Saramma Cherian v. The Manager, Girideepam Higher Secondary School, Vadavathoor; and The Controlling Authority under the Payment of Gratuity Act (Deputy Labour Commissioner, Kottayam at Ettumanoor)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944`** ## **`WP(C) NO. 7712 OF 2021`** ## **`PETITIONER:`** ``` SARAMMA CHERIAN AGED 71 YEARS WIFE OF CHERIAN, RESIDING AT PARUVAKKULAM HOUSE, P.O. VELOOR, KOTTAYAM-686 003. ``` ``` BY ADVS. JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ``` ## **`RESPONDENTS:`** - `1 THE MANAGER, GIRIDEEPAM HIGHER SECONDARY SCHOOL VADAVATHOOR P.O., KOTTAYAM-686 010.` - `2 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT (DEPUTY LABOUR COMMISSIONER, KOTTAYAM AT ETTUMANOOR), NEAR MAHADEVA TEMPLE, ETTUMANNOR-686 631.` ``` BY ADV LIJI.J.VADAKEDOM ``` ``` SR.G.P.K.M.RASHMI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 7712 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** Petitioner workman approached the controlling authority under the Payment of Gratuity Act alleging the non-payment of the gratuity. After having closed the evidence the respondents produced the following list of documents: |No|Date|Description|Executed by|Executed to| |---|---|---|---|---| |1|Various|True extracts of|Applicants|Opposite Party| ||dates|acquittance registers||| |||showing last drawn wages||| |||of the applicants Nos.22||| |2|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||14-5-2014|Ktm|| |3|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||06-1-2015|Ktm|| |4|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||15-2-2014|Ktm|| |5|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||16-4-2016|Ktm|| |6|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||19-4-2016|Ktm|| |7|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||28-10-2013|Ktm|| |8|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||25-3-2015|Ktm|| |9|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||09-5-2014|Ktm|| |10|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||25-5-2015|Ktm|| |11|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||20-5-2014|Ktm|| |12|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||27-7-2013|Ktm|| |13|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||07-4-2016|Ktm|| |14|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||03-6-2014|Ktm|| |15|05-12-2020|Statement of accounts of|South Indian Bank,|Opposite Party| |||22-5-2014|Ktm|| ``` WP(C) NO. 7712 OF 2021 ``` ``` 3 ``` - 16 05-12-2020 Statement of accounts of South Indian Bank, Opposite Party 15-5-2004 Ktm - 17 08-12-2020 Statement of accounts of South Indian Bank, Opposite Party 27-6-2013 Ktm - 18 08-12-2020 Bank Statement showing South Indian Bank, Opposite Party payment of gratuity Ktm - amounts to 14 Applicants by closing fixed deposits - 19 08-12-2020 Bank Statement showing Catholic Syrian Opposite Party payment of gratuity Bank,Kalathipady - amounts to 6 Applicants by closing fixed deposits 2. When the aforementioned application was moved an affidavit Ext.P5 was filed on behalf of the management to the same effect. The affidavit was objected to by the petitioner on the mode of proof of the documents on the premise that once the affidavit in evidence, after the amendment caused in the Civil Procedure Code as the evidence has to be taken by affidavit, the documents should be either in original or there has to be an undertaking of producing original documents on record as at the time of the cross examination, if wanting, the same cannot be taken on record. Keeping in view that, aforementioned objection was taken. The application is still pending but the controlling authority is proceeding ahead with the trial of the case which has seriously prejudiced the right of the petitioner. ``` WP(C) NO. 7712 OF 2021 ``` ``` 4 ``` 3. Learned counsel appearing on behalf of the respondents submits that the controlling authority is not a court as per the provisions of Section 1 of the Indian Evidence Act. Quasi-Judicial Authorities cannot also be rendered as a court in terms of the judgment of Supreme Court in _**State of Mysore and Others**_ v. _**Shivabasappa Shivappa Makapur**_ [AIR 1963 SC 375]. As per the provisions of Section 7(5) of the Payment of Gratuity Act, 1972, the Controlling Authority has only about to take evidence by way of an affidavit and not in the manner and mode as provided under the Code of Civil Procedure as tried to be projected by the petitioner. In other words, the controlling authority would not have the trapping of the Civil Court. Since the acquaintance registers are required to be kept in the office for other purposes, photocopies were brought on record but undertakes to bring on record at the time of examination/cross examination of the witness of the management. 4. I have heard the learned counsel for the parties and appraised the paper book and am of the view that there is force and substance in the submission of learned counsel representing ``` WP(C) NO. 7712 OF 2021 ``` ``` 5 ``` the work man – petitioner. The powers for the controlling authority to take the evidence is prescribed under Section 7(5). The said provision cannot be read into isolation as the procedure for taking the evidence has also been laid down in Rule 14 of the Payment of Gratuity Rules, 1972. Both provisions, Section 7 and Rule 14 read as under: ## **7. Determination of the amount of gratuity.** (1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. (2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount gratuity so determined. (3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable. (3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in subsection (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, ``` WP(C) NO. 7712 OF 2021 ``` ``` 6 ``` simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify: **Provided** that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.] (4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. (b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.] (c)] The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.] (d)The controlling authority shall pay the amount deposited, ``` WP(C) NO. 7712 OF 2021 ``` ``` 7 ``` including the excess amount, if any, deposited by the employer, to the person entitled thereto. (e)As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit - (i) to the applicant where he is the employee; or (ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity. (5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely : (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents, (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses. (6) Any inquiry under this section shall be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code, 1860 (45 of 1860). (7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such ``` WP(C) NO. 7712 OF 2021 ``` ``` 8 ``` other authority as may be specified by the appropriate Government in this behalf: **Provided** that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days. **Provided further** that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate authority such amount.] 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. 5. On joint reading of the aforementioned provisions, it is evident that controlling authority is not denuded but is empowered either suo motu or on receipt of the application by any of the parties to summon the witness for the purpose of the examination. ``` WP(C) NO. 7712 OF 2021 ``` ``` 9 ``` Since the learned counsel for the management had undertaken to produce the original acquaintance registers the objection and the apprehension no longer subsists as being acceded to. The management is directed to produce the original acquaintance registers at the time of cross examination. As far as the objection with regard to the certified copies of the statement of accounts from serial No.2 to 19 extracted above, they are permissible in evidence as per the provisions of Section 34 of the evidence Act. Therefore, the petitioner cannot be permitted to take the objection in terms of those documents, thus said argument is rejected. In view of the observation made hereinabove, the writ petition stands disposed off. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 7712 OF 2021 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 7712/2021`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1THE TRUE COPY OF THE APPLICATION NO.GC 149/2017 DATED 16.9.2017 (FORM N) SUBMITTED BY THE PETITIONER BEFOR ETHE 2ND RESPONDENT. ``` - `EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 20.2.2018 FILED BY THE IST RESPONDENT.` - `EXHIBIT P3 THE TRUE COPY OF JOINT TRIAL APPLICATION FILED BY THE PETITIONER.` - `EXHIBIT P4 THE TRUE COPY OF THE LIST OF DOCUMENTS PRODUCED BY THE IST RESPONDENT.` - `EXHIBIT P5 THE TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE IST RESPONDENT BEFOR ETHE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.` - `EXHIBIT P6 THE TRUE COPY OF THE OBJECTION DATED 12.1.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` - `EXHIBIT P7 THE TRUE COPY OF THE REVIEW PETITION DATED 2.3.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` - `EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT DATED 9.3.2021 IN WPC NO.6018/2021 OF THIS HON'BLE COURT.` ``` Exhibit P9THE TRUE COPY OF THE WITNESSES SCHEDULE FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 08/05/2018. Exhibit P10THE TRUE COPY OF THE WITNESSES SCHEDULE FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 11/11/2019. ```