Allowed

S.Janardhana Pillai v. the Union of India

Kerala HC10 Dec 2019OP (CAT)/42/2014

Case brief

AI extract

What is this about?

Kerala High Court set aside the Tribunal's order denying enhanced gratuity claims. The court held that treating unionised and non-unionised supervisors differently violated non-discrimination principles, as the government had previously granted enhanced benefits to other categories, rendering the restriction arbitrary.

What did the court decide?

Order of the Tribunal set aside; Respondent Company directed to pay enhanced amounts of gratuity applicable under Annexure A4 with 6% interest.

S.Janardhana Pillai Vs the Union of India — Pension and Retirement Benefits | Kerala HC (2019)

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941

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OP (CAT).No.42 OF 2014(Z)

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AGAINST THE ORDER/JUDGMENT IN OA 288/2012 DATED 18-10-2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONERS:

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1 S.JANARDHANA PILLAI 'PUNARTHAM' VARA 343, ARAPPURA, VATTIYOORKAVU, THIRUVANANTAHPURAM 695013

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2 K. RAJAN, 'THALANTH', HOUSE NO 25, M.G. NAGAR, VAZHAYILA, PEROORKADA P.O, THIRUVANANTAHPURAM 695005

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3 B. GOPALAKRISHNAN NAIR 'SOBHA' T.C 5/ 1882, SREE KRISHNA TEMPLE ROAD, PEROORKADA P.O, THIRUVANANTHAPRUAM 695005

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4 K. SIVASANKARAN NAIR 'USHAS' T.C 15/580, U.S.R.A. 86, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM 695010

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5 P. SASIDHARAN, 'KRISHNA PRASADAM' T.C 5/2305(3) MAHARAJA GARDEN, 137, KOWDIAR P.O, THIRUVANANTHAPURAM 695003

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6 R. RAMASUBRAHMANIAN, T.C. NO 5/2137, ANJALI, KOKKODE, KOWDIAR P.O, THIRUVANANTHAPURAM 695003

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7 N. SOMAN, JUNIOR OFFICER, S.L.R.A 52, SOPANAM, S.K. LANE KALLUMMODU, ANAYARA P.O, THIRUVANANTHAPURAM 695029

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8 S. PUSHKALAMBAL,'AADITHYA', T.C X/63/1 PIPINMOODU, SASTHAMANGALAM, THIRUVANANTHAPURAM 695510

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O.P(CAT) No.42/2014

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9 G. SASIDHARAN NAIR 'SREESAILAM', K.P NRH 106, KANJIRAMPARA P.O, THIRUVANANTHAPURAM 695029

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10 B. BHADRAN, 'ARCHANA' T.C 70/320, ORUVATHILKOTTA, ANAYARA P.O, THIRUVANANTHAPURAM 695029

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11 C. SULOCHANA, 'BHARGAVI MANDIRAM', SREEPURAM, NALLIMOODU P.O, THIRUVANANTHAPURAM 695524

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12 K. RADHAKRISHNAN NAIR, 'ORMA', PANGA5RAPPARA P.O, THIRUVANANTHAPURAM 695581

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13 V. VIKRAMAN NAIR, 'VAISAKH', T.C. 29/1317(1) C.R.A 64, CHERIYA UDESWARAM, PALKULANGARA, PETTAH P.O, THIRUVANANTHAPURAM 695024

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14 J. BABU, 'AMBADI' K.P 15/524, HOUSE NO 83, V.V. NAGAR, N.C.C. ROAD, PEROORKADA P.O, THIRUVANANTAHPURAM 695005

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15 R. THANKAPPAN NAIR, 'THANKA GIRI', PALATHARA, KERALADITHYAPURAM, POWDIKONAM P.O, THIRUVANANTHAPURAM 695587

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16 N. RAVEENDRAN NAIR, 'REVATHY', SOORYA 153, MANNAMMOLA, THIRUVANANTHAPURAM 695005

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17 P. THANKAPPAN, 'THANUVILASAM PUTHEN VEEDU', HOUSE NO 202, G.C. NAGAR, MANNAMMOOLA, PEROORKADA P.O, THIRUVANANTHAPURAM 695005

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18 S.K. VALSALA KUMARI, 'SMRITHI', HOUSE NO CRA 237, CHADIYARA, POOJAPPURA, THIRUVANANTHAPURAM 695005

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19 N.K. JOHNY, 'NEELAN KAVIL HOUSE', T.C 10/227, SWATHY NAGAR LANE NO 4, PEROORKADA P.O, THIRUVANANTHAPURAM 695005

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20 ANANTHA KRUSHNAN.R, 'DEVI KRIPALAYAM', MOOLATHOPPU, PERYAKAVU PO, MANKATTU KADAVU,

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O.P(CAT) No.42/2014

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THIRUVANANTHAPURAM 695573 (DIED)

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21 M. SURENDRAN NAIR, 'SURABHI', EDAKODE, NAMOM P.O, THIRUVANANTAHPURAM 695020

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22 K. UMADEVI, 'DIL DEEP', HOUSE NO 20, PRIYADERSINI NAGAR, PEROORKADA P.O, THIRUVANANTHAPURAM 695005

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23 V. PRASANNA, FLAT NO B2, BLOCK B, AKB ANANDAM 2ND MAIN ROAD, NISHA AVENUE SEMBAKKAM, CHENNAI 600073

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24 V. CHANDRASEKHARAN NAIR, ROHINI PLOT NO 17, T.C 6/1795, P.T.P NAGAR EAST, THIRUVANANTHAPURAM 695038

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25 L. SASI KUMAR,AKSHYA, PAZHAYA UCHAKKADA, KAKKAVILA P.O, THIRUVANANTHAPURAM 695506

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26 T. RUDRAYANI AMMA, HARI VIHAR T.C. 5/1839(1) PEROORKADA P.O, THIRUVANANTHAPURAM 695005

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27 AMBUJA K, W/O.LATE ANANTHA KRISHNAN R., SREE NILAYAM SHANMUGHA GARDEN-2, PERUKAVU PO., PARAPOTTA, PIN - 695 573.

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28 A.ARUN, AGED 33 YEARS S/O.LATE ANANTHA KRISHNAN R., SREE NILAYAM SHANMUGHA GARDEN-2, PERUKAVU PO., PARAPOTTA, PIN - 695 573.

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29 A.ANCHANA, AGED 30 YEARS D/O.LATE ANANTHA KRISHNAN R., T.C 8/741, DEVIKA ILLAM, KUNNATHUMUKAL, AYIROORPARA PO., JANDOORKONAM, PIN - 695 584. (ADDITIONAL PETITIONERS 27,28 AND 29 ARE THE LEGAL HEIRS OF DECEASED P20 AND IMPLEADED AS PER ORDER DATED 12.11.2015 IN I.A.NO.16157 OF 2015 IN OP(CAT)NO.42 OF 2014)

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BY ADVS.

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SRI.N.NANDAKUMARA MENON (SR.)

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O.P(CAT) No.42/2014

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SMT.HENA BAHULEYAN SRI.P.K.MANOJKUMAR

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RESPONDENTS:

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1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HEAVY INDUSTRIES AND PUBLIC ENTERPRISES, PUBLIC ENTERPRICES BHAVAN, BLOCK NO 14 (G.O), COMPLEX, LODHI ROAD, NEW DELHI 110001

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2 HINDUSTAN LATEX LIFE CARE LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, POOJAPURA, THIRUVANANTHAPURAM 695001

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3 THE SECRETARY MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PENSION AND PENSIONERS, WELFATE LOK NAYAK BHAVAN, NEW DELHI 110003

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R1 BY ASSISTANT SOLICITOR GENERAL R1, R3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2 BY ADV. SRI.U.K.DEVIDAS R2 BY ADV. SMT.DEVI.C.HARIDAS R2 BY ADV. SRI.DINESH THANKAPPAN R2 BY ADV. SRI.V.KRISHNA MENON R2 BY ADV. SMT.P.VIJAYAMMA R2 BY ADV. SMT.UMA GOPINATH R2 BY ADV. SMT.J.SURYA

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OTHER PRESENT:

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SRI.V.KRISHNA MENON

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 10-12-2019, THE COURT ON 10-12-2019 DELIVERED THE FOLLOWING:

O.P(CAT) No.42/2014

JUDGMENT

Dated this the 10^th day of December, 2019

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Vinod Chandran, J.

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The claim for enhanced gratuity as per the Amendment Act 15 of 2010 made by 36 employees of the respondent Corporation-a Public Sector undertaking (PSU) under the Union Government, was declined by the Tribunal. The issue raised is on the ground of discrimination, when the Central Government employees and the officers in the very same respondent Company were granted the enhanced benefits, even prior to the amendment having come into force.

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2. The Tribunal found that the applicants

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are not similarly situated and that they are covered by Annexure A1 Memorandum of Understanding and Annexure A2 Memorandum of Settlement as arrived at between the representative Unions of workmen and

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O.P(CAT) No.42/2014

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the Management of the Company. The contention of the respondent that the workmen, in which category is included the applicants and the executive officers and non-unionised supervisors are distinct, separate class; was upheld. Twenty six of the applicants have approached this Court challenging the order of the Tribunal; of which one expired, whose legal heirs have been impleaded as additional respondents 27 to 29.

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3. The learned Counsel appearing for the petitioners points out that Annexure A1 and A2 are settlements entered into with the representative Unions after retirement of the petitioners. The petitioners were all Junior Officers, Supervisors and Foremen; who despite their supervisory capacity were categorised as workmen- employees; for reason only of their membership in a Trade Union. It is submitted that; constituting themselves into a Trade Union is legally permitted and there could be

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O.P(CAT) No.42/2014

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no exclusion or discrimination for reason of the employee being a part of one or other of the representative unions. The ground of discrimination is urged on the basis of Annexure A4 which permitted the executive level officers and the nonunionised supervisors the very benefit of enhanced amounts of gratuity. It is also argued that while entering into the settlement; the unions were cautious to preserve the benefits of those employees continuing in the Company; but

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consciously left out those who retired.

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4. The learned Standing Counsel for the

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respondent Company vehemently argued for sustaining the order of the Tribunal. It was urged that there is no challenge against Annexure A1, A2 and A4 and hence the petitioners cannot claim the benefit, not specifically provided for in those agreements and order. It is submitted that the respondent Company is in financial doldrums and the

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payment of enhanced amounts of gratuity would sound the death knell of the Company. It is contended that the amendment to the Payment of Gratuity Act, enhancing the maximum amounts of gratuity payable was made effective only on 22.05.2010. There could be no legal right claimed by the employees who retired prior to that date for similar benefits.

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5. We have looked at Annexure A1 and A2 which are respectively dated 01.12.2009 and 16.01.2010, obviously prior to the amendment to the Payment of Gratuity Act. We also take note of the compelling argument addressed by the learned Counsel for the petitioners that at the time of Annexure A1 and A2, the petitioners were no more in the employment of the Company. Their rights cannot be said to have been protected by the respective unions nor can the retired personnel said to have been represented by the existing unions in the

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Company. We find the said contention quite

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O.P(CAT) No.42/2014

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acceptable especially noticing clause 5.4 as seen from Annexure A2. Even before the amendment of the Payment of Gratuity Act, the management Company had agreed to pay the enhanced amounts of Rs.10 lakhs with effect from 04.04.2010 to the employees as on that date. It was also agreed that those who retired between the date of Annexure A1 and 31.03.2010 would also be granted the enhanced benefits of gratuity. Hence as rightly pointed out by the petitioners, the Unions were concerned with only those persons in the employment of the Company, at the time of entering into the MOU, at Annexure A1. The persons who retired prior to the MOU cannot be said to have been represented by the Unions, at least with respect to the issue of the amounts payable as gratuity.

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6. We notice that the revision of pay as agreed on had retrospective effect from 01.01.2007. It is also an admitted fact that the petitioners

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O.P(CAT) No.42/2014

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were entitled to the same and had accepted it. But merely for the reason of acceptance of such retrospective effect given to revision of pay, it cannot be said that the petitioners are estopped or interdicted from claiming the further benefit of enhanced amounts of gratuity; which the Company allowed to certain persons, even before the amendment.

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7. When claiming a benefit that was not

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available in the settlement; it is not mandatory that the terms of the settlement should be challenged. There is also no principle that when benefits available under a settlement is accepted,

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there can be no further claim raised, unless the available benefits are accepted under protest. The claim of enhanced gratuity is in addition to and quite distinct from the benefit of revision of pay. There is also no requirement to challenge the benefit of enhanced amounts of gratuity, granted to

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certain category of employees, especially when the ground raised is of hostile discrimination.

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We reiterate with emphasis that here, on the aspect of gratuity, the representative Unions cannot be deemed to be representing the interests of the petitioners, who retired prior to the settlement. There could be no statutory violation found in extending similar benefits to the petitioners since the payment of Gratuity Act permits better benefits and saves them from any rigor imposed by the Payment of Gratuity Act; which in any event was granted to certain category of employees from a retrospective date.

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8. We find considerable force in the ground of discrimination alleged on the basis of Annexure A4. Annexure A4 is an Office Memorandum issued by the Government of India dated 26.11.2008. It applies to Board level and below Board level executives and non-unionised supervisors. As per

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O.P(CAT) No.42/2014

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the recommendations of the pay revision Committee in the year 2008; long prior to the enhancement of the limit of gratuity, the Central Government had permitted the specified categories of employees mentioned in Annexure A4 to be granted the benefit of the enhanced ceiling of gratuity at Rs.10 lakhs with effect from 01.01.2007 as is seen from paragraph 13 of Annexure A4. This is not as per the amendment made to the Payment of Gratuity Act and was an independent decision taken. The amendment hence has no relevance to the claim raised here by the retired employees; which is on grounds of discrimination as the same benefit was granted from an earlier date to certain employees.

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9. The learned Standing Counsel would

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argue that it is for the Government of India to answer the ground of discrimination. The Union of India is the 1^st respondent before the Tribunal and before us. The O.A was filed before the Tribunal

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O.P(CAT) No.42/2014

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in 2012 and the O.P(CAT) has been pending before this Court from 2014. Government of India has not chosen to reply to the ground of discrimination. As we noticed, the grant of enhanced amount of gratuity to executives and non-unionised supervisors was not on account of the amendment of 2010. The decision so to do was taken long prior to the amendment. There is also no contention taken

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by the respondent Company as to how the petitioners, called the unionised supervisors can be reasonably denied of the benefits or treated as a seperate class for the purpose of determining the amount of gratuity due to the employees. The discrimination between the employees of the respondent Company, on the aspect of the quantum of gratuity payable is not justified. In the circumstances we do not find any reason to decline the claim raised by the petitioners; who were also in a supervisory capacity, but unionised and not in

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the executive cadre. As was rightly pointed out by the petitioners the mere fact that they were workmen organised under a Trade Union cannot lead to different standards being employed insofar as the retirement benefits granted to them.

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10. We also see from the order of the Tribunal that it notices many other PSUs having extended the enhanced limit to the employees who retired with effect from 01.01.2007. The Central Government having framed the policy long prior to the enhancement of the ceiling limit in the Payment of Gratuity Act by an amendment; was obliged to treat all such employees in the same manner. There is no counter affidavit filed and there is nothing discernible to differentiate the employees as unionised or non-unionised for the purpose of payment of gratuity. We hence set aside the order of the Tribunal and direct the respondent Company to pay the enhanced amounts of gratuity as provided

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for in Annexure A4. It is also declared that the directions apply only to those who retired after 01.01.2007, specifically the 26 petitioners herein.

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We make it clear that only 26 persons who have taken legal recourse, would be entitled to such amounts. The amounts shall be paid positively within a period of four months form the date of receipt of a certified copy of this judgment, failing which, it would attract interest at the rate of 6% from the date of Annexure A4 order or the date of retirement which ever falls later.

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Original petition stands allowed as a consequence of which the O.A also stands allowed. There is no order as to costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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Sd/V.G. ARUN, JUDGE.

Jma/10.12

O.P(CAT) No.42/2014

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 THE PHOTOSTAT COPY OF THE MEMORANDUM GOVERNMENT OF INDIA ENTERPRISE,PEROORKADA FACTORY,TRIVANDRUM-5.

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ANNEXURE A2 THE PHOTOSTAT COPY OF THE MEMORANDUM OF SETTLEMENT NO.8(54)09/ALC/TVM DATED 16.1.2010 ISSUED BY THE WORKMEN OF REGISTERED AND CORPORATE OFFICE,TRIVANDRUM-12 AND PEROORKADA FACTORY,TRIVANDRUM-5,AND THE MANAGEMENT OF HLL LIFECARE LIMITED,TRIVANDRUM.

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ANNEXURE A3 THE PHOTOSTAT COPY OF THE GAZETTE NOTIFICATION NO.S.O.1217(E)DATED 24.5.2010 ISSUED BY THE MINISTRY OF LABOUR AND EMPLOYMENT,NEW DELHI.

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ANNEXURE A4 THE PHOTOSTAT COPY OF THE EXTRACT OF THE OFFICE MEMORANDUM NO.2(70)/098DPE(WC)DATED 26.11.2008,ISSUED BY THE JOINT SECRETARY TO GOVERNMENT OF INDIA.

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ANNEXURE A5 THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 9.7.2010,SUBMITTED BY THE RETIRED EMPLOYEES HLL LIFE CARE,PEROORKADA,TRIVANDRUM,TO THE CHAIRMAN AND MANAGING DIRECTOR,HLL LIFE CARE LTD,POOJAPPURA,TRIVANDRUM.

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ANNEXURE A5(A) THE TRUE ENGLISH TRANSLATION OF ANNEXURE-A5.

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ANNEXURE A6 THE PHOTOSTAT COPY OF THE

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O.P(CAT) No.42/2014

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REPRESENTATION DATED 16.2.2011 SUBMITTED BY THE RETIRED EMPLOYEES AND HLL LIFE CARE LIMITED,TRIVANDRUM,TO THE CHAIRMAN AND MANAGING DIRECTOR,HLL LIFE CARE LTD.TRIVANDRUM.

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ANNEXURE A7 THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 9.2.2011 SUBMITTED BY THE GENERAL SECRETARY,HINDUSTAN LATTEX EMPLOYEES UNION(CITU), (INTUC)AITUC,TRIVANDRUM. ANNEXURE A7(A) THE TRUE ENLGLISH TRANSLATION OF ANNEXURE-A7

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ANNEXURE A8 THE PHOTOSTAT COPY OF THE JUDGMENT DATED 1.2.2012 IN W.P(C)NO.12562 OF 2011(U)PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM

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EXHIBIT P1 EXHIBIT P1 THE PHOTOSTAT COPY OF THE ORGINAL APPLICATION NO 288 OF 2012 DATED 15-03-2012 FILED BY THE PETITIONERS BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH

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EXHIBIT P2 EXHIBIT P2THE PHOTOSTATE COPY OF THE REPLY STATEMENT DATED 24-09-2012 IN O.S NO 288 OF 2012 FILED BY THE SECOND RESPONDENT BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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EXHIBIT P3 EXHIBIT P3 THE PHOTOSTAT COPY OF THE REJOINDER DATED 15-03-2012 IN O.A NO 288 OF 2012 FILED BY THE PETITIONERS BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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EXHIBIT P4 EXHIBIT P4 THE PHOTOSTATE COPY OF THE JUDGMENT DATED 18-10-2013 IN O.A NO 288 OF 2012 PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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O.P(CAT) No.42/2014

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EXHIBIT P5 THE PHOTOSTAT COPY OF THE LETTER NO.HLL/CS/29-272/2015/1329 DATED 08/05/2015 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER, HLL LIFECARE LIMITED, GOVERNMENT OF INDIA, TO THE SECOND PETITIONER. EXHIBIT P6 THE PHOTOSTAT COPY OF THE DEATH CERTIFICATE NO.DO250167-1509191 DATED 23/09/2015 ISSUED BY THE DEPARTMENT OF URBAN AFFAIRS, GOVERNMENT OF KERALA.

S.Janardhana Pillai v. the Union of India

Case brief

What is this about?

What did the court decide?

S.Janardhana Pillai v. the Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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