Allowed

C.K.Sasikumar v. the Kerala State Co-Operative Bank Ltd.

Kerala HC7 Dec 2017WP(C)/27507/2013

Case brief

AI extract

What is this about?

Retired employees of Kerala State Co-operative Bank challenged orders demanding return of gratuity exceeding Rs. 10,00,000. The High Court held that the Kerala Co-operative Societies Rules cannot restrict the gratuity limit under the Payment of Gratuity Act, 1972. Employees entitled to a higher amount under Section 4(5) of the Central Act must receive it.

What did the court decide?

The orders dated 11.6.2013 demanding return of excess gratuity are set aside. The Bank is directed to return the excess amount with interest at 9% per annum.

C.K.Sasikumar Vs the Kerala State… — 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 ANIL K.NARENDRAN

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THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939

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WP(C).No. 27507 of 2013 (K)

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PETITIONERS:

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1. C.K.SASIKUMAR, AGED 60 YEARS, S/O.C.K.KESAVAN, SREEVIHAR, OPPOSITE RAILWAY STATION, MANJOOR P.O, KOTTAYAM DISTRICT, PIN 686 603.

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2. LIZA KORAH, AGED 59 YEARS, D/O.KUNJIKORAH, VAYALUMKAL HOUSE, PRRA 35, PAP ROAD, THAMMANAM P.O, KOCHI, PIN 682 032.

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3. T.RAJAGOPALAN NAIR, AGED 59 YEARS, S/O.THRIVIKRAMAN NAIR, SOUPARNIKA, TC 2/1522(3), GOWREESAPATTOM, PATTOM P.O, THIRUVANANTHAPURAM PIN 695 004.

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4. C.JAYALAKSHMI, AGED 59 YEARS, D/O.BHASKARAN, SUJAY, TC 50/80 (6), KALADY, KARAMANA P.O, THIRUVANANTHAPURAM PIN 695 002.

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5. S.JAYASREE, AGED 59 YEARS, D/O.RAMAN NAIR, ASHWINI, 300B, GANDHINAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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6. FRANCIS SCARIA, AGED 59 YEARS, S/O.THOMMEN SCARIA, ANUGRAHA, TC 14/2131, PATTOM PALACE P.O, THIRUVANANTHAPURAM, PIN 695 004.

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7. J.SARASWATHY AMMA, AGED 59 YEARS, D/O.KRISHNA PILLAI, SOUPARNIKA, TC 36/541, PETTA P.O, THIRUVANANTHAPURAM 695 024.

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8. R.SUDHAKARAN, AGED 59 YEARS, S/O.RAMANUNNI NAIR, TC 55/1102, SURABHI, NIRAMANKARA, KAIMANAM P.O, THIRUVANANTHAPURAM 695 040.

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9. OMANA MATHEW, AGED 59 YEARS, D/O.V.M.MATHAI, KADAKAMPALLIL, KP 12/372, N.C.C ROAD, PEROORKADA, THIRUVANANTHAPURAM PIN 695 003. ...2

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WP(C).No. 27507 of 2013 (K) : 2 :

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10. N.SOURIA, AGED 59 YEARS, D/O.M.N.RAWTHER, TC 36/1034(1), HOUSE NO.2, I, KAIRALI NAGAR, ENCHAKKAL, THIRUVANANTHAPURAM PIN 695 008.

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11. G.ARAVINDAKSHAN, AGED 59 YEARS, S/O.GOPALAPANICKER, TC 17/911(3), C.S ROAD, POOJAPPURA, THIRUVANANTHAPURAM PIN 695 012.

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12. K.RADHAKRISHNAN, AGED 9 YEARS, S/O.SIVASANKARAN NAIR, KALLANASSERIKOKKATH, VENGERI TEMPLE ROAD, OTTAPALAM P.O, PALAKKAD DISTRICT, PIN 679 101.

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BY ADVS.SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM SRI.RACHEL JOSEPH SRI.MARTIN D.ALUMKARA SMT.R.RAJASREE (CHUTTIMATTATHIL) SMT.R.REMA MENON

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RESPONDENT:

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THE KERALA STATE CO-OPERATIVE BANK LTD., COBANK TOWERS, PALAYAM, THIRUVANANTHAPURAM, PIN 695 033, REPRESENTED BY ITS MANAGING DIRECTOR.

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R1 BY ADV. SRI.GEORGE POONTHOTTAM, SC, KERALA STATE CO.OP BANK LTD. R1 BY ADV. SRI.GILBERT GEORGE CORREYA, SC, KERALA STATE CO-OPERATIVE BANK LTD. BY SRI.K.RAVIKUMAR, SC, KERALA STATE COOPERATIVE BANK

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 27507 of 2013 (K)

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APPENDIX

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PETITIONERS' EXHIBITS

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EXHIBIT P1. COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE IST PETITIONER.

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EXHIBIT P1(A). COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 2ND PETITIONER.

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EXHIBIT P1(B).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 3RD PETITIONER. EXHIBIT P1(C).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 4TH PETITIONER. EXHIBIT P1(D).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 5TH PETITIONER.

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EXHIBIT P1(E).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 6TH PETITIONER. EXHIBIT P1(F).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 7TH PETITIONER. EXHIBIT P1(G).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 8TH PETITIONER.

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EXHIBIT P1(H).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 9TH PETITIONER.

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EXHIBIT P1(I).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 10TH PETITIONER.

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EXHIBIT P1(J).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 11TH PETITIONER.

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EXHIBIT P1(K).COPY OF THE NOTICE DATED 20.6.12, ISSUED BY THE RESPONDENT TO THE 12TH PETITIONER.

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EXHIBIT P2. COPY OF THE RELEVANT EXTRACT OF THE PROVISO INSERTED IN RULE 59 OF THE KERALA CO-OPERATIVE SOCIETIES ACT & RULES 1969, AS PER G.O (P). 172/2010/CO-OP. DATED 2.11.10.

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EXHIBIT P3. COPY OF APPENDIX IV GRATUITY RULES OF THE KERALA STATE CO-OPERATIVE BANK STAFF REGULATIONS.

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EXHIBIT P4. COPY OF THE REPRESENTATION DATED 18.11.12 SENT BY THE IST PETITIONER TO THE RESPONDENT.

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....2

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WP(C).No. 27507 of 2013 (K) : 2 :

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EXHIBIT P4(A).COPY OF THE REPRESENTATION DATED 23.11.12 SENT BY THE 2ND PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(B).COPY OF THE REPRESENTATION DATED 22.11.12 SENT BY THE 3RD PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(C).COPY OF THE REPRESENTATION DATED 21.11.12 SENT BY THE 4TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(D).COPY OF THE REPRESENTATION DATED 30.11.12 SENT BY THE 5TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(E).COPY OF THE REPRESENTATION DATED 23.11.12 SENT BY THE 6TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(F).COPY OF THE REPRESENTATION DATED 26.11.12 SENT BY THE 7TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(G).COPY OF THE REPRESENTATION DATED 17.09.12 SENT BY THE 8TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(H).COPY OF THE REPRESENTATION DATED 22.11.12 SENT BY THE 9TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(I).COPY OF THE REPRESENTATION DATED 28.11.12 SENT BY THE 10TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P4(J).COPY OF THE REPRESENTATION DATED 24.11.12 SENT BY THE 11TH PETITIONER TO THE RESPONDENT. EXHIBIT P4(K).COPY OF THE REPRESENTATION DATED 22.11.12 SENT BY THE 12TH PETITIONER TO THE RESPONDENT.

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EXHIBIT P5. COPY OF THE JUDGMENT DATED 7.3.13 IN WPC NO.4115/2013.

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EXHIBIT P6. COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE IST PETITIONER BY THE RESPONDENT.

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EXHIBIT P6(A).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 2ND PETITIONER BY THE RESPONDENT. EXHIBIT P6(B).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 3RD PETITIONER BY THE RESPONDENT.

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EXHIBIT P6(C).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 4TH PETITIONER BY THE RESPONDENT.

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EXHIBIT P6(D).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 5TH PETITIONER BY THE RESPONDENT.

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....3

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WP(C).No. 27507 of 2013 (K) : 3 :

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EXHIBIT P6(E).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 6TH PETITIONER BY THE RESPONDENT.

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EXHIBIT P6(F).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 7TH PETITIONER BY THE RESPONDENT.

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EXHIBIT P6(G).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 8TH PETITIONER BY THE RESPONDENT. EXHIBIT P6(H).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 9TH PETITIONER BY THE RESPONDENT. EXHIBIT P6(I).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 10TH PETITIONER BY THE RESPONDENT. EXHIBIT P6(J).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 11TH PETITIONER BY THE RESPONDENT. EXHIBIT P6(K).COPY OF THE ORDER DATED 11.06.2013 ISSUED TO THE 12TH PETITIONER BY THE RESPONDENT.

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RESPONDENT'S EXHIBITS

NIL

//TRUE COPY//

P.A TO JUDGE

ANIL K. NARENDRAN, J.

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W.P(C) No.27507 of 2013

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Dated this the 7^th day of December, 2017

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J U D G M E N T

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The petitioners, who are retired employees of the respondent Bank, have approached this Court in this writ petition seeking a writ of certiorari to quash Ext.P6 to P6(k) series of orders dated 11.6.2013 issued by the said respondent and also a writ of mandamus commanding the respondent Bank to return to each petitioners the amount recovered from their gratuity amount in excess of 10,00,000/-, pursuant to Exts.P1 to P1(k) series of₹ notices. They have also sought for order directing the respondent Bank to pay interest at the rate of 12% per annum on the amount recovered from their gratuity amount, in excess of 10,00,000/-,₹ pursuant to Exts.P1 to P1(k) series of notices, from the date on which such gratuity became due.

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On 8.11.2013 when this writ petition came up for

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admission, this Court admitted the matter on file and the learned Standing Counsel for the respondent Bank took notice.

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Heard the learned counsel for the petitioners and also

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the learned counsel for the respondent Bank.

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The petitioners, who retired from service of the

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respondent Bank, were paid gratuity as per the provisions under the Payment of Gratuity Act, 1972 read with the Gratuity Rules contained in Appendix IV of Ext.P3 Kerala State Co-operative Bank Staff Regulations. Subsequently the petitioners were issued with Exts.P1 to P1(k) series of notices, whereby they were informed that the employees of the respondent Bank are eligible only to a maximum amount of Rs.10,00,000/- as gratuity and they were required to return the amount of gratuity received in excess of Rs.10,00,000/-. Such a demand was made in view of the proviso to Rule 59(iii) of the Kerala Co-operative Societies Rules, 1969 which came into force with effect from 2.11.2010. The objections raised by the petitioners vide Exts.P4 to P4(k) series were turned down by Exts.P6 to P6(k) series of orders of the respondent Bank.

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The issue raised in this writ petition regarding the entitlement of the employees of the Co-operative Societies covered by the provisions under the Payment of Gratuity Act to

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W.P(C) No.27507 of 2013

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receive better terms under Section 4(5) of the said Act is now settled by the decision of the Full Bench of this Court in

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Chandrasekharan Nair G. and others v. Kerala State Cooperative Agricultural and Rural Development Bank Ltd.

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and others (2017 (4) KLT 276) . Paragraphs 5 to 8 of the said decision read thus;

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“5. The liability to pay gratuity does not get shifted to the insurer by the compulsory insurance and the effect is only that the maturity value of the master policy would go to the credit of the dues of the employee. Any amount in excess of the gratuity due would also go to the employee since the contract of insurance would fall within the ambit of Section 4 (5) of the Central Act. Any deficit in the amount due as gratuity to the employee after payment by the insurer has to be met by the employer only as the liability squarely rests on him under Section 4(2) of the Central Act. The insurer cannot be made liable to pay any amount in excess of the maturity value of the master policy as the same would be dependent on the premium paid to him. The compulsory insurance under S.4A of the Central Act is only to facilitate the employer to discharge his liability and the premium paid is part of the wages only. Of course the wording of the second proviso to Rule 59(iii) of the Rules gives rise to a doubt that the employee would be pinned down to the amount of gratuity specified in the Central Act. Such an

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W.P(C) No.27507 of 2013

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interpretation would render Section 4(5) of the Central Act otiose whereunder the employee has a right to receive better terms of gratuity under any award or agreement or contract with the employer. The provisions of the Central Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or instrument or contract. The overriding effect of the Central Act over other enactments is explicit from Section 14 of the Central Act which is to the following effect:

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"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."

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The co-operative societies wherein the employees are engaged is Entry 32 of List II - State List and gratuity to which a claim is laid is Entry 24 of List III - Concurrent List of the Seventh Schedule to the Constitution of India. The Central Act which is the law made by the Parliament shall prevail over the law made by the Legislature of the State i.e. the second proviso to Rule 59(iii) of the Rules. The inconsistency between laws made by Parliament and laws made by the Legislatures of States can be ironed out by calling in aid Article 254 of the Constitution of India. The same reads as follows:

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"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

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(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

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Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter

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including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

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(emphasis supplied)

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There is no case that the second proviso to Rule 59(iii) of the Rules made by the Legislature of the State has received the assent of the President in order to prevail in the State under Article 254(2) of the Constitution of India. Every amendment to the State Act or the Rules has also to obtain the assent of the President which is absent in regard to the second proviso to Rule 59(iii) of the Rules. The irresistible conclusion is that Section 4(5) of the Central Act which enables an employee to opt for a better terms of gratuity will prevail over the second proviso to Rule 59(iii) of the Rules. Only the case of employees who are both covered under the Central Act and the Rules framed under the State Act is dealt with in this bunch of writ petitions since the Central Act does not apply to all establishments. Section 1 (3)(b) of the Central Act is categoric that the same applies only to an establishment in which ten or more persons are employed or were employed during the preceding twelve months.

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The dominant intention of the Central Act is to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments. The dominant intention of the State Act is to provide for the orderly development of the co-operative societies in the State as

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W.P(C) No.27507 of 2013

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self-governing democratic institutions. A provision in the Central Act to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision in the State Act. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2) of the Constitution. We shall quote the decision in Vijay Kumar Sharma v. State of Karnataka, 1990 KHC 805 wherein it is held as follows:

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"53. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention i.e. the pith and substance of the two legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally

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be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the article." (emphasis supplied)

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There is no repugnancy (in the sense that one Act cannot be obeyed without disobeying the other) and therefore every endeavor has to be made to reconcile the provisions and give a harmonious construction.

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The following decisions were cited at the Bar by the counsel for either sides:

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(i) Retnavalli v. Ambalapadu Service Cooperative Bank Ltd. [2005 (3) KLT 320]

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(ii) Nedupuzha Service Co-operative Bank Ltd. v. Rugmini [2011 (3) KLT 134 (DB)]

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(iii) Mathew Korah v. Kaduthuruthy Urban Cooperative Bank [2013 (4) KLT 558]

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(iv) The Travancore Cements Employees'

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Co-operative Bank Ltd. v. Ramachandran Nair [2014 (1) KLT 889 (DB)] and

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(v) Life Insurance Corporation of India v. K.P.Varughese [ILR 2015 (3) Kerala 420 (DB)].

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None of the above decisions dealt with the second proviso to Rule 59(iii) of the Rules substituted with effect from

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2.11.2010 only and hence do not help to resolve the controversy in this bunch of cases. The second proviso to Rule 59(iii) of the Rules referable to the amount received out of any scheme implemented by a society shall be construed in the context explained above. The employee in other words is entitled to the higher amount if he has opted in terms of Section 4(5) of the Central Act even if a lesser amount is due under Section 4(2) thereof. The decision in Nedupuzha's case (supra) to the extent that excess amount if any received by the employer under the policy would inure to the employee is affirmed. The said decision does not lay down the proposition that the entitlement of the employee is confined to the amount received under the policy even if it falls short of the statutory limit. Circular No.5/2016 and similar circulars issued by the Registrar of Co-operative Societies stem out of a misconception of the statutory provisions and are quashed to this extent. The reference is answered accordingly and the writ petitions shall be posted before the single Judge as per roster for disposal dependent on individual facts.”

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6. In Chandrasekharan Nair's case (supra) , the Full

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Bench of this Court held that, the liability to pay gratuity does not

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get shifted to the insurer by the compulsory insurance and the effect is only that the maturity value of the master policy would go to the credit of the dues of the employee. Any amount in

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excess of the gratuity due would also go to the employee since the contract of insurance would fall within the ambit of Section 4

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(5) of the Central Act. Any deficit in the amount due as gratuity to the employee after payment by the insurer has to be met by the employer only as the liability squarely rests on him under Section 4(2) of the Central Act. The insurer cannot be made liable to pay any amount in excess of the maturity value of the master policy as the same would be dependent on the premium paid to him. The compulsory insurance under Section 4A of the Central Act is only to facilitate the employer to discharge his liability and the premium paid is part of the wages only.

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In Chandrasekharan Nair's case (supra) the Full

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Bench held further that, the wording of the second proviso to Rule 59(iii) of the Rules, of course, gives rise to a doubt that the employee would be pinned down to the amount of gratuity specified in the Central Act. Such an interpretation would render Section 4(5) of the Central Act otiose whereunder the employee has a right to receive better terms of gratuity under any award or agreement or contract with the employer. The provisions of the

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Central Act or any rule made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other enactment or instrument or contract. The overriding effect of the Central Act over other enactments is explicit from Section 14 of the Central Act. The Co-operative Societies wherein the employees are engaged is Entry 32 of List II-State List and gratuity to which a claim is laid is Entry 24 of List III-Concurrent List of the Seventh Schedule to the Constitution of India. The Central Act, which is the law made by the Parliament shall prevail over the law made by the Legislature of the State, i.e., the second proviso to Rule 59(iii) of the Rules. The inconsistency between laws made by Parliament and laws made by the Legislatures of

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States can be ironed out by calling in aid Article 254 of the Constitution of India. There is no case that the second proviso to Rule 59(iii) of the Rules made by the Legislature of the State has received the assent of the President in order to prevail in the State under Article 254(2) of the Constitution of India. Every amendment to the State Act or the Rules has also to obtain the assent of the President which is absent in regard to the second

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proviso to Rule 59(iii) of the Rules. Therefore, the irresistible conclusion is that Section 4(5) of the Central Act, which enables

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an employee to opt for a better term of gratuity will prevail over the second proviso to Rule 59(iii) of the Rules.

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In Chandrasekharan Nair's case (supra) , the Full Bench held that, the second proviso to Rule 59(iii) of the Rules referable to the amount received out of any scheme implemented by a society shall be construed in the context explained above. The employee in other words is entitled to the higher amount if he has opted in terms of Section 4(5) of the Central Act even if a lesser amount is due under Section 4(2) thereof. The Full Bench affirmed the decision of the Division Bench in Nedupuzha's case

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(2011 (3) KLT 134) to the extent that excess amount, if any, received by the employer under the policy would inure to the employee. The Full Bench noticed that, the said decision does not lay down the proposition that the entitlement of the employee is confined to the amount received under the policy, even if it falls short of the statutory limit, and that, Circular No.5/2016 and similar circulars issued by the Registrar of Co-operative Societies

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stem out of a misconception of the statutory provisions and are therefore quashed to that extent. The Full Bench has made it clear that, it has dealt with only the case of employees who are both covered under the Central Act and the Rules framed under the State Act, since the Central Act does not apply to all establishments.

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In view of the law laid down by the Full Bench of this Court in Chandrasekharan Nair's case (supra) , an employee of a Co-operative Society, who is covered both under the Payment of Gratuity Act, 1972 and the Kerala Co-operative Societies Rules, 1969 framed under the Kerala Co-operative Societies Act, 1969 is entitled to the higher amount, if he has opted in terms of Section 4(5) of the Payment of Gratuity Act, even if a lesser amount is due under Section 4(2) thereof.

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As held by the Full Bench, Section 4(5) of the Payment of Gratuity Act, which enables an employee to opt for a better term of gratuity will prevail over the second proviso to Rule 59(iii) of the Kerala Co-operative Societies Rules. In that view of the matter, conclusion is irresistible that, the petitioners who are

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retired employees of the respondent Bank are entitled for payment of higher amount of gratuity, in terms of the Gratuity Rules contained in Appendix IV of Ext.P3 Kerala State Cooperative Bank Staff Regulations, in view of Section 4(5) of the Payment of Gratuity Act, even if a lesser amount is due under Section 4(2) thereof.

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In the result, this writ petition is disposed of setting aside Exts.P6 to P6(k) series of orders dated 11.6.2013 of the respondent Bank and the said Bank is directed to return the 'excess amount' of gratuity mentioned in Exts.P1 to P1(k) series of notices to the respective petitioners, together with interest at the rate of 9% per annum from the date of recovery till date of

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repayment, within two months from the date of receipt of a certified copy of this judgment. No order as to costs.

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Sd/- ANIL K. NARENDRAN JUDGE

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//True Copy// P.A to Judge

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C.K.Sasikumar v. the Kerala State Co-Operative Bank Ltd.

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C.K.Sasikumar v. the Kerala State Co-Operative Bank Ltd.

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