Kerala High Court
Yoshua.D vs The Catholic College Employees on 5 July, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939
WP(C).No. 18823 of 2013 (C)
----------------------------
PETITIONER :
------------------
YOSHUA.D., KOPPARAVADAKKETHIL,
CHANDANAPPILLI P.O., PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.P.N.MOHANAN
SMT.I.VINAYAKUMARI
RESPONDENTS :
-----------------------
1. THE CATHOLIC COLLEGE EMPLOYEES
CO-OPERATIVE BANK LTD. NO.Q.799
REPRESENTED BY SECRETARY,
PATHANAMTHITTA-689645.
2. ASSISTANT REGISTRAR,
OFFICE OF THE ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETIES (GENERAL),
KOZHENCHERI, PATHANAMTHITTA.
R1 BY ADVS. SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
R2 BY SENIOR GOVERNMENT PLEADER SRI.BIMAL K. NATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-11-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
bp
WP(C).No. 18823 of 2013 (C)
---------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1: COPY OF THE AUDIT OBJECTION OF THE DEPARTMENT
OF THE YEAR 2011-2012.
EXHIBIT P2: COPY OF THE LETTER DATED 5.7.2013 OF THE FIRST
RESPONDENT.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
SHAJI P.CHALY, J.
- - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.18823 of 2013
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 21st day of November, 2017
JUDGMENT
Petitioner joined in the service of the 1st respondent bank on 22.02.1980 and retired from service on 30.11.2011 with 32 years of service. The contentions advanced by the petitioner is that, since the bank is working in class III category of credit society, is entitled to appoint 14 staff members as per the post sanctioned in accordance with Appendix III. Therefore, the petitioner is entitled to get gratuity under the Payment of Gratuity Act, 1972 and the said amount was paid by the bank amounting to Rs.7,78,227/-. Apparently, the issue raised in this writ petition is against the recovery sought for by the respondent bank as per Ext.P2, for the excess amount paid. It is also evident from the contentions put forth by the petitioner that the 1st respondent bank is having less than 10 employees and therefore, in accordance with the provisions of the Payment of Gratuity Act, 1972, the Gratuity Act will not apply, however, such Societies are entitled to get gratuity in accordance with Rule 59 of the Co-operative Societies Rules, W.P.(C) No. 18823 of 2013 : 2 : 1969. As per the first proviso, the gratuity for every completed year of service calculated at 15 days wages per month is entitled to be received by the employees. According to the petitioner, since Appendix III of the Co-operative Societies Rules enables the 1st respondent bank to have employment of 14 employees, the 1st respondent bank will be governed by the provisions of the Payment of Gratuity Act, 1972. I do not find much legal force in the said contention. What is to be looked into is whether there is actual employment of 10 or more employees in the Society. Admittedly, there is no such employment, so as to have the benefit of the provisions of the Payment of Gratuity Act, 1972. The question remains to be considered is whether the petitioner is liable to pay the amount excessively received in accordance with the gratuity calculated as per the provisions of the Payment of Gratuity Act. On a reading of Rule 59 of Rules, 1969, it is evident that, restrictions are made to the payment of the gratuity and the petitioner is entitled to receive the gratuity in accordance with the provisions of Rule 59 alone. That being so, it is evident from the calculations made by the petitioner itself that, amounts are excessively paid to the petitioner. It can only W.P.(C) No. 18823 of 2013 : 3 : be treated as a mistaken payment, which is entitled to be recovered by the 1st respondent bank.
2. Having regard to the facts and circumstances of the case and hearing the respective counsel, I am of the considered opinion that, an opportunity can be given to the petitioner before executing Ext.P2 against the petitioner. Therefore, the 1st respondent bank is directed to issue a notice to the petitioner, within three weeks from the date of receipt of a copy of this judgment and the petitioner on receipt of the notice, is given the liberty to file a representation, which will be considered by the 1st respondent bank and a final decision shall be taken within one month thereafter. Ultimately if it is found that the petitioner is liable to repay the amount excessively drawn, sufficient installment shall be given to the petitioner for repayment of the same. Till such time, proceeding pertaining to Ext.P2, shall be kept in abeyance.
Writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE sm/