Remanded

V.Cherootty v. P.T.Ramanujam

Kerala HC20 Sept 2016OP/26090/2002

Case brief

AI extract

What is this about?

Petitioners, former employees, challenged orders denying enhanced gratuity based on a settlement agreement providing benefits up to age 60. The Court remitted the matter to the controlling authority to consider the enhanced claims.

What did the court decide?

Matter remitted to the 2nd respondent (District Labour Officer) to consider claims for enhanced gratuity under the settlement agreement within three months.

V.Cherootty Vs P.T.Ramanujam — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938

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OP.No. 26090 of 2002 (E)

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PETITIONER(S):

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1. V.CHEROOTTY, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE.

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2. G.CHANDRAN, THALANCHERY PADINILAM, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE.

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3. V.C.CHANDUKKUTTY, VADAKKECHALIL HOUSE, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE.

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BY ADV. SRI.N.RAGHURAJ

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RESPONDENT(S):

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1. P.T.RAMANUJAM, MANAGING PARTNER, PUTHIYARA TILE WORKS, KUTHIRAVATTOM, NOW RESIDING AT KALANGAL, SULUR, COIMBATORE, TAMILNADU.

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2. THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 (DISTRICT LABOUR OFFICER), KOZHIKODE.

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3. THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 (REGIONAL JOINT LABOUR COMMISSIONR), KOZHIKODE.

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R1 BY ADVS. SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA SMT.UMA GOPINATH SMT.J.SURYA R2 & R3 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP.No. 26090 of 2002 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF G.C.NO.23/1999 FILED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT

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P2 TRUE COPY OF G.C.NO.24/1999 FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT

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P3 TRUE COPY OF G.C.NO.25/1999 FILED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT

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P4 TRUE COPY OF COUNTER STATEMENT FILED IN G.C.23/1999 BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.

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P5 TRUE COPY OF COUNTER STATEMENT FILED IN G.C.24/1999 BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.

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P6 TRUE COPY OF COUNTER STATEMENT FILED IN G.C.25/1999 BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.

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P7 TRUE COPY OF SETTLEMENT DTD. 5.5.99 BETWEEN THE WORKERS' UNIONS AND THE 1ST RESPONDENT

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P8 TRUE COPY OF THE AMENDMENT PETITION DTD.24.11.99 FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.

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P9 TRUE COPY OF THE AMENDMENT PETITION DTD.24.11.99 FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT.

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P10 TRUE COPY OF THE AMENDMENT PETITION DTD.24.11.99 FILED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT.

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P11 TRUE COPY OF ORDER DTD.8.8.2000 PASSED BY THE 2ND RESPONDENT IN G.C.NO.23 OF 99.

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P12 TRUE COPY OF ORDER DTD.8.8.2000 PASSED BY THE 2ND RESPONDENT IN G.C.NO.24 OF 99.

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P13 TRUE COPY OF ORDER DTD.8.8.2000 PASSED BY THE 2ND RESPONDENT IN G.C.NO.25 OF 99.

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P14 TRUE COPY OF COMMON ORDER DTD.31.5.2002 PASSED BY THE LABOUR COURT, KOZHIKODE IN C.P. NOS.35/99 AND 53/99

msv/

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OP.No. 26090 of 2002 (E)

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P15 TRUE COPY OF ORDER DTD.31.1.2002 PASSED BY THE 3RD RESPONDENT IN GAC NO.2 OF 01.

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P16 TRUE COPY OF ORDER DTD.31.1.2002 PASSED BY THE 3RD RESPONDENT IN GAC NO.2 OF 01.

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P17 TRUE COPY OF ORDER DTD.31.1.2002 PASSED BY THE 3RD RESPONDENT IN GAC NO.2 OF 01.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

P.V.ASHA, J.

O.P. No.26090 of 2002

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Dated this the 20^th day of September, 2016

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JUDGMENT

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Petitioners are employees of Puthiyara Tile Works of which the 1^st respondent was the managing partner. The establishment was closed down on 23.1.1999. Consequent to that petitioners filed Exts.P1 to P3 applications before the controlling authority-2^nd respondent for payment of gratuity. The 1^st petitioner claimed a sum of Rs.50,318.65 towards his 33 years of service, based on the last drawn wages of Rs.2643/- (Rupees Two thousand six hundred and fourty three only). The 2^nd petitioner in Ext.P2 application claimed a sum of Rs.39,795/- (Rupees thirty nine thousand seven hundred and ninety five only) for a period of 26 years of service based on the last drawn wages @ Rs.2653.50. The 3^rd petitioner in Ext.P3 application claimed a sum of Rs.42,695/- (Rupees Fourty thousand six hundred and ninety five only) for a period of 28 years of service based on last drawn wages of Rs.2,643/- (Rupees Two thousand six hundred and forty three only). The first respondent filed written statement Exts.P4 to P6. In paragraph 10 of the written statement in Ext.P4 it was stated as follows:

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10. It is true that, the applicant is entitled to get an amount of Rs.80,318.66 towards gratuity as per the settlement arrived at before the conciliation officer apart

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O.P. No.26090 of 2002

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from the other benefits as envisaged in the settlement. These amounts were offered to the applicant. But be refused to accept the same and on the other hand, he had chosen to file a claim petition OP 35/99 before the Hon'ble Labour Court, Kozhikode along with (1) Chandra and (2) Chandu Kutty, claiming closure compensation etc. disputing the settlement dt.5.5.99 arrived at before the conciliation officer. Now the respondent is not in a position to pay the gratuity amount entitled to the applicant till the outcome of the false claim petition filed by the applicant before the Labour Court, Kozhikode.

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Similar statements were made in Exts.P5 and P6 written

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statements filed in the cases of petitioners 2 and 3, in which also the amount admitted was equal to the amount claimed in Exts.P2 and P3. Subsequent to the filing of the written statement the petitioners filed applications for amendment of the claim filing Exts.P8 to P10 whereby the enhanced claim for gratuity of Rs.51,843/- (Rupees fifty one thousand eight hundred and forty three only), was made raising the number of years of service to 34 years in the case of 1^st petitioner and Rs.56,631/- (Rupees Fifty six thousand six hundred and thirty one only) for 37 years in the case of the 2^nd petitioner and Rs.59,467/(Rupees Fifty nine thousand four hundred and sixty seven only) for 39 years in the case of the 3^rd petitioner. The amendment applications were submitted when the petitioners came to know about the settlement arrived at between the trade unions and the establishment, which is produced as Ext.P7. In Ext.P7 settlement dated 5.5.1999 clause 1 was to the effect that all the employees who have completed

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5 years of service as on 23.1.1999 would be granted gratuity up to the age of 60 years. It was in terms of this provision that petitioners submitted the amended applications. In the applications Exts.P1 to P3 they claimed gratuity only for the actual number of years of service only. In the written statement filed by the management, as mentioned above the management had taken the contention that the gratuity claimed by the petitioners in Exts.P1 to P3 applications were offered to them; but they refused to accept the same. The controlling authority2^nd respondent passed Exts.P11 to P13 orders directing payment of the amounts claimed in Exts.P1 to P3 without considering the claims in the application for amendment in terms of the settlement. In Exts.P11 to P13 the 2^nd respondent found that the applicants were eligible for gratuity for the actual number of years in service under the management. Claim of the petitioners is that under section 4(5) of the Payment of Gratuity Act the petitioners are entitled for higher quantum of gratuity in terms of Ext.P7 settlement which contained more favourable and better provisions than under the provisions of Payment of Gratuity Act. But the 2^nd respondent has ordered payment of gratuity only in terms of the provisions contained in the Payment of Gratuity Act reckoning the number of years of service and without reckoning the number of years up to the age of 60. The petitioners

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O.P. No.26090 of 2002

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thereupon filed appeals before the appellate authority-the 3^rd respondent and the 3^rd respondent rejected the appeals as per Exts.P15 to P17. The 3^rd respondent found that appellants who challenged the settlement Ext.P7 before the Joint Labour Commissioner cannot claim any more benefits. But what the appellants claimed before the appellate authority was the gratuity in terms of the settlement for the period up to the age of 60 years. What they claimed before the Labor Court were benefits other than gratuity.

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In the meanwhile the petitioners had claimed closure compensation filing C.P.No.35 of 1999 and 53 of 1999 before the Labour Court. By Ext.P14 order the Labour Court held that the petitioners were entitled to bonus, leave wages, lay off compensation and exgratia. The Labour Court as per Ext.P14 order dated 13.5.2002 allowed their claim petition.

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The case of the petitioners is that Ext.P14 order relates to their claim for bonus, leave wages, loss of compensation etc. and not payment of gratuity and therefore on the basis of Ext.P14 their claim for gratuity in terms of the settlement could not have been rejected. This writ petition is filed challenging Exts.P11 to P13 and P15 to P17 to the extent their claim in Exts.P8 to P10 applications were rejected and praying for a declaration that they are entitled to get higher amount of

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O.P. No.26090 of 2002

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gratuity on the basis of Ext.P7 settlement.

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I heard the learned counsel for the petitioners and the learned counsel for the respondents.

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Learned counsel appearing for the respondents furnished a copy of the judgment in O.P.No.33983 of 2002 by which Ext.P14 order passed by the Labour Court was set aside declaring that the petitioners cannot claim any benefit beyond the terms of the settlement. The petitioners herein were parties to that judgment. Referring to paragraph 10 of the judgment in the original petition, the learned counsel for the respondent submits that in terms of the settlement the payment of benefits were made to all the employees and the judgment in the original petition was taken up by the petitioners herein in W.A.No.1086 of 2003 in which the judgment of the learned single Judge was upheld dismissing the writ appeal filed by the petitioners. Referring to a sentence in paragraph 2 of the judgment in the writ appeal the learned counsel for the respondents argued that since this court has stated that the amount due to the petitioners was already paid, the petitioners cannot further raise any contention as to the nonpayment of gratuity.

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On examination of the judgment in the original petition it is seen that paragraph 10 therein only refers to the provisions contained

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O.P. No.26090 of 2002

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in the settlement Ext.P7, which was produced as Ext.P7 itself in O.P.No.33983 and 34009 of 2004 also. Similarly on examination of the judgment in the Writ Appeal, it is seen that paragraph 2 of the judgment in the writ appeal only states the facts of the case referring to the proceedings before and after the settlement and there is only passing reference as follows:

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“Agreement also provided for distribution of gratuity and exgratia amounts before 15.6.1999. On the basis of the agreement amounts were paid. Majority of the workmen accepted the settlement and raised no claim. However, the individual workmen took up the matter before the Labour Court invoking provisions of section 33C(2) of the Industrial Disputes Act.”

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It is referring to the above statements in the judgments that

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the learned counsel argued that the petitioners cannot be heard to raise any contention regarding nonpayment of the gratuity since they have already been paid the amount in accordance with the settlement.

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But it is to be seen that O.P.Nos.33983 of 2002 and 34009 of 2002 were filed against the order passed by the Labour Court in Ext.P14 means the common order passed by the Labour Court in C.P.Nos.35 of 1999 and 53 of 1999. The claims raised therein were not with respect to gratuity. It is also submitted that the first paragraph in the judgment in W.A.Nos.1086 and 1087 of 2003 starts as follows: “Can individual workmen invoke section 33C(2) of the

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Industrial Disputes Act to claim closure compensation where the workers represented by the Unions have already settled the claims arising from the closure of the factory is the question that has come up for consideration in these cases.” Therefore it is clear that claim regarding gratuity was not at all an issue which arose for consideration either in Ext.P14 order of the Labour Court or in the judgment of this court in OP Nos.33983 of 2002 and 34009 of 2002 or in the judgment in the writ appeals against that. On the basis of a general statement in respect of the payments made in terms of the settlement the respondents cannot raise any valid contention that the petitioners are liable to be non suited.

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The further contention of the learned counsel for the respondents is that the petitioners were offered gratuity in terms of the settlement and since they refused the same they are not entitled to payment. But paragraph 10 of the written statement only says that the amount claimed in Exts.P1 to P4 alone was offered. Therefore there was no adjudication before the respondents 2 or 3 regarding their claim for Gratuity on the basis of Ext.P7 settlement for the period up to the date on which they attain the age of 60 years as provided in clause 1 of the settlement-Ext.P7. The respondents do not have and cannot have a case that the petitioners are not entitled to gratuity in

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terms of the settlement till they attain the age of 60 years. At any rate there is no dispute with respect to the claim of the petitioners for gratuity in terms of Exts.P1 to P4 which is already allowed by the 2^nd respondent in Exts.P11 to Ext.P14 orders. The 2^nd respondent has not considered their claim in Exts.P8 to Ext.P11 in accordance with Ext.P7 statement.

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In the above circumstances the matter is remitted to the 2^nd respondent in order to consider their claims in Exts.P8 to P11 applications for the additional amounts of gratuity over and above what is ordered in Exts.P11 to P14. Since the 2^nd respondent has already allowed the claims in terms of Exts.P1 to P3 the only question which remains to be considered is their claims for enhanced gratuity till their attainment of 60 years, in terms of the settlement-Ext.P7. The petitioners will be therefore free to file separate applications claiming additional amounts towards gratuity over and above what is granted in Exts.P11 to P13. In case the respondent has already deposited the amount covered by Exts.P11 to P13 orders, the 2^nd respondent shall release the same to the petitioners without any further delay. For the purpose of consideration for the enhancement claimed in Exts.P8 to P11 and the additional petitions to be filed, the parties shall appear before the 2^nd respondent on 24.10.2016. The 2^nd respondent shall

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thereupon consider and pass orders on their claims in accordance with

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law within a period of three months.

Sd/-

P.V.ASHA

JUDGE

rkc

V.Cherootty v. P.T.Ramanujam

Case brief

What is this about?

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V.Cherootty v. P.T.Ramanujam

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