Dismissed

E.K.Ramachandran Nair v. Appellate Authority Under Payment of Gratuity Act

Kerala HC8 Aug 2017WP(C)/18528/2013

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the writ petition challenging an appellate order reversing a directive to pay unpaid gratuity. The Court held that the petitioner, by way of a consistent consent letter, had voluntarily waived their right to the deducted amounts, and thus the appellate authority was correct in dismissing the claim.

What did the court decide?

Petitioner's writ petition challenging the Ext.P5 order reversing the directive for gratuity payment is dismissed.

E.K.Ramachandran Nair Vs Appellate Authority… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939

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WP(C).No. 18528 of 2013 (M)

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PETITIONER :

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E.K.RAMACHANDRAN NAIR, AGED 62, S/O.LATE M.S.KESAVAN NAIR, SANTHA NIVAS, VADHYAR ROAD, KALOOR, COCHIN- 17.

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BY ADVS.SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER

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RESPONDENT(S):

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1. APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 (REGIONAL JOINT LABOUR COMMISSIONER, KOLLAM).

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

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3. LABOUR WELFARE FUND COMMISSIONER, KERALA LABOUR WELFARE FUND BOARD BUILDINGS,

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TC NO.28/2857(1), KUNNAMPURAM ROAD, VANCHIYOOR P.O., THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 18528 of 2013 (M)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1: PHOTOCOPY OF THE APPLICATION IN G.C.82/09 DATED 18/5/2009 BEFORE THE 2ND RESPONDENT. EXT.P2: PHOTOCOPY OF THE COUNTER STATEMENT FILED BY 2ND RESPONDENT DATED 14/4/2010. EXT.P3: PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT IN G.C.82/09 DATED 29/2/2012. EXT.P4: PHOTOCOPY OF THE ORDER OF 3RD RESPONDENT BEARING NO.E.5459/09 DATED 17/8/12. EXT.P5: PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT IN G.A 14/2012 DATED 13/3/2013.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

A.K.JAYASANKARAN NAMBIAR, J.

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............................................................. W.P.(C).No.18528 Of 2013 -(M ) ............................................................. Dated this the 8^th day of August, 2017

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J U D G M E N T

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The petitioner has approached this Court aggrieved by Ext.P5 order of the appellate authority under the Payment of Gratuity Act, by which Ext.P3 order of the controlling authority, directing payment of an amount of Rs.33,721/- to the petitioner by way of differential gratuity amount, was reversed by the appellate authority. The facts in the writ petition would indicate that the petitioner, who was a Clerk under the 3^rd respondent, entered service on 21.11.1981, and continued in the services of the 3^rd respondent till 01.06.2005, on which date he retired under a Voluntary Retirement Scheme. On an application preferred by the petitioner for gratuity, the 3^rd respondent fixed the gratuity amount as Rs.70,488/-, from out of which an amount of Rs.36,767/- was disbursed to the petitioner on 11.05.2006, and an amount of Rs.33,721 deducted. The petitioner accepted the payment of Rs.36,767/-, and thereafter, preferred Ext.P1 application before the

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W.P.(C).No.18528 Of 2013 -(M )

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2^nd respondent controlling authority for a direction to the 3^rd respondent to disburse the balance amount of gratuity. The 2^nd respondent, by Ext.P3 order dated 29.02.2012, took note of the provisions of Section 13 of the Payment of Gratuity Act and held that, it was not open to the 3^rd respondent to deduct any amount from the gratuity amounts payable to the petitioner, and therefore, directed the said respondent to effect payment of the amount of Rs.33,721/- to the petitioner in 30 days. In the appeal that was preferred against the said order by the 3^rd respondent, the appellate authority, the 1^st respondent herein, found that the petitioner had expressly consented, in writing, to the 3^rd respondent deducting an amount of Rs.33,721/-, from the gratuity amounts payable to the petitioner. The consent letter, which was referred to in the appeal preferred before the appellate authority, was not denied by the petitioner in the reply preferred before the appellate authority or at any stage in the proceedings before the appellate authority. Under the said circumstances, the appellate authority found that the petitioner could not maintain a claim in the said amount against the 3^rd respondent, and reversed Ext.P3 order.

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W.P.(C).No.18528 Of 2013 -(M )

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I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

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On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that, inasmuch as by the consent letter, referred to in Ext.P5 order, the petitioner virtually agreed to the deduction of amounts from amounts that were due to him by way of gratuity, and thereby waived a personal right that had accrued in his favour in terms of Section 13 of the Payment of Gratuity Act, the petitioner cannot now take a stand to the contrary and insist on a payment of the said amount, the right to receive which, he had waived through the consent letter. Although learned counsel for the petitioner would rely on S. 14 of the Gratuity Act to contend that, an agreement by the petitioner could not deprive him of a statutory right that had accrued in his favour, I am of the view that, through the consent granted by the petitioner, to deduct amounts from the amounts that were already found due to him by way of gratuity, he had waived his right to

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W.P.(C).No.18528 Of 2013 -(M )

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receive the said amounts. There was thus no deprivation of his right to receive the gratuity, for the purposes of attracting the provisions of S. 14 of the Act. I, therefore, see no ground to interfere with Ext.P5 order in these proceedings under Article 226 of the Constitution of India. The writ petition, in its challenge against the same, is therefore dismissed.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns/07.08.17

E.K.Ramachandran Nair v. Appellate Authority Under Payment of Gratuity Act

Case brief

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E.K.Ramachandran Nair v. Appellate Authority Under Payment of Gratuity Act

Case brief

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