Dismissed

M/S. Aa Nuts, v. the State of Kerala

Kerala HC10 Aug 2023WP(C)/17575/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging an ex parte order under the Payment of Gratuity Act, 1972. The Court held that the statutory remedy for review was not exhausted within the stipulated period and that an appeal rejected for non-deposit of fees barred recourse to Order 9 Rule 13 of the CPC.

What did the court decide?

The writ petition involving the writ jurisdiction under Article 226 of the Constitution of India to interfere with the ex parte order has been dismissed with no direction to the Controlling Authority.

M/S. Aa Nuts, Vs the State of Kerala — Service and Employment | Kerala HC (2023)

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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 MURALI PURUSHOTHAMAN

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THURSDAY, THE10TH DAY OF AUGUST 2023 / 19TH SRAVANA, 1945
WP(C) NO.17575 OF 2023

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PETITIONER:

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M/S.AA NUTS, KILIKOLLOOR, KOLLAM-691004,
REP.BY ITS PARTNER M.A ANZAR MOHAMMED,
S/O.M.ABDUL AZEEZ, SHAMAN GARDENS, KILIKOLLOOR,
KOLLAM, PIN – 691004

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BY ADV ESM.KABEER

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RESPONDENTS:

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1 THE STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF LABOUR, SECRETARIAT, TRIVANDRUM, PIN – 695001

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2 THE REGIONAL JOINT LABOUR COMMISSIONER OFFICE OF REGIONAL JOINT LABOUR COMMISSIONER, KAANKATHU MUKKU, KOLLAM, PIN – 691013

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3 THE DEPUTY LABOUR COMMISSIONER (THE controlling authority UNDER THE PAYMENT OF GRATUITY ACT, 1972), KAANKATHU MUKKU, KOLLAM, PIN – 691013

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ADDL.4 BASHEER, S/O.ALIYARKUNJU, KALLUMPURATHU HOUSE, EDAVATTOM, CHANTHANATHOPE P.O., KOLLAM

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BY ADVS
SRI.R.KISHORE
SMT.PARVATHY K., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) No.17575 of 2023

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JUDGMENT

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The petitioner, a partnership firm, has filed
this writ petition challenging Ext.P1 order passed
by the controlling authority under the Payment of
Gratuity Act, 1972 [for brevity, ‘the Act’] on an
application preferred by the 4threspondent
employee.

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2. The 4th respondent filed an application
before the 3rdrespondent, the controlling
authority, claiming gratuity. According to the 4th
respondent, she started working in the
establishment of the petitioner from 21.06.1990
and continued till 31.12.2018 and her last drawn
salary was Rs.20,000/-. It was contended that
though she requested the employer to determine and
pay the gratuity, the same was not paid. The
controlling authority issued notice to the

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WP(C) No.17575 of 2023 3

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employer. However, the notice was returned with
the postal endorsement “intimation 06.07.2022”.
Finding that the employer has willfully refused
notice, the employer was declared ex parte on
17.08.2022. The controlling authority proceeded
with the matter and passed Ext. P1 order holding
that the 4th respondent is entitled for gratuity of
Rs.3,34,615/- with 10% interest from 01.01.2019.

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3. According to the petitioner, they did not
receive the notice of the proceedings before the
controlling authority and came to know about the
award only when revenue recovery proceedings were
initiated against them. Though an appeal was
preferred against Ext.P1 order, it was rejected
for non-deposit of the amount required under the

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2nd proviso to Section 7(7) of the Act. The
petitioner,thereafter,submittedExt.P2

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representation before the controlling authority
stating that they have not received any notice in

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WP(C) No.17575 of 2023 4

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connection with the proceedings before the
authority and accordingly prayed for setting aside
the ex parte order and to rehear the matter. Since
there was no response from the controlling
authority on Ext.P2, the petitioner has filed this
writ petition.

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4. Heard Sri.E.S.M.Kabeer, the learned counsel
for the petitioner, Sri.R.Kishore, the learned
counselforthe4threspondentand
Sri.V.S.Sreejith, the learned Government Pleader.

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5.The notice issued to the petitionerby the
controlling authority was returned with the postal
endorsement “intimation 06.07.2022”. Finding that
the petitioner has willfully refused notice, the
petitioner was declared ex parte on 21.12.2022.
Since the notice was returned with the
endorsement 'intimation', it will amount to deemed
service of notice on the petitioner. Rule 11(5) of
the Payment of Gratuity (Central) Rules, 1972

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WP(C) No.17575 of 2023 5

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provides that, if the employer concerned fails to
appear on the specified date of hearing after due
service of notice without sufficient cause, the
controlling authority may proceed to hear and
determine the application ex parte. It further
provides that if the applicant fails to appear on
the specified date of hearing without sufficient
cause, the controlling authority may dismiss the
application. However, the proviso to Rule 11(5)
provides that an order under Rule 11(5) may, on
good cause being shown within 30 days of the said
order, be reviewed and the application re-heard
after giving not less than 14 days’ notice to the
opposite party of the date fixed for re-hearing
the application. The petitioner did not approach
the controlling authority to set aside the ex
parte order and toreview the order within the
statutory period. It is trite law that, once a
cause of action has become time barred, a litigant

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WP(C) No.17575 of 2023

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cannot seek to revive the same by taking recourse
to the extra ordinary jurisdiction of this Court
under Article 226 of the Constitution of India.

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6. It is seen from the averments in the writ
petition that though the petitioner had preferred
an appeal against Ext.P1 order, the same was
rejected since the petitioner did not deposit the
amount as required under the second proviso to
Section 7(7) of the Act. There is no challenge to
the order rejecting the appeal. Sri. Kishore,
referring to the explanation to Order 9 Rule 13 of
the Code of Civil Procedure and the decision of
the Hon'ble Supreme Court in Shyam Sundar Sarma v.
Pannalal Jaiswal [2005 KHC 34: 2005 (1) KLT 198:
(2005) 1 SCC 436: AIR 2005 SC 226], would contend
that an application under Order 9 Rule 13 of CPC
to set aside Ext. P1 award would not lie before
the controlling authority as the appeal has been
rejected for non deposit of the amount as required

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WP(C) No.17575 of 2023

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under the second proviso to Section 7(7) of the
Act. In Shyam Sundar Sarma, the Hon'ble Supreme
Court, considering the scope of the explanation to
Order 9 Rule 13 of the CPC, held as follows:

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 “13. In the context of the explanation to
O.9 R.13 of the Code, the question was
squarely considered by this Court in Rani
Choudhury's case (supra). The High Court, in
our view, has rightly held that the decision
of this case is directly covered by that
decision. Therein, the plaintiff, the wife,
obtained an ex parte decree for divorce
against the husband, the defendant. The
husband preferred an appeal in the High Court
against the decree and also made an
application under S.5 of the Limitation Act
for condoning the delay in filing that
appeal. The High Court dismissed the appeal
as being time barred. The husband, the
defendant, then filed a petition under O.9
R.13 of the Code for setting aside the ex
parte decree along with an application under
S.5 of the Limitation Act. The Trial Court
dismissed the application holding that no
sufficient cause was made out for condoning

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WP(C) No.17575 of 2023

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the delay in filing the petition under O.9
R.13 of the Code. The husband filed a Civil
Miscellaneous Appeal in the High Court
challenging the said order of the Trial
Court. The High Court took the view that the
explanation to O.9 R.13 of the Code did not
create a bar to the maintainability of the
petition under that rule as the appeal
against the ex parte decree had been
dismissed not on merits but on the ground of
limitation by not accepting the application
for condonation of delay which meant that no
appeal was preferred in the eye of law. This
view of the High Court was challenged in
appeal before this Court. It was argued that
the High Court has misunderstood the scope
and ambit of the explanation to O.9 R.13 of
the Code and that in the circumstances, the
High Court should have held that the petition
under O.9 R.13 of the Code would not lie.
This Court accepted that contention. This
Court held that where there has been an
appeal against an ex parte decree and the
appeal has not been withdrawn by the
appellant and had been disposed of on any
ground the application under O.9 R.13 of the
Code would not lie and should not be

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WP(C) No.17575 of 2023

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entertained. Hence, even though the appeal
against the ex parte decree was disposed of
on the ground of limitation and not on
merits, the explanation to O.9 R.13 of the
Code was attracted and hence no petition
under O.9 R.13 of the Code would lie. On the
scope of the explanation, it was stated that
the disposal of the appeal as contemplated in
the explanation was not intended to mean or
imply a disposal on merits resulting in the
merger of the decree of the Trial Court with
a decree, if any, of the Appellate Court on
the disposal of the appeal. The disposal of
the appeal may be on any ground and though
the withdrawal of an appeal by an appellant
is also to be considered a disposal of the
appeal, the same has been expressly exempted
by the explanation. It was also observed that
the legislative intent incorporated in the
explanation to O.9 R.13 of the Code was to
confine the defendant to a single course of
action and to discourage the prolonging of
the litigation on the ex parte decree,
namely, by preferring an application to the
Trial Court under O.9 R.13 of the Code for
setting aside the decree and by filing an
appeal to a superior Court against it. If he

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WP(C) No.17575 of 2023

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did not withdraw the appeal filed by him or
allowed the appeal to be disposed of on any
other ground, he was denied the right to
apply under O.9 R.13 of the Code. The Court
also clarified that by the introduction of
the explanation, the area of operation of the
doctrine of merger was enormously extended.
By virtue of the explanation, the disposal of
the appeal on any ground whatever, apart from
its withdrawal, constituted sufficient reason
for bringing the ban into operation. In the
light of this, it was held that though in
that case the appeal filed by the husband
against the ex parte decree was dismissed on
the ground of it being barred by limitation,
it was a disposal of the appeal and the
petition under O.9 R.13 of the Code was hit
by the explanation. In P. Kiran Kumar v. A.S.
Khadar and Others (JT 2002 (Suppl.1) SC 29 :
(2002 (5) SCC 161) this Court followed the
decision in Rani Choudhury (supra) and held
that the dismissal of the appeal against an
ex parte decree as barred by limitation,
prevented the Trial Court which passed the ex
parte decree, from exercising its power under
O.9 R.13 of the Code in view of the
explanation.”

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WP(C) No.17575 of 2023

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(underlining supplied by this Court)

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8. Since the appeal filed by the petitioner
has been rejected for non deposit of the amount as
required under the second proviso to Section 7(7)
of the Act, the petitioner cannot now fall back
upon the remedy under Order 9 Rule 13 of the CPC.

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9 . Payment of Gratuity Act, 1972 is a welfare

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legislation meant for the benefit of the employees . It is a complete code by itself. For the enforcement of its provisions, the Act provides for hierarchy of remedies. Section 4 of the Act casts an obligation upon an employer to pay the gratuity due to an employee on termination of his employment. Section 7 of the Act obliges the employer to determine the amount of gratuity and pay the same to the persons entitled to receive the same. Section 7 (4)(b) deals with adjudication of dispute by the controlling authority. Section

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WP(C) No.17575 of 2023

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7(7) provides for appeal against the order of the
controlling authority. Though the controlling
authority issued notice to the petitioner in the
Gratuity case, the petitioner failed to appear
before the controlling authority and the
petitioner was set ex parte and Ext.P1 award was
passed. The petitioner did not avail of the remedy
provided under Rule 11 (5) of the Rules to set
aside the ex parte order and toreview the order
within the statutory period. The said causeof
action having become time barred, the petitioner
cannot seek to revive the same invokingthe writ
jurisdiction of this Court under Article 226 of
the Constitution. Since the appeal filed by the
petitioner has been rejected for non deposit of
the amount as required under the second proviso to
Section 7(7) of the Act, the petitioner cannot
invoke the remedy under Order 9 Rule 13 of the CPC
and cannot seek a direction to the controlling

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WP(C) No.17575 of 2023

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authority to consider Ext. P2 representation filed
for setting aside the ex parte order and to rehear
the matter. I do not find any reason to interfere
with Ext. P1 order passed by the controlling
authority invoking the jurisdiction under Article
226 of the Constitution of India.

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The writ petition fails and accordingly, the
same is dismissed.

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Sd/-

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 MURALI PURUSHOTHAMAN
 JUDGE

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sp/10/08/2023

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WP(C) No.17575 of 2023

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXHIBIT-P1COPY OF THE ORDER PASSED BY THE 3RD
RESPONDENT DATED 21.12.2022

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EXHIBIT-P2COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE 3RD RESPONDENT DATED
10.05.2023

M/S. Aa Nuts, v. the State of Kerala

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M/S. Aa Nuts, v. the State of Kerala

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