Kerala High Court
The Proprietor vs The Controlling Authority Under The ... on 20 February, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941
WP(C).No.4886 OF 2020(I)
PETITIONERS:
1 THE PROPRIETOR,
SUSHEELA RADHAKRISHNAN, NAVA BHARAT CASHEW FACTORY,
EAST JN., MUKHATHALA-691577, KOLLAM.
2 THE PROPRIETOR AND MANAGER,
SUSHEELA RADHAKRISHNAN, NAVA BHARAT CASHEW,
RESIDING AT C.M.C.-10, DHWARAKA,
CHERTHALA-688524, ALAPPUZHA.
BY ADV. SRI.C.P.SABARI
RESPONDENTS:
1 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF
GRATUITY ACT, 1972
AND DEPUTY LABOUR COMMISSIONER,
KOLLAM-691305.
2 APPELLATE AUTHORITY UNDER THE PAYMENT OF
GRATUITY ACT, 1972 AND REGIONAL JOINT LABOUR
COMMISSIONER, KOLLAM-691305.
3 SMT.ARUNDHATHY,
D/O.RAJAMMA, CHARUVILA PADINJATTATHIL,
MUKHATHALA.P.O., THRIKKOVILVATTOM VILLAGE,
KOLLAM -691577.
4 DILEEP KUMAR,
KRISHNA BHAVAN, MUNDAKKAL,
KOLLAM-691577.
SRI RON BASTIAN GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.4886 OF 2020(I) 2
JUDGMENT
Under challenge in this Writ Petition filed under Article 226 of the Constitution of India is the order passed by the controlling authority under the Payment of Gratuity Act, 1972 determining the amount of gratuity payable to the 3rd respondent employee, which order stands confirmed by the Appellate Tribunal by Ext.P9 order.
2. Brief facts which are to be noticed for deciding this petition are that Late Sri.N.Krishnan was the owner of a cashew factory situated at Mukhathala run in the name and style as "Navabharat Cashew Factory". The 3rd respondent was an employee in the said factory. She retired from service on 31.12.2008 after completing 34 years of continuous service. After retirement as aforesaid, she filed an application under Section 7 of the Payment of Gratuity Act, 1972 seeking determination of gratuity and for a direction to the respondents to pay the amount determined. Originally, the proprietor of Navabharat Cashew Factory and its Manager, Susheela Radhakrishnan were arrayed as the opposite parties. In the course of proceedings, the brother of Susheela Radhakrishnan, Sri.Dileep Kumar, was arrayed as the additional 3rd opposite party.
WP(C).No.4886 OF 2020(I) 3
3. The petitioner entered appearance and it was contended that she became the Proprietrix of the factory only on 17.8.2009 on which day, the factory licence was transferred to her name under the provisions of the Factories Act. It is contended that on the date of retirement of the employee, her brother, Sri.Dileep Kumar, was the licensee. She had no control or authority over the running of the cashew factory on 31.12.2008, the date on which the employee had left the employment. She denied that there was an employer-employee relationship between the employee and herself.
4. The 3rd opposite party on the other hand contended that the ownership, control and management of the factory was originally with N.Krishnan, the father of the 2nd and 3rd opposite parties. By Ext.D4 partition deed, which is dated 27.6.2008, the ownership, control and management of the factory was taken over by the 2nd opposite party/ petitioner herein. He relied on Ext.D1 to bring home his point that the 2 nd opposite party remitted fees on 17.10.2008 to transfer the factory licence in her name. He also relied on Ext.D2 and D3 to bring home his point that the factory was in joint ownership and possession of the opposite party Nos. 2 and 3.
5. Before the controlling authority, the employee got herself WP(C).No.4886 OF 2020(I) 4 examined as AW1 and on her side, Exts.A1 to A7 were marked. On the side of the petitioner herein the Manager of the cashew factory was examined as DW1 and Exts.D1 to D3 were marked. On the side of the 3 rd opposite party, Ext.D4 partition deed was marked through DW1.
6. The controlling authority, after considering the evidence let in by both sides, came to the conclusion that on the date of the employee leaving the service, the petitioner herein had the ultimate control over the affairs of the establishment in view of Ext.D4 and therefore, she was bound to pay the gratuity as determined to the employee. The aforesaid order was challenged before the appellate authority. The order passed by the controlling authority was confirmed by Ext.P9 order.
7. Heard Sri.C.P.Sabari, the learned counsel appearing for the petitioner, who referred to the evidence let in by AW1 before the controlling authority and also the factory license, a copy of which is produced as Ext.P1 and contended that as on the date of retirement of the employee, the 4 th respondent herein was the employer. According to the learned counsel, the 3rd respondent while in the box had asserted that she had no relationship whatsoever with the petitioner herein and that she had not received any wages from her.
8. Heard the learned Government Pleader and I have considered WP(C).No.4886 OF 2020(I) 5 the submissions advanced.
9. The records would show that the partition deed was executed on 27.06.2008 and the factory and its machinery were transferred to the petitioner herein. The 4th respondent is none other than the brother of the petitioner herein and it appears that he was the licensee of the cashew factory till it was transferred to the name of the petitioner on 17.8.2009. Section 2(f) of the Payment of Gratuity Act defines the term employer. It reads as follows.
"Employer' means, in relation to any establishment, factory, mine, oilfield, plantation, port, Railway Company or shop
(i) Belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or Department concerned,
(ii) Belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority,
(iii) In any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;"WP(C).No.4886 OF 2020(I) 6
10. It is clear from the above definition that the employer is the person or the authority, which has the ultimate control over the affairs of the establishment or the factory, as the case may be. Insofar as the 3 rd respondent is concerned, the petitioner was the person in ultimate control and management of the factory on the date on which she had relieved from service. Merely because, the license was in the name of the brother will not make any difference as Ext.D4 was executed during the subsistence of the licence. Immediately after execution of Ext.D4, applications were submitted before the concerned authorities for transfer of licence in the name of the petitioner, who became the owner of the factory. The controlling authority as well as the appellate authority had taken note of Exhibits D1 to D4 and had concluded that Exhibits D2 and D3 having been executed after Exhibit D4, the intention of the parties was to confer all rights over the factory to the petitioner herein.
11. After having gone through the entire records, I am of the considered opinion that the controlling authority as well as the Appellate Authority have carefully considered the evidence let in and had come to the conclusion that there is an employee-employer relationship and hence, the employee is entitled to gratuity. The said finding arrived at by the lower authority as a result of appreciation of evidence from the materials WP(C).No.4886 OF 2020(I) 7 produced cannot be reopened by this Court. It is trite that in exercise of jurisdiction under Article 226 of the Constitution of India, this Court does not sit as a court of appeal over the jurisdiction of the lower authority. Having gone through the records, I have no doubt in my mind that the authorities have acted within jurisdiction, adhering to the principles of natural justice, and the findings arrived at by the lower authority is clearly based on the evidence tendered before them. In that view of the matter, no interference is warranted in exercise of the powers under Article 226 of the Constitution of India.
This Writ Petition is found devoid of merits and the same is dismissed. Parties are left to suffer their respective costs.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE IAP WP(C).No.4886 OF 2020(I) 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE LICENSE DATED
31.3.2008.
EXHIBIT P2 A TRUE COPY OF THE LICENSE DATED
17.8.2009 ISSUED IN THE NAME OF THE
SECOND PETITIONER TO RUN THE FACTORY.
EXHIBIT P3 A TRUE COPY OF THE APPLICATION
G.C.NO.99/2013 DATED 18.5.2012 FILED BY
THE THIRD RESPONDENT BEFORE THE FIRST
RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE WRITTEN STATEMENT
DATED 2.7.2013.
EXHIBIT P5 A TRUE COPY OF THE I.A FOR IMPLEADING
DATED 9.1.2014 FILED BY THE THIRD
RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE ORAL DEPOSITIONS
DATED 16.10.2015 GIVEN BY THE
APPLICANT/THIRD RESPONDENT
SMT.ARUNDHATHY.
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 17.1.2017
PASSED BY THE FIRST RESPONDENT
CONTROLLER OF GRATUITY.
EXHIBIT P8 A TRUE COPY OF THE CHEQUE BEARING
NO.879402 DATED 4.4.2017 DRAWN IN THE
NAME OF DEPUTY LABOUR COMMISSIONER FROM
THE DHANALAKSHMI BANK, KOLLAM.
EXHIBIT P9 A TRUE COPY OF THE ORDER DATED
25.11.2019 PASSED BY THE SECOND
RESPONDENT IN G.A.NO.32/2017.
EXHIBIT P10 A TRUE COPY OF EXT.D2 LETTER
DATED3.8.2009 MARKED IN EVIDENCE.
EXHIBIT P11 A TRUE COPY OF EXT.D3 LETTER DATED
31.7.2009 MARKED IN EVIDENCE.
WP(C).No.4886 OF 2020(I) 9
RESPONDENT'S/S EXHIBITS:
NIL