W.A.No.505 of 2023: Secretary, Sree Avittom Thirunal Hospital, Health Education Society (SATH HES) v. The State of Kerala and others

W.A.No.505 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945** ## **WA NO. 505 OF 2023** ## **AGAINST THE JUDGMENT IN WP(C) 2502/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT:** THE SECRETARY, SREE AVITTOM THIRUNAL HOSPITAL,, HEALTH EDUCATION SOCIETY, ( SATH HES), MEDICAL HOSPITAL CAMPUS , MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695011 BY ADV R.S.SARAT ## **RESPONDENTS:** 1 THE STATE OF KERALA, REP. BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001 2 THE REGIONAL JOINT LABOUR COMMISSIONER, OFFICE OF THE REGIONAL JOINT LABOUR COMMISSIONER, KOLLAM, PIN - 691013 3 THE DEPUTY LABOUR COMMISSIONER AND SOCIETY STATE ADVISORY CONTRACT LABOUR BOARD, (THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972), THOZHIL BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695033 W.A.No.505 of 2023 2 4 SINDHU.S., NANDANAM, TC 76/56(4) MANNAM VAIKOM, ANAYARA.P.0, THIRUVANANTHAPURAM, PIN - 695029 5 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, 2 ND FLOOR CIVIL STATION ROAD, THRIUVANANTHAPURAM, KERALA 695 043 (ADDL. RESPONDENT NO.5 IS IMPLEADCD AS PER ORDER DATED 28.09.202 1 IN IA 1/2021). BY ADVS. GOVERNMENT PLEADER(B. UNNIKRISHNA KAIMAL) B.ANANTHU FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2023, THE COURT ON 9.11.2023 DELIVERED THE FOLLOWING: W.A.No.505 of 2023 3 ## **ANU SIVARAMAN, J. & C. JAYACHANDRAN, J.** **= = = = = = = = = = = = = = = = = = = W.A.No.505 of 2023** **= = = = = = = = = = = = = = = = = = = Dated this the 9th day of November, 2023** ## **JUDGMENT** ## **Anu Sivaraman J.** 1.This appeal is preferred against the judgment of the learned single Judge rejecting the writ petition filed by the appellant. The writ petition was filed challenging the order passed by the 2[nd] respondent and seeking a declaration that the petitioner society is not governed by the Payment of Gratuity Act and to hold that the 4[th] respondent is not entitled to gratuity under the Payment of Gratuity Act, 1972. It was the contention of the petitioner that it was a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Act and that Exhibit P2 was an _ex parte_ order passed by the 3[rd] respondent on a complaint filed by the 4[th] respondent W.A.No.505 of 2023 4 directing payment of an amount of Rs.2,92,947/- as gratuity with interest from 17.3.2018. It is stated in the writ petition that having received notice dated 25.9.2018 from the office of the 3[rd] respondent, the petitioner had entered appearance on 13.11.2018 and sought time to file counter affidavit. Thereafter, there was no communication with regard to the next posting date and next communication received by the petitioner was a letter dated 28.10.2019 enclosing Exhibit P2 order. It is contended that a review petition had been sent by the petitioner on 8.11.2019, to the 3[rd] respondent as Exhibit P3. When no action was taken thereon and recovery proceedings were initiated and continued against the petitioner, an appeal was preferred, which was rejected by Exhibit P8 order stating that it is belated. 2.The learned counsel appearing for the appellant contends that it was on account of the delinquency of the 4[th] respondent that her services were terminated and that if the appeal were to be considered on its merits, these aspects could be brought to the notice of the appellate authority. It is further contended that W.A.No.505 of 2023 5 since the complaint submitted by the 4[th] respondent had been disposed of _ex parte_ without giving the appellant an opportunity to place its contentions before the Controlling Authority, the confirmation of the orders and the continuation of the revenue recovery proceedings against the appellant society without giving it an opportunity to place its contentions on record at any stage in the proceedings was completely unwarranted. Annexure A to D documents produced along with the counter affidavit as well as Annexure E to K produced along with the Interlocutory Application to receive additional documents are also brought to our notice to support the contention that it was when disciplinary proceedings had been intitiated against the 4[th] respondent that she had submitted an application for voluntary retirement and that therefore, no gratuity would be payable to the 4[th] respondent. - 3.A counter affidavit has been placed on record by the 4[th] respondent contending that the 4[th] respondent was a Senior Computer Operator in the Society from 5.10.1998 to 16.03.2018. When she retired from service voluntarily, she has W.A.No.505 of 2023 6 19 years of continuous service, excluding a leave period of around six months from 16.02.2006 to 11.08.2006. It is submitted that gratuity was not paid to her and she had approached the Controlling Authority under Section 7(4) of the Payment of Gratuity Act, 1972. The application was taken on file by the 3[rd] respondent and the appellant had entered appearance and sought time to file a written statement as can be seen from Exhibit P2 order dated 28.3.2019. But no written statement was filed, the application was considered and Exhibit P2 order was passed by the 3[rd] respondent. It is submitted that after entering appearance on behalf of the respondents, it was the duty of the appellant to have filed the written statement and enquired about the posting of the case and that the contention that the posting of the case was not intimated by the 3[rd] respondent is completely misconceived. It is further contended that Exhibit P2, being an order dated 28.3.2019, the review petition filed on 8.11.2019 itself was belated. Thereafter, the society had approached this Court filing W.P.(C).No.21468 of 2020, which was withdrawn with liberty to file an appeal before the appellate authority. The W.A.No.505 of 2023 7 appeal thereafter preferred being out of time, the same was rightly rejected by the appellate authority, which was not interfered with by the learned single Judge. 4.It is submitted that on 15.3.2018, the 4[th] respondent had submitted Annexure R4(a) complaint of workplace harassment against the then Administrative Officer to the Chairman of the Appellant Society. As a counterblast, a memo was issued to the 4[th] respondent on 19.3.2018, four days after the complaint. It is stated that the allegations in the memo are to the effect that the 4[th] respondent had come to the office on a holiday and copied certain documents from the computer that she was using prior to her resignation. It is stated that the further allegation that the 4[th] respondent had used the computer on a holiday, that is on 15.1.2018, was of no consequence and that such allegations are raised at this late point only to tarnish the integrity of the 4[th] respondent. It is further contended that apart from a memo issued long after her resignation, there is no material produced by the appellant even in this appeal which would advance the case of the appellant. W.A.No.505 of 2023 8 5.We have considered the contentions advanced. It is an admitted fact that the 4[th] respondent had submitted an application under Section 7(4) of the Payment of Gratuity Act before the competent authority. The said application was received by the Controlling Authority on 11.9.2018 The appellant had entered appearance on 13.11.2018 before the Controlling Authority and had sought time for filing a written statement. Subsequently, when the matter was posted on 29.01.2019, the appellant was absent and was declared _ex parte_ . The 4[th] respondent filed proof affidavit on 12.2.2019 and the case was taken for orders and it was thereafter that Exhibit P2 order was passed on 28.3.2019. Though it is stated in the writ petition that the next communication received by the appellant regarding the above matter was a letter dated 28.10.2019 sent by the 4[th] respondent enclosing a copy of Exhibit P2 order, it is pertinent to note that though extensive documents have been produced in the writ petition as also along with this appeal and by production of additional documents, the copy of the letter dated 28.10.2019 is W.A.No.505 of 2023 9 conspicuously absent and is not produced in the writ petition or in the appeal. Further, a review petition is stated to have been filed on 8.11.2019 before the controlling authority. There is no material to show that a contention was taken that the Payment of Gratuity Act is not applicable to the society. Though it is contended that the appeal preferred has not been considered on merits, the appeal has also not been produced. The appellate authority, by Exhibit P8, has rejected the appeal stating that an appeal could have been entertained under Section 7(7) of the Act only within 60 days of the date of receipt of the order and a further period of 60 days which is extendable by the appellate authority going by the proviso to Section 7(7). No contention referable to the judgment of the Apex Court enlarging the time granted for filing statutory applications or appeals in view of the restrictions and lockdowns imposed due to the Covid pandemic have been urged either before the appellate authority or even before this Court in the writ petition. Even otherwise, if the date of communication of the order as alleged by the appellant, that is 28.10.2019, is taken note of, the time available for filing the W.A.No.505 of 2023 10 appeal would have expired before the Covid pandemic hit the country and the first lock-down was imposed on 27.3.2020. 6.The learned counsel for the appellant placed reliance on the decisions of the Apex Court in **Chairman cum Managing Director, Mahanadi Coalfields Limited v. Rabindranath Choubey** [2020 KHC 6401] **Consolidated Engineering Enterprises and another v. Principal Secretary, Irrigation Department and others** [2008 KHC 6312] and **Ganesan Rep.by its Power Agent G.Rukmani Ganesan v. Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board and others** [2019 KHC 6530] and of this Court in **Raghunathan G v. Coffee Board and others** [2021 KHC 891]. - 7.The learned counsel for the respondent on the other hand relied on the decision of the Apex Court in **Jaswant Singh Gill v.M/s.Bharat Coking Coal Ltd and others** [2007 KHC 3033] as also on the self same decision relied on the learned counsel for the appellant that is **Ganesan v. Commissioner, The** W.A.No.505 of 2023 11 **Tamil Nadu Hindu Religious and Charitable Endowments Board and others** [2019 KHC 6530]. 8.The learned Government Pleader brought to our notice the decisions of a single Judge of this Court in **John Mathew v. Assistant Registrar of Co-operative Societies (General), Adoor and others** [2018(3) KHC 373 and **Commanding Officer, Naval Base and others v. Appellate Authority under the Payment of Gratuity Act and others** [2004 KHC 1073] which though not binding on a Division Bench of this Court, are relevant, since judgments of the Apex Court and of co-equal Benches of this Court as well as other High Courts are referred to therein. ## 9.The judgment in **Raghunathan G v. Coffee Board and** **others (supra)** is specifically with regard to the power of this Court exercising jurisdiction under Article 226 of the Constitution of India to consider a writ petition which is filed with considerable delay. In **Chairman cum Managing** ## **Director, Mahanadi Coalfields Limited v. Rabindranath** W.A.No.505 of 2023 12 **Choubey (supra)** the Apex Court held that the specific Rules relied on therein that is the Coal India Executives' Conduct Discipline and Appeal Rules, 1978 permitted the employer to withhold the gratuity during pendency of disciplinary proceedings and to impose penalty of dismissal upon the employee even after the employee's superannuation. We notice that there are no such contentions in the instant case. In **Ganesan v. Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board and others** **(supra)** the question was with regard to the applicability of Section 5 of Limitation Act to a proceedings before the Commissioner under the Tamil Nadu Hindu Religious and Charitable Endowments Act. The Apex Court found that the mere fact that the statutory authority is empowered to follow procedure provided under the C.P.C would not make it a Court and Section 5 of the Limitation Act would not in such circumstances be applicable. The learned counsel for the appellant would then contend that the provisions of Sections 12 to 14 of the Limitation Act would still be applicable. W.A.No.505 of 2023 13 10.The judgment in **Jaswant Singh Gill v.M/s.Bharat Coking Coal Ltd and others (supra)** and later decisions on the point are authority that the forfeiture of gratuity where gratuity is payable under the provisions of the Payment of Gratuity Act, 1972 would only be in terms of Section 4(6) thereof which reads as follows:- 6) Notwithstanding anything contained in sub-section (1) (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee (may be wholly or partially forfeited)- (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment. 11.The decisions cited by the learned Government Pleader would also indicate that where a specific period of limitation is provided by the statute and the appeal itself is a creature of W.A.No.505 of 2023 14 the statute, condonation of delay can be only in accordance with the provisions contained in the statute and there would be no application for the provisions of the Limitation Act. 12.In **Commanding Officer, Naval Base and others v. Appellate Authority under the Payment of Gratuity Act and others** the question of condonation of delay with regard to an appeal under Section 7(4) of the Payment of Gratuity Act was pointedly considered and relying on the decisions of the Apex Court in **The Commissioner of Sales Tax v. M/s.Parson Tools and Plants, Kanpur** [AIR 1975 SC 1039] and a Division Bench of this Court in **Nachimuthu Gounder** **v. State of Kerala** [1980 KHC 323] it was held that Legislature, having limited the jurisdiction of the appellate authority to condone the delay to a total period of 120 days in filing the appeal, there would be no further application of Section 5 of the Limitation Act. - 13.Having considered the contentions advanced on both sides, we notice that Exhibit P2 order was passed on 28.3.2019, W.A.No.505 of 2023 15 there is nothing on record to show that the order was communicated to the appellant only on 28.10.2019 as alleged by the appellant. It appears that a review had been attempted as evidenced by Exhibit P3, but clearly there is no power of review vested in the controlling authority under the provisions of the Payment of Gratuity Act. The only remedy available to a person aggrieved by an order passed under Section 7(4) is to file within 60 days from the date of receipt of the order an appeal to the appellate authority. Even if the dates mentioned by the appellant are accepted, the appellant had received Exhibit P2 order on 28.10.2019, the period of two months from date of receipt of the order therefore expired on 27.12.2019. Thereafter, the power provided by the statute under Section 7(7) is to accept the appeal filed within a further period of sixty days if the authority is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the prior period of sixty days. Therefore, the said time also expires in February, 2020. It is clear that the appeal in the instant case was filed on 17.11.2020. As a matter of fact, the challenge to Exhibit P2 order was first W.A.No.505 of 2023 16 raised before this Court only on 13.10.2020 where permission was sought to withdraw the writ petition without prejudice to the right of the appellant to approach the appellate authority. It is, therefore, abundantly clear that no efforts has been taken by the appellant to challenge Exhibit P2 order within the time provided for raising a challenge to the same. We notice that the Covid pandemic and the first lock-down resultant thereto had occurred only on 27.3.2020. The contentions of the petitioner relatable to the Covid pandemic are also not applicable to the facts of this case since the time provided for preferring the appeal, even going by the admissions made by the petitioner, would expire long before the pandemic. In the above view of the matter, the appeal is devoid of merits and is accordingly dismissed. **==> picture [24 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sd/- **C. Jayachandran, Judge** sj25/10 W.A.No.505 of 2023 17 ## **APPENDIX OF WA 505/2023** PETITIONER ANNEXURES Annexure-A TRUE COPY OF SHOW CAUSE MEMO BEARING NO.43/A2/2018/SATHHES DATED 19.03.2018 Annexure-B TRUE COPY OF THE LETTER FROM THE 4TH RESPONDENT ADDRESS TO THE APPELLANT SOCIETY DATED 13.04.2018 Annexure-C TRUE COPY OF COMPLAINT GIVEN BY THE JUNIOR CLERK MANJU.S TO THE ADMINISTRATIVE OFFICER DATED 02.03.2018 Annexure-D TRUE COPY OF THE PRINT PAGE CONTAINING LOGIN DETAILS OF THE COMPUTER OF THE NEARBY SEAT ON HOLIDAY TAKEN AND CERTIFIED BY THE SYSTEM ADMINISTRATOR, MEDICAL COLLEGE ON 24.01.2018 Annexure -E TRUE COPY OF PROHIBITION ORDER BEARING NO.M2-1913/2023 DATED 20/5/2023 Annexure F RECEIPT ISSUED BY THE DEPUTY LABOUR COMMISSIONER DATED 3/06/2023 Annexure G COPY OF LETTER OF RECOMMENDATION Annexure H COPY OF ORDER NO:SATHHES.NO./183/98 DATED 05/10/1998 Annexure I STATEMENT OF SYSTEM ADMINISTRATOR DATED 01/07/2023 Annexure J TRUE COPY OF THE REPLY GIVEN BY THE 4TH RESPONDENT DATED 31/03/2018 Annexure K TRUE COPY OF FILE NOTING OF THE APPELLANT SOCIETY DATED 30/04/2018 W.A.No.505 of 2023 18 RESPONDENT ANNEXURES Annexure R4(a) True copy of the complaint dated 15/03/2018 True copy PS to Judge