 :-2-: 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the first respondent, the learned Standing Counsel for the second respondent Bank and also the learned Standing Counsel for the third respondent Life Insurance Corporation of India (LIC). 4. Going by the averments in the writ petition, the petitioner who entered service of the second respondent Society as Junior Clerk on 18.12.1985 retired from service on superannuation on 31.10.2016, while working as Chief Accountant, after rendering service for 31 years. The second respondent Society had its liability to pay the gratuity to its employees insured as per the Employees Group Gratuity Life Assurance Scheme formulated by the Life Insurance Corporation Limited (LIC). In the case of the petitioner, the LIC forwarded a sum of Rs.14,71,349/- to the second respondent Society towards gratuity, as evidenced from Ext.P1 communication dated 25.10.2016. However, the second respondent Society released only a W.P.(C) No.5069 of 2018 :-3-: sum of Rs.10,00,000/- to the petitioner as gratuity, in view of the provisions contained in the second proviso to Rule 59(iii) of the Kerala Co-operative Societies Rules. 5. The issue raised in this Writ Petition regarding the entitlement of the employees of the Co-operative Societies covered by the provisions under the Payment of Gratuity Act to receive better terms under Section 4(5) of the said Act is now settled by the decision of the Full Bench of this Court in **Chandrasekharan Nair G. and others v. Kerala State Co-operative Agricultural and Rural Development Bank Ltd. and others (2017 (4) KLT 276)** . Paragraphs 5 to 8 of the said decision read thus; “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 Section 4(5) of the Central Act. Any deficit in the amount due as gratuity to the employee after payment by the insurer has to be met by the employer only as the W.P.(C) No.5069 of 2018 :-4-: liability squarely rests on him under Section 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 Rule 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 Section 4(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 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 Section 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 W.P.(C) No.5069 of 2018 :-5-: 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." 6. The co-operative societies wherein the employees are engaged is Entry 32 of List II - State List and gratuity to which a claim is laid is Entry 24 of List III - Concurrent List of the Seventh Schedule to the Constitution of India. The Central Act which is the law made by the Parliament shall prevail over the law made by the Legislature of the State i.e. the second proviso to Rule 59(iii) of the Rules. The inconsistency between laws made by Parliament and laws made by the Legislatures of States can be ironed out by calling in aid Article 254 of the Constitution of India. The same reads as follows: "254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the W.P.(C) No.5069 of 2018 :-6-: provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." There is no case that the second proviso to Rule W.P.(C) No.5069 of 2018 :-7-: 59(iii) of the Rules made by the Legislature of the State has received the assent of the President in order to prevail in the State under Article 254(2) of the Constitution of India. Every amendment to the State Act or the Rules has also to obtain the assent of the President which is absent in regard to the second proviso to Rule 59(iii) of the Rules. The irresistible conclusion is that Section 4(5) of the Central Act which enables an employee to opt for a better terms of gratuity will prevail over the second proviso to Rule 59(iii) of the Rules. Only the case of employees who are both covered under the Central Act and the Rules framed under the State Act is dealt with in this bunch of writ petitions since the Central Act does not apply to all establishments. Section 1(3)(b) of the Central Act is categoric that the same applies only to an establishment in which ten or more persons are employed or were employed during the preceding twelve months. 7. The dominant intention of the Central Act is to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments. The dominant intention of the State Act is to provide for the orderly development of the co-operative societies in the State as selfgoverning democratic institutions. A provision in the W.P.(C) No.5069 of 2018 :-8-: Central Act to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision in the State Act. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2) of the Constitution. We shall quote the decision in Vijay Kumar Sharma v. State of Karnataka, 1990 KHC 805 wherein it is held as follows: "53. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention i.e. the pith and substance of the two legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the W.P.(C) No.5069 of 2018 :-9-: same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the article." (emphasis supplied) There is no repugnancy (in the sense that one Act cannot be obeyed without disobeying the other) and therefore every endeavor has to be made to reconcile the provisions and give a harmonious construction. 8. The following decisions were cited at the Bar by the counsel for either sides: - (i) Retnavalli v. Ambalapadu Service Cooperative Bank Ltd. [2005 (3) KLT 320] - (ii) Nedupuzha Service Co-operative Bank Ltd. v. Rugmini [2011 (3) KLT 134 (DB)] - (iii) Mathew Korah v. Kaduthuruthy Urban W.P.(C) No.5069 of 2018 :-10-: Co-operative Bank [2013 (4) KLT 558] (iv) The Travancore Cements Employees' Co-operative Bank Ltd. v. Ramachandran Nair [2014 (1) KLT 889 (DB)] and (v) Life Insurance Corporation of India v. K.P.Varughese [ILR 2015 (3) Kerala 420 (DB)]. None of the above decisions dealt with the second proviso to Rule 59(iii) of the Rules substituted with effect from 2.11.2010 only and hence do not help to resolve the controversy in this bunch of cases. The second proviso to Rule 59(iii) of the Rules referable to the amount received out of any scheme implemented by a society shall be construed in the context explained above. The employee in other words is entitled to the higher amount if he has opted in terms of Section 4(5) of the Central Act even if a lesser amount is due under Section 4(2) thereof. The decision in Nedupuzha's case (supra) to the extent that excess amount if any received by the employer under the policy would inure to the employee is affirmed. The said decision does not lay down the proposition that the entitlement of the employee is confined to the amount received under the policy even if it falls short of the statutory limit. Circular No.5/2016 and similar circulars issued by the Registrar of Co-operative Societies stem out of a W.P.(C) No.5069 of 2018 :-11-: misconception of the statutory provisions and are quashed to this extent. The reference is answered accordingly and the writ petitions shall be posted before the single Judge as per roster for disposal dependent on individual facts.” 6. In **Chandrasekharan Nair's case (supra)** , the Full Bench of this Court held that, 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 Section 4(5) of the Central Act. Any deficit in the amount due as gratuity to the employee after payment by the insurer has to be met by the employer only as the liability squarely rests on him under Section 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 Section 4A of the Central Act is W.P.(C) No.5069 of 2018 :-12-: only to facilitate the employer to discharge his liability and the premium paid is part of the wages only. 7. In **Chandrasekharan Nair's case (supra)** the Full Bench held further that, the wording of the second proviso to Rule 59(iii) of the Rules, of course, 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 Section 4(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 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 Section 14 of the Central Act. The Co-operative Societies wherein the employees are engaged is Entry 32 of List II-State List and gratuity to which a claim is laid is Entry 24 of List III-Concurrent List of the Seventh Schedule to the W.P.(C) No.5069 of 2018 :-13-: Constitution of India. The Central Act, which is the law made by the Parliament shall prevail over the law made by the Legislature of the State, i.e., the second proviso to Rule 59(iii) of the Rules. The inconsistency between laws made by Parliament and laws made by the Legislatures of States can be ironed out by calling in aid Article 254 of the Constitution of India. There is no case that the second proviso to Rule 59(iii) of the Rules made by the Legislature of the State has received the assent of the President in order to prevail in the State under Article 254(2) of the Constitution of India. Every amendment to the State Act or the Rules has also to obtain the assent of the President which is absent in regard to the second proviso to Rule 59(iii) of the Rules. Therefore, the irresistible conclusion is that Section 4(5) of the Central Act, which enables an employee to opt for a better term of gratuity will prevail over the second proviso to Rule 59(iii) of the Rules. 8. In **Chandrasekharan Nair's case (supra)** , the Full Bench held that, the second proviso to Rule 59(iii) of W.P.(C) No.5069 of 2018 :-14-: the Rules referable to the amount received out of any scheme implemented by a society shall be construed in the context explained above. The employee in other words is entitled to the higher amount if he has opted in terms of Section 4(5) of the Central Act even if a lesser amount is due under Section 4(2) thereof. The Full Bench affirmed the decision of the Division Bench in **Nedupuzha's case (2011** **(3) KLT 134)** to the extent that excess amount, if any, received by the employer under the policy would inure to the employee. The Full Bench noticed that, the said decision does not lay down the proposition that the entitlement of the employee is confined to the amount received under the policy, even if it falls short of the statutory limit, and that, Circular No.5/2016 and similar circulars issued by the Registrar of Co-operative Societies stem out of a misconception of the statutory provisions and are therefore quashed to that extent. The Full Bench has made it clear that, it has dealt with only the case of employees who are both covered under the Central Act and the Rules framed W.P.(C) No.5069 of 2018 :-15-: under the State Act, since the Central Act does not apply to all establishments. 9. In view of the law laid down by the Full Bench of this Court in **Chandrasekharan Nair's case (supra)** , an employee of a Co-operative Society, who is covered both under the Payment of Gratuity Act, 1972 and the Kerala Cooperative Societies Rules, 1969 framed under the Kerala Co-operative Societies Act, 1969 is entitled to the higher amount, if he has opted in terms of Section 4(5) of the Payment of Gratuity Act, even if a lesser amount is due under Section 4(2) thereof. Therefore, the excess amount, if any, received by the employer Society under the policy would inure to the benefit of such an employee. In such circumstances, this writ petition is disposed of by directing the first respondent to take necessary steps to ensure that the second respondent Society pays an amount of Rs.4,71,349/- (Rupees four lakh seventy one thousand three hundred and forty nine only) to the petitioner towards the balance amount of gratuity received from the LIC, W.P.(C) No.5069 of 2018 :-16-: together with interest at the rate of 9% per annum from 25.10.2016, the date of Ext.P1, within a period of two months from the date of production of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN, JUDGE** bpr //TRUE COPY// P.A. TO JUDGE