Kerala High Court
Dr.P.Narayanan Unni vs Kerala State Council For Science And on 29 January, 2019
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.34550/18 & c/cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940
WP(C).No. 34550 of 2018
PETITIONER/S:
DR.P.NARAYANAN UNNI,
AGED 60 YEARS,
SADASIVAM XII/212, VALLOTH ROAD,
TRIPRAYAR NATTIKA P.O., THRISSUR,
PIN - 680 566.
BY ADVS.
SRI.MANJU ANTONEY
SRI.I.YOHANNAN
RESPONDENT/S:
1 KERALA STATE COUNCIL FOR SCIENCE AND
TECHNOLOGY(KSCSTE)
REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT
SASTRABHAVAN, PATTOM P.O., THIRUVANANTHAPURAM,
PIN - 695 001.
2 THE MEMBER SECRETARY,
KERALA STATE COUNCIL FOR SCIENCE AND
TECHNOLOGY(KSCSTE),SASTRA BHAVAN,
PATTOM.P.O,THIRUVANANTHAPURAM-695001.
3 THE EXECUTIVE DIRECTOR,
CENTRE FOR WATER RESOURCES DEVELOPMENT AND
MANAGEMENT (CWRDM)
KUNNAMANGALAM(PO),KOZHIKODE-673571.
BY ADVS.
SRI.P.C.SASIDHARAN, SC, KSCSTE
SRI.ANOOP P.V., SC, CWRDM
SRI.RON BASTIAN,GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2019, ALONG WITH WP(C).39358/2018, WP(C).39379/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.34550/18 & c/cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940
WP(C).No. 39358 of 2018
PETITIONER/S:
1 MR.SREEVALLABHAN S,
AGED 61 YEARS,
S/O.SANKARAN KUTTY, SWATHI, KOTTAMPARAMBA.P.O.,
KOZHIKODE-673008.
2 MRS.VASANTHA P,
AGED 62 YEARS,
D/O.NANN.P, VASANTHAM, CHERINCHAL,
KARANTHUR.P.O., KOZHIKODE-673571.
3 MR A KABEER,
AGED 61 YEARS,
S/O M ABDUL KHADER, ARAKANDIYIL,
KARANTHUR.P.O., KOZHIKODE-673571.
4 MR. BEERAN M,
AGED 62 YEARS
S/O.UNNIKOYA, THATTARAMKUNI HOUSE,
NALLALAM.P.O, KOZHIKODE-673027.
BY ADVS.
SRI.MANJU ANTONEY
SRI.I.YOHANNAN
RESPONDENT/S:
1 KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY
(KSCSTE)
REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT, SASTRA
BHAVAN, PATTOM.P.O., THIRUVANANTHAPURAM,
PIN-695004.
2 THE MEMBER SECRETARY,
KERALA STATE COUNCIL FOR SCIENCE AND
TECHNOLOGY(KSCSTE), SASTRA BHAVAN, PATTOM.P.O.,
THIRUVANANTHAPURAM, PIN-695004.
W.P(c).No.34550/18 & c/cases 3
3 THE EXECUTIVE DIRECTOR,
CENTRE FOR WATER RESOURCES DEVELOPMENT AND
MANAGEMENT (CWRDM), KUNNAMANGALAM(PO),
KOZHIKODE-673571.
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVT.,
DEPARTMENT OF SCIENCE AND TECHNOLOGY,
THIRUVANANTHAPURAM, PIN-695001.
BY ADVS.
SRI.P.C.SASIDHARAN, SC, KSCSTE
SRI.ANOOP P.V., SC, CWRDM
SRI RON BASTIAN, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2019, ALONG WITH WP(C).39379/2018, WP(C).34550/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.34550/18 & c/cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940
WP(C).No. 39379 of 2018
PETITIONER/S:
1 MRS.B.S.USHAKUMARI,
AGED 62 YEARS,
W/O. B.RADHAKRISHNAN NAIR,
USHAS, KOTTAMPARAMBA P.O.,
KOZHIKODE - 673 008.
2 MRS. V.SUBAIDA,
AGED 60 YEARS,
W/O. IRBRAHIM, VELLENKANDY,
VELLIPARAMBA P.O., KOZHIKODE - 673 008.
3 MRS. SAROJINI T.K,
AGED 62 YEARS,
W/O. R.GOPALAN, SAGI NILAYAM, MADAPPALLY COLLEGE
P.O., VADAKARA, KOZHIKODE, PIN - 673 102.
4 MRS. KUMARI K.K.,
AGED 63 YEARS,
W/O. N. RADHAKRISHNAN, THURAVACKAL HOUSE, KADATHY,
MEKKADAMPU P.O., MUVATTUPUZHA, PIN - 682 316.
BY ADVS.
SRI.MANJU ANTONEY
SRI.I.YOHANNAN
RESPONDENT/S:
1 KERALA STATE COUNCIL FOR SCIENCE AND
TECHNOLOGY(KSCSTE)
REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT,
SASTRA BHAVAN, PATTOM P.O.,
THIRUVANANTHAPURAM, PIN - 695 001.
W.P(c).No.34550/18 & c/cases 5
2 THE MEMBER SECRETARY,
KERALA STATE COUNCIL FOR SCIENCE AND TECHNOLOGY
(KSCSTE), SASTRA BHAVAN, PATTOM P.O.,
THIRUVANANTHAPURAM, PIN - 695 001.
3 THE EXECUTIVE DIRECTOR,
CENTRE FOR WATER RESOURCES DEVELOPMENT AND
MANAGEMENT (CWRDM), KUNNAMANGALAM (P.O.),
KOZHIKODE - 673 571.
4 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVT., DEPARTMENT
OF SCIENCE AND TECHNOLOGY, THIRUVANANTHAPURAM,
PIN - 695 001.
BY ADVS.
SRI.P.C.SASIDHARAN, SC, KSCSTE
SRI.ANOOP P.V., SC, CWRDM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2019, ALONG WITH WP(C).39358/2018, WP(C).34550/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.34550/18 & c/cases 6
P.V.ASHA, J.
-----------------------------------------------------
W.P(C) Nos.34550 of 2018-P, 39358 of 2018-T,
and 39379 of 2018-V
----------------------------------------------------------------------
Dated this the 29th day of January, 2018
JUDGMENT
All the petitioners in these writ petitions retired from Centre for Water Resources Development and Management which is one of the institutions under the Kerala State Council for Science, Technology & Environment (`Council' for short), are claiming gratuity without any ceiling.
2. The petitioner in W.P(c).No.34550 of 2018 retired from service on superannuation on 30.06.2009 after rendering 29 years of service.
3. Petitioners 1 to 4 in W.P(c).No.39358 of 2018 retired from service on 31.11.2017, 31.1.2017, 30.11.2017 and 30.04.2016 respectively after rendering 34, 38, 39 and 32 years of service respectively from the Council.
4. Petitioners 1 to 4 in W.P(c).No.39379 of 2018 retired from service on 31.10.2016, 31.5.2018, 30.10.2016 and 30.11.2015 respectively after rendering 38, 36, 35 and 34 years of service respectively from the Council.
5. The grievance of the petitioners is that even after several years of their retirement they are not paid gratuity in accordance with the rules prevailing in the respective institutions, which do not fix any ceiling.
6. In these cases the respondents have filed counter affidavits stating that the respondent institutions are governed by Rule 14 of Section II of Part I of W.P(c).No.34550/18 & c/cases 7 KSCSTE Rules and Regulations. It is stated that premium is paid to the LIC for payment of gratuity to the employees. However it is stated that gratuity claims cannot exceed the limit fixed in Section 4(3) of the Payment of Gratuity Act, 1972. It is stated that the Council has instructed the institutions to limit the gratuity to Rs.10,000,00/-. It is also stated that the Council has sought instructions in the matter from Government.
7. Rule 14 of Section 2 of Part I of the KSCSTE Rules and Regulations, which govern the petitioners in all these institutions reads as follows:
"Clause 14. GRATUITY 14.1: In addition to the benefits otherwise admissible, an employee retiring from service under Rule 4 may be granted by competent authority, gratuity at the rate of half month's emoluments which the employee drew last, for each completed year of service qualifying for gratuity, provided such employee has rendered not less than five years of service in the Council or any of the Centres under the Council. Note: i. An employee whose service is terminated under Rule 3 or resigns under Rule 5 may also be granted by the competent authority, gratuity at the above rate.
ii. For computing half months emoluments 26 days will be reckoned as a month and the amount payable will be calculated as follows:
Monthly Number of years
emoluments eligible x 15 days x of qualifying
for gratuity service
---------------------------------------------------------------------------------------
26 days iii. In case where an employee dies while in service or after retirement, but before the employee has received the gratuity, the gratuity shall be paid on the basis of the nomination filed by the employee and accepted by the competent authority. If no such nomination is made it shall be paid to the legal heirs of the employee.
iv. The emoluments for the purpose of this rule shall be pay (Sic) as defined in Rule 2 xxii and dearness allowance.
14.2. Service of six months and above shall be reckoned as one year for this purpose. 14.3. Unless, otherwise specifically provided, the service that qualifies for increment shall qualify for gratuity.
14.4. Any amount owed by a retired employee to the Council shall be recovered from the gratuity of the employee."
No ceiling is fixed in rule 14. I have already considered a similar issue in the judgment dated 1.6.2017 in W.P(C).No.11220 of 2015 in which the petitioner who retired from service from the Centre for Water Resources Management claimed W.P(c).No.34550/18 & c/cases 8 balance gratuity as she was paid only a sum of Rs.8,16,144/-. In that case, after considering the contentions on either side and following the judgment of this Court in W.A.No.1 of 2015 as well as the judgment in W.P(c).No.2241 of 2012, I had directed the respondents to disburse the balance gratuity to the petitioner, reckoning the same with reference to the completed years of her service without any ceiling, along with interest @ 10% per annum.
8. The very same Rule 14 was the subject matter of consideration in W.P.(C) No.2241 of 2012 filed by employees of the Kerala Forest Research Institute, one of the institutions under KSCSTE and those batch of cases, as can be seen from paragraph 55 of the judgment dated 01.10.2015 of the Division Bench in W.A. 1 of 2015 and connected cases also, which reads as follows:
"55. In the cases before us the payment of gratuity is regulated by Rule 14 as quoted above. Rule 14 does not contain any provision by which any ceiling limit to the payment of gratuity is provided, as provided under Section 4(3) of 1972 Act. With regard to employees of Kerala Forest Research Institute there was an internal arrangement with LIC for payment of gratuity and from the materials on record it is proved that LIC has been making payment of gratuity to the employees without any ceiling limit as provided under Section 4(3). We have already noticed that payment of gratuity of Rs.15 lakhs to Dr C.Renuka and Dr George Mathew in W.P(c) No.25884 of 2011 was paid in the year 2011 by the cheque issued by LIC. We thus conclude that Clause 14 of the rules and regulations framed by the Council provides for better terms of gratuity under the contract of service with the employer and payment of gratuity to writ petitioners was fully protected by Section 4(5) of the Act and the ceiling of Rs.10 lakhs as on date as provided under Section 4(3) was not applicable in payment of gratuity to the writ petitioners. The learned Single Judge did not commit any error in directing payment of gratuity to the petitioners disregarding the ceiling as prescribed in Section 4(5) of the Act."
9. After analysing all the rules relating to the constitution of the Council, and the rules framed by it, the Division Bench, in paragraph 60 of the judgment, held that there is no express rule empowering the State Government to issue any direction to the Council on service matters of any employee or officer under it or W.P(c).No.34550/18 & c/cases 9 the institutes thereunder and hence it was not open to the State Government to direct the Council not to pay gratuity in excess of Rs.10 lakhs. When there is a beneficial provision in the rules governing the petitioners the ceiling fixed in central rules cannot have any impact on the petitioners unless the central rules are more beneficial.
10. The learned Standing Counsel for the respondents submitted that S.L.Ps are pending against the judgment in the Writ Appeal and the issue is pending before the Apex Court. But I do not find any reason for not following the judgment of the Division Bench or the subsequent judgment, rendered on the very same issue .
In the above circumstances, the writ petitions are allowed declaring that the petitioners are entitled to be paid the full amount of gratuity due to them in accordance with Rule 14 of the KSCSTE Rules and Regulations i.e, with reference to the number of years of service rendered by them without any ceiling and there shall be a direction to the Kerala State Council for Science, Technology & Environment and the Centre for Water Resources Development Management (CWRDM) under it to disburse the balance gratuity due to the petitioners, within a period of two months from the date of receipt of a copy of this judgment. In case the payment is not made within the stipulated period, it will carry interest @ 10% per annum from the next day after the retirement of the petitioners.
Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(c).No.34550/18 & c/cases 10 APPENDIX OF WP(C) 34550/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF RELEVANT PAGES OF EXTRACT OF KSCSTE SERVICE RULES.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF EXTRACT OF ERSTWHILE CWRDM SERVICE PART II RULE 44.
EXHIBIT P3 TRUE COPY OF COUNCIL(M)ORDER
NO.3/2010/KSCSTE DATED 08.01.2010.
EXHIBIT P4 TRUE COPY OF CWRDM PROCEEDINGS NO E1-275/08
DATED 21.01.2010.
EXHIBIT P5 TRUE COPY OF COUNCIL(M)ORDER
NO.64/2010/KSCSTE LETTER
NO.3070/C5/2011/KSCSTE DATED 20.9.2011.
EXHIBIT P6 TRUE COPY OF RULE 4 OF "PAYMENT OF GRATUITY
ACT 1972".
W.P(c).No.34550/18 & c/cases 11
APPENDIX OF WP(C) 39358/2018
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF EXTRACT OF KSCSTE SERVICE
RULES SEE II PART I RULE 14.
EXHIBIT P2 TRUE COPY OF EXTRACT OF ERSTWHILE CWRDM
SERVICE PART II RULE 44.
EXHIBIT P3 TRUE COPY OF COUNCIL (M) ORDER
NO.3/2010/KSCSTE DATED 8.1.2010.
EXHIBIT P4 TRUE COPY OF CWRDM PROCEEDINGS NO.E1-275/08
DATED 21.1.2010.
EXHIBIT P5 TRUE COPY OF COUNCIL (M) ORDER
NO.64/2010/KSCSTE DATED 21.5.2010.
EXHIBIT P6 TRUE COPY OF KSCSTE LETTER
NO.3070/C5/2011/KSCSTE DATED 20.9.2011.
EXHIBIT P7 TRUE COPY OF RULE 4 OF PAYMENT OF GRATUITY
ACT 1972.
W.P(c).No.34550/18 & c/cases 12
APPENDIX OF WP(C) 39379/2018
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF RELEVANT PAGES OF KSCSTE
SERVICE RULES SEC II PART I RULE 14.
EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF ERSTWHILE
CWRDM SERVICE RULES, PART II, RULE 44.
EXHIBIT P3 TRUE COPY OF CWRDM PROCEEDINGS NO.
CWRDM/E1-1671/2017/10TH PR DATED
07.11.2017.
EXHIBIT P4 TRUE COPY OF COUNCIL (M) ORDER NO.
64/2010/KSCSTE DATED 21.05.2010.
EXHIBIT P5 TRUE COPY OF RULE 4 OF "PAYMENT OF GRATUITY
ACT 1972".