The Manager, Pattumallay Estate, Karadikuzhi P.O., Peerumedu, Idukki District - 685531 and The Managing Director, Harrisons Malayalam Limited, Willingdon Island, Bristow Road, Kochi - 682003 Represented by its Senior Manager (Legal) v Lakshmi, C.R.No.4849, Pattumallay Estate, Karadikuzhi P.O., Peerumedu, Idukki District - 685531; Deputy Labour Commissioner, Kottayam - 686 002; District Collector, Ernakulam, Kakkanad - 682 030; District Collector, Idukki, Painavu - 685 531; Special Tahsildar, Revenue Recovery, Kochi Taluk - 682 030, Ernakulam; Deputy Tahasildar, Peermade Taluk, Peermade - 685 531, Idukki; Village Officer, Thoppumpady - 682 007, Ernakulam; Village Officer, Peermade - 685 531, Idukki

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **WP(C).No.31282 OF 2019(I)** ## **PETITIONERS:** - **1 THE MANAGER, PATTUMALLAY ESTATE, KARADIKUZHI P.O., PEERUMEDU, IDUKKI DISTRICT - 685 531.** - **2 THE MANAGING DIRECTOR, HARRISONS MALAYALAM LIMITED, WILLINGDON ISLAND, BRISTOW ROAD, KOCHI - 682 003 REPRESENTED BY ITS SENIOR MANAGER (LEGAL).** - **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** ## **RESPONDENTS:** - **1 LAKSHMI, C.R.NO.4849, PATTUMALLAY ESTATE, KARADIKUZHI P.O., PEERUMEDU, IDUKKI DISTRICT - 685 531.** - **2 THE DEPUTY LABOUR COMMISSIONER, KOTTAYAM - 686 002. (Controlling Authority UNDER PAYMENT OF GRATUITY ACT, 1972)** - **3 THE DISTRICT COLLECTOR, ERNAKULAM, KAKKANAD - 682 030.** - **4 THE DISTRICT COLLECTOR, IDUKKI, PAINAVU - 685 531.** - **5 SPECIAL TAHSILDAR, REVENUE RECOVERY, KOCHI TALUK - 682 030, ERNAKULAM.** W.P.(C) No.31282/2019 2 **6 DEPUTY TAHASILDAR, PEERMADE TALUK, PEERMADE - 685 531, IDUKKI. 7 VILLAGE OFFICER, THOPPUMPADY - 682 007, ERNAKULAM.** **8 VILLAGE OFFICER, PEERMADE - 685 531, IDUKKI.** **R1 BY ADV. SRI.C.S.MANILAL R1 BY ADV. SRI.M.K.SUBHAKARAN R1 BY ADV. SRI.SABU S.KALLARAMOOLA R1 BY ADV. SRI.S.NIDHEESH** ## **SRI.RON BASTION, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.31282/2019 3 ## **JUDGMENT** This Writ Petition is filed by the petitioners under Article 226 of the Constitution of India challenging Exhibits P4 and P8 orders passed by the Controlling Authority under Section 7 of the Payment of Gratuity Act, 1972, on an application filed by the 1[st] respondent herein, and the consequential proceedings initiated by the respondents 6 to 8 for realizing the amounts under the Revenue Recovery Act, 1968. 2. The records reveal that the 1[st] respondent approached the 2[nd] respondent under Section 7(4)(b) of the Payment of Gratuity Act claiming a sum of Rs.1,12,149/- together with interest contending that she had entered into service with the petitioners on 1.1.1984 and superannuated on 31.12.2014. It was asserted that her last drawn salary was Rs.249.22/-. 3. The parties entered appearance before the 2[nd] respondent on 9.2.2016. Thereafter, though the case was posted on numerous occasions, the petitioners neither filed their vakalath nor did they file their objections. Finally, on 9.3.2018, the petitioners were declared ex parte and on 17.3.2018, the 1[st] respondent was examined as AW1 and Exts.A1 to A3 were marked on her side. W.P.(C) No.31282/2019 4 After evaluating the evidence adduced, the 2[nd] respondent held that the 1[st] respondent was entitled to receive a sum of Rs.1,12,149/- by way of gratuity together with interest at the rate of 10% per annum with effect from the next date of retirement of the 1[st] respondent. 4. Later, complaining of non-payment, the 1[st] respondent approached the authority and though notice was issued to the petitioners by the 2[nd] respondent, the payment as ordered, was not made. The petitioners, in the meantime, filed an application to set aside the ex parte order. They later approached this Court and filed a writ petition complaining that recovery proceedings were being proceeded with, without considering their application for setting aside the ex parte order. This Court by Ext.P10 judgment dated 18.7.2019, directed the 2[nd] respondent to consider the application and it was also ordered to keep the recovery proceedings in abeyance till then. 5. The 2[nd] respondent took up the application and by Ext.P8 order held that that the application was one without merits and the same was dismissed. 6. The learned counsel appearing for the petitioners submitted that the 2[nd] respondent was not justified in dismissing the application on the ground that an application for condonation of delay was not filed along with the petition to set aside the ex parte order. It is further contended that the 1[st] respondent was W.P.(C) No.31282/2019 5 a temporary worker from 2001 to 2011 and that during the period of her service, she had not worked for 240 days in any of the years. It is further contended that she was made permanent only on 2011 and had superannuated in the year 2014. Since she had not worked for a period of five years in the service of the petitioners as a permanent worker, she is not entitled to gratuity, contends the learned counsel. It is further submitted that the dismissal of the application on the ground that the petitioners are guilty of laches and lack of diligence was unwarranted. The learned counsel requested that the matter be remitted back for reconsideration. 7. The learned counsel appearing for the 1[st] respondent, on the other hand, pointed out that the 1[st] respondent is now aged 64 years and she had superannuated after rendering about 30 years of service. He points out that the fact that she had worked as a worker in the service of the petitioners is admitted. The learned counsel has also relied on the decision of the Hon’ble Supreme Court in **Jaswant Sugar Mills Ltd., Meerut v. Shri Badri Prasad and Others[1]** to bring home his point that to be a permanent workman it is not necessary that the workman should be engaged throughout the year. Referring to Ext.P8 order, it is submitted by the learned counsel that the laches on the part of the petitioners is quite apparent and though numerous opportunities were granted, after the parties had entered appearance on 9.2.2016, the petitioners 1 [AIR 1967 SC 513] W.P.(C) No.31282/2019 6 herein neither filed their objection nor did they contest the matter on its merits. Finally, it is submitted that a sum of Rs.1,75,417/- has already been recovered from the petitioners by the revenue authorities and this fact is evident from Ext.R1(b) obtained under the Right to Information Act. By remitting the matter back , the agony and hardship of the indigent worker will only be prolonged and the same may not be allowed , contends the learned counsel. 8. I have anxiously considered the submissions advanced by both sides and have gone through the materials on record. 9. The Payment of Gratuity Act is a piece of social welfare legislation and deals with the payment of gratuity which is a kind of retiral benefit like pension, provident fund etc. The expression, gratuity itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is sort of financial assistance to tide ever post retiral hardships and inconveniences. For the wage earning population, security of income, when the worker becomes old or infirm, is of consequential importance. The Act accepts, in principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments. The main purpose and concept of gratuity is to help the workman after W.P.(C) No.31282/2019 7 retirement, whether, retirement is a result of rules of superannuation, or physical disablement or impairment of vital part of the body. (See **Ahmedabad Pv. Primary teachers Association v Administrative Officer[2]** ) 10. In the case on hand, the application claiming gratuity was filed by the 1[st] respondent on 30.12.2015. The records reveal that the petitioners herein appeared before the 2[nd] respondent on 9.2.2016. Though ample opportunities were granted, they did not choose to file their objection. The petitioners were set ex parte on 9.3.2018 and it was after taking evidence tendered by the 1[st] respondent before the 2[nd] respondent that Ext.P4 order was passed. Admittedly, though there was a delay of 193 days in filing the application to set aside the ex parte order, the petitioners failed to file an application seeking to condone the delay. The entire aspects were considered by the 2[nd] respondent and the application filed by the petitioners was dismissed by a well reasoned order. 11. I take notice of the fact that the 1[st] respondent is aged 64 years and poor and indigent worker who claims that her last drawn salary was Rs 249.22/in the services of the respondent. The petitioners on the other hand is a mighty Corporation. Obviously, it was utilizing all the means at her disposal, that the 1[st] respondent had approached the statutory authority and claimed her benefits under the Payment of Gratuity Act. The sequence of events and the impugned 2 AIR 2004 SC 1426 W.P.(C) No.31282/2019 8 order clearly shows that there are gross laches on the part of the petitioners herein. In that view of the matter, the finding of the 2[nd] respondent that the petitioners have not made out a case for condonation of delay is clearly on a solid footing. After going through the records, it cannot be said that the 2[nd] respondent had acted without sufficient materials or had misdirected itself in considering the evidence or that it had misconstrued the provisions of the statute. 12. It is by now settled that this Court while issuing a writ of certiorari acts in a supervisory and not appellate jurisdiction. It must also be remembered that the remedy under Article 226 is a discretionary one. This Court is not bound to interfere merely on the establishment of an irregularity or illegality. The Court must further be satisfied that such interference is called for to meet, or to further, the orders of justice. If by interfering in the matter, the interest of justice are going to suffer, this Court will withhold his arm. Furthermore, after going through the materials, I am unable to accept the submission of the learned counsel the finding of fact reached by the 2[nd] respondent as a result of appreciation of the materials before it or on an interference of fact on the materials before it is in any way erroneous. I also take note of the fact that the sum of Rs.1,75,417/- due to the 1[st] respondent has already been recovered from the petitioners by the revenue authorities as is evident from Ext.R1(b). W.P.(C) No.31282/2019 9 13. For the aforesaid reasons, this Writ Petition is found devoid of merits and the same is dismissed. Before parting it is ordered that if the amount covered under Exhibit R1(b) has not been released to the 1[st] respondent, the same shall be done forthwith. Parties are left to suffer their respective costs. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** **csl** W.P.(C) No.31282/2019 10 ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LIST SHOWING THE NUMBER OF WORKING DAYS OF THE 1ST RESPONDENT DURING HER TEMPORARY SERVICE.** - **EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED TO THE 1ST RESPONDENT DISCHARGING HER FROM SERVICE ON ACCOUNT OF SUPERANNUATION DATED 31-12-2014.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR GRATUITY FILED BY THE FIRST RESPONDENT DATED 28-112018.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17-03-2018 IN THE G.C. NO. 19 OF 2016.** - **EXHIBIT P5 TRUE COPY OF THE APPLICATION WITH AFFIDAVIT IN SUPPORT THEREOF DATED 26-09-2018.** - **EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICE ISSUED IN FORM NO.1 UNDER SECTION 7 OF THE REVENUE RECOVERY AT BY THE RESPONDENTS 4 TO 8 WITH TRANSLATION DATED 12-10-2018.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 20-05-2019 OF THE 6TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE EX PARTE ORDER DATED 2510-2019 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE COVERING LETTER DATED 0910-2019.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 18/72019 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN WPC NO.19662/2019** - **EXHIBIT P11 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 16/10/2019 ALONG WITH ENGLISH TRANSLATION** W.P.(C) No.31282/2019 11 **EXHIBIT P12** **TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT DATED 25/10/2019 ALONG WITH ENGLISH TRANSLATION** **RESPONDENT/S EXHIBITS:** **EXHIBIT R1(a) TRUE COPY OF THE APPLICATION UNDER THE PAYMENT OF GRATUITY ACT DATED 30.12.2015** **EXHIBIT R1(b) TRUE COPY OF THE INFORMATION OBTAINED UNDER THE RTI ACT DATED 25.11.2019 WITH TRANSLATION**