Kerala High Court
Principal vs Nalini Ramachandran on 2 November, 2020
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942
WP(C).No.13074 OF 2018(H)
PETITIONERS:
1 PRINCIPAL
I.C.A.ENGLISH HIGHER SECONDARY SCHOOL, VADAKKEKAD
(P.O), NHAMANANGHAT, THRISSUR-679563.
2 PRESIDENT ISLAMIC CULTURAL ASSOCIATION
VADAKKEKAD (P.O), NHAMANANGHAT, THRISSUR-679563.
BY ADVS.
SRI.P.RAMAKRISHNAN
SRI.C.ANIL KUMAR
SMT.ASHA K.SHENOY
SRI.T.C.KRISHNA
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.PRATAP ABRAHAM VARGHESE
RESPONDENTS:
1 NALINI RAMACHANDRAN
CHANDINI, THAMARAYOOR, KOTTAPPADY, THRISSUR-680505.
2 AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT AND
DEPUTY LABOUR COMMISSIONER
THRISSUR-680020.
3 THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY
ACT AND REGIONAL JOINT LABOUR COMMISSIONER
KAKKANAD, ERNAKULAM-682030.
R1 BY ADV. SRI.P.FAZIL
R1 BY ADV. SMT.JAYASREE MANOJ
R1 BY ADV. SRI.V.S.SREEJITH
GP- SRI.RON BASTIN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-
10-2020, THE COURT ON 02-11-2020 DELIVERED THE FOLLOWING:
WP(C).No.13074 OF 2018(H)
2
JUDGMENT
Dated this the 2nd day of November, 2020 By this petition, the petitioner-establishment is challenging the order passed by the Appellate Authority under the Payment of Gratuity Act, 1972 (Ernakulam) Ext.P5 thereby confirming the order dated 29/05/2017 passed by the Controlling Authority under the Payment of Gratuity Act, 1972. By this order, the Controlling Authority has held that respondent, Nalini Ramachandran, a teacher working with the petitioner is entitled to get an amount of Rs.1,50,037/- as gratuity with 10% interest from 1.04.2014.
2. Heard the learned counsel appearing for the petitioner at sufficient length of time. He has argued that the Payment of Gratuity Act came to be amended and teachers came within the purview of the term "employee" under the Payment of Gratuity Act with effect from 03.04.1997. The learned counsel urged that the respondent-employee has not completed 240 days of service in each year because of holidays to the school. She was WP(C).No.13074 OF 2018(H) 3 appointed in the year 2006 and therefore, her claim of having been appointed in the year 1987 is totally incorrect. The learned counsel further urged that even if the case of the respondent employee is accepted, then also, at the most, she can be held entitled for gratuity from 03.04.1997 and not from 03.06.1987 as held by the Controlling Authority. The learned counsel appearing for the respondent employee has opposed the petition by contending that a finding of fact cannot be interfered in the writ jurisdiction of this Court. He drew my attention to the response filed by the petitioner before the Human Rights Commission, wherein it was admitted that the respondent - employee had joined her services at the School, in the year 1987.
3. I have considered the submissions so advanced and also perused impugned order of the Appellate Authority as well as the order passed by the Controlling Authority quantifying the gratuity payable to the respondent - employee.
4. It needs to be pointed out that this Court, while exercising its writ jurisdiction cannot interfere in finding of fact WP(C).No.13074 OF 2018(H) 4 recorded by Authorities below, unless and until such finding is purely perverse. Evidence cannot be re-appreciated or re- weighed while exercising the writ jurisdiction. This Court cannot substitute its own finding if the decision of the Sub-Ordinate Tribunal is within limits of law. However error of law can be corrected while exercising writ jurisdiction so as to interfere with the judgment of the Tribunal.
5. Response filed by the petitioner herein before the Human Rights Commission in a complaint filed by the respondent-employee is at Exhibit-R1(d). In that reply, the petitioner-Management has candidly accepted the fact that the respondent-employee is in its employment right from the year 1987. The Controlling Authority, after considering the case of the respondent - employee and after hearing the parties has categorically concluded that the respondent herein is in continuous employment of the petitioner from 03.06.1987. There is finding of fact to the effect that the respondent- employee had completed 240 days of service in all these years. No element of WP(C).No.13074 OF 2018(H) 5 perversity in the finding of the Controlling Authority to this effect which is confirmed by the Appellate Authority is demonstrated before this Court. Hence I see no reason to interfere in the finding of fact recorded by the Controlling Authority under the Payment of Gratuity Act, 1972 which came to be confirmed by the Appellate Authority in this regard.
6. Now the only question which remains to be considered is whether there is error of law in the impugned order directing payment of gratuity to the respondent - employee for the period even prior to 03.04.1997 when teachers came within the definition of the term "employee" under Section 2(e) of the Payment of Gratuity Act, 1972. The Payment of Gratuity (Amendment) Act, 2009 came to be notified in the official gazette on 31.12.2009 and by this amendment act, the definition of the term "employee" came to be amended with effect from 03.04.1997. By virtue of the said amendment, teacher stand covered under the term "employee". The question whether the services rendered by the teachers prior to 03.04.1997 should be WP(C).No.13074 OF 2018(H) 6 counted for the purpose of calculation of gratuity was examined by the Hon'ble Division Bench of Gujarat High Court in Principal Vs. Mansukhbhai Arjanbhai Rachhadiya and Others reported Manu/GH/1749/2017=2018 LIC 239. The Division Bench of the Hon'ble Gujarat High Court concluded that services rendered by the teacher prior to 03.04.1997 should be counted for the purpose of calculation of actual amount of gratuity. Paragraphs 17, 17.2 and 20 of that judgment needs re-production and those reads thus:
"17. The next two questions which are posed for the consideration of this Court are whether the services rendered by the concerned teachers for the period prior to 03.04.1997 is required to be counted for the purpose of eligibility to get the gratuity as per Section 4 of the Payment of Gratuity Act, ie, while counting 5 years (continuance service) and whether the services rendered by the concerned teachers prior to 03.04.1997 also shall be counted for the purpose of calculation of gratuity or not?
17.2. Now, so far as another issue which arise for consideration of this Court viz. whether the services rendered by the concerned teachers for the period prior to 03.04.1997 is required to be considered for the purpose of WP(C).No.13074 OF 2018(H) 7 calculation of actual amount of gratuity is concerned, it is required to be noted that as per Section 4 of the Act, once the concerned employees/teachers has rendered continuance service for not less than 5 years; on his superannuation or on his retirement or resignation or on his death or disablement due to accident or disease, shall be entitled to gratuity. Therefore, gratuity is available/payable at the time mentioned in Sub-section (1) of Section 4. At that stage, how to calculate the amount of gratuity is contained in Section 4(2) of the Act.
Sub-section (2) of section 4 of the Act provides, for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned. Therefore, services rendered by the concerned teachers prior to 03.04.1997 is required to be counted for the purpose of computing the gratuity as per subsection (2) of Section 4. Any other interpretation would frustrate the object and purpose of the amendment of 2009 and shall be contrary to Section 13 A r/w Section 4 of the Payment of Gratuity Act. If the submissions on behalf of the management that the services rendered by the concerned teachers prior to 03.04.1997 is not required to be counted for the purpose of calculating actual amount of gratuity and the service WP(C).No.13074 OF 2018(H) 8 rendered by the concerned teacher after 03.04.1997 only is required to be counted for the purpose of calculation of actual amount of gratuity, in that case, in a given case, it may happen that in many of the cases either the concerned teachers may not get amount of gratuity and/or may even get the meager amount of gratuity. For example, if the concerned teacher has rendered continuance service of 20 years prior to 03.04.1997 and thereafter he has superannuated and/or retired in the month of May/June 1997, in that case he may not get any amount of gratuity. For example, after rendering 20 years of service prior to 03.04.1997, if a teacher is superannuated and/or retired in 1998, if the submission on behalf of the management is accepted, in that case, he will be paid the gratuity of only six months wages. The aforesaid would be denying them the gratuity which otherwise they are entitled to in view of amendment of 2009 in Payment of Gratuity Act. Under the circumstances, it is held that the services rendered by the concerned teachers prior to 03.04.1997 is required to be counted for considering continuance service for not less than five years and also shall be counted for the purpose of calculation of actual amount of gratuity as per sub-section (2) of Section 4 of the Act. Therefore, learned Single Judges have rightly held the aforesaid issue against the management and in favour of the concerned teachers. WP(C).No.13074 OF 2018(H) 9
20. The net result of the aforesaid discussion would be that the Payment of Gratuity (Amendment Act) 2009 shall be made applicable retrospectively w.e.f 03.04.1997. That all those teachers whose services are terminated for any reasons, mentioned in Section 4(1), after 03.04.1997 shall be entitled to the payment of gratuity. That the services rendered by the concerned teachers for the period prior to 03.04.1997 is required to be counted for the purpose of considering the eligibility to get the gratuity as contained in Section 4(2) of the Act, ie, for counting 5 years continuance service. That the services rendered by the concerned teachers for the period prior to 03.04.1997 shall be counted for the purpose of calculation of actual amount of gratuity. Therefore, question/issue Nos. 1 to 4 are answered accordingly and in favour of the concerned teachers and against the management."
7. I am in respectful agreement with the law laid down by the Division Bench of the Hon'ble Gujarat High Court, in the afore referred case.
In the light of foregoing discussion, the petition is devoid of any merit and the same is accordingly dismissed.
Sd/-
A.M.BADAR
Nsd JUDGE
WP(C).No.13074 OF 2018(H)
10
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF APPLICATION DATED 21.4.2015
SUBMITTED BY THE 1ST RESPONDENT BEFORE
THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF OBJECTION DATED DECEMBER
2016 FILED BY THE 2ND PETITIONER BEFORE
THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER DATED 29.5.2017 PASSED
BY THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF APPEAL MEMORANDUM DATED
8.8.2017 IN GA NO.21/2017 FILED BY THE
PETITIONERS BEFORE THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF ORDER DATED 21.3.2018 PASSED
BY THE 3RD RESPONDENT IN GA NO.21/2017.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF THE APPOINTMENT ORDER
NO.ICA/VKD/EST. DATED 03.06.1987 ISSUED BY THE 2ND PETITIONER.
EXHIBIT R1 B TRUE COPY OF THE LETTER DATED 15.03.2014 ISSUED BY THE 1ST PETITIONER HEREIN.
EXHIBIT R1 C TRUE COPY OF THE LETTER DATED 26.03.2014 ISSUED BY THE 2ND PETITIONER HEREIN.
EXHIBIT R1 D TRUE COPY OF THE REPORT DATED 10.11.2014 FILED BY THE 2ND PETITIONER HEREIN.
EXHIBIT R1 E TRUE COPY OF THE STATEMENT FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT AUTHORITY.