Kerala High Court
Unni Mammu Haji vs State Of Kerala on 14 March, 1989
Equivalent citations: (1989)IILLJ493KER
JUDGMENT
Balakrishna Menon J.
1. This batch of writ appeals and writ petitions is by the owners of motor transport undertakings in the State of Kerala. They challenge the validity of Section 4 of the Kerala Motor Transport Workers Welfare Fund Act, 1985 (the Act for short) and the scheme issued by the Government under Section 3 of the Act. A learned Single Judge of this Court has upheld the validity of Section 4 and the scheme as per the common judgment in a batch of writ petitions. The writ appeals are against the judgment of the learned Single Judge reported in 1987 Lab, I.C. 796. The learned Judge has repelled the contention that the relevant provisions of the Act, especially Section 4, are violative of Article 14 of the Constitution. The contention that the Act authorises excessive delegation of power to the Government is also negatived. The Act, according to the learned Judge, gets the protection of Article 31-C of the Constitution and for that reason is immune from attack as violative of Articles 14 and 19 of the Constitution.
2. A general conspectus of the Act and the Scheme is given in the judgment under appeal, and it is unnecessary to repeat the same in this judgment. The Act replaced Ordinance 38 of 1985 that had come into force on 27th June 1985. The Government had on 11th July 1985 brought into force a scheme under Section 3 of the Ordinance for the implementation of its provisions and the said scheme, by virtue of Section 26(2) of the Act, is to be deemed to have been issued under the Act. The bill as passed by the Legislative Assembly of the State was reserved for the assent of the President, the President gave his assent on 12th August 1985 and the Act was published in the gazette dated 16th August 1985. The Preamble of the Act shows that it is to provide for the constitution of a fund to promote the welfare of motor transport workers in the State of Kerala. The Act shall be deemed to have come into force on 27th June, 1985 (Section 1(3). Section 3 of the Act provides for the framing of a scheme and for constitution of a fund in accordance with the Act and the Scheme. The expression 'employee' is defined in Section 2(d) as a person employed for wages in a motor transport undertaking. "Motor transport undertaking" as per its definition in Section 2(h) means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward and includes a private carrier. Section 2(e) defines the term "employer" as a person or the authority having ultimate control over the affairs of a motor transport undertaking. Section 4 of the Act reads:
Contributions to the Fund.- (1) The contribution which shall be paid by the employer to the Fund shall be eight percent of the wages for the time being payable to each of the employees and employees' contribution shall be equal to the contribution payable by the employer in respect of him;
Provided that nothing in this sub-section shall apply to a motor transport undertaking to which the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952), apply.
(2) The employer shall, in addition to the contribution payable under Sub-section (1), contribute to the Fund as gratuity an amount equal to five percent of the wages for the time being payable to each of the employees; Provided that nothing in this sub-section shall apply to a motor transport undertaking to which the provisions of the Payment of Gratuity Act, 1972 (Central Act 39 of 1972), apply.
(3) Where the amount of any contribution payable under this Act involves a fraction of a rupee, such fraction shall be rounded off to the nearest rupee, half of a rupee or quarter of a rupee.
The proviso to Sub-section (1) of Section 4 excludes from its operation motor transport undertakings to which the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952) apply. Similarly the proviso to Sub-section (2) excludes motor transport undertakings to which the Payment of Gratuity Act, 1972 (Central Act 39 of 1972) applies. Central Act 19 of 1952, in virtue of its provisions in Sub-section (3) of Section 1, applies only to establishments employing 20 or more persons. As per Section 6 of the said Act as it stood prior to its amendment in 1988, the employer's contribution to the Provident Fund was at 6 ¼ percent of the basic wages, clearness allowance and retaining allowance for the time being payable to each of the employees in the establishment. The employee's contribution is equal to the contribution payable by the employer. As per the amendment effected in 1988, the contribution to the Fund by the employer as well as by the employee is enhanced to 8 l/3 percent of the basic wages, dearness allowance and retaining allowance.
3. The payment of Gratuity Act, 1972, by virtue of its provision contained in Section 1(3), applies to shops and establishments in which 10 or more persons are employed. Under Section 4 of the said Act gratuity is payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years on superannuation, retirement or resignation or on his death or disablement due to accident or disease. The first proviso to Section 4(1), however, excludes the requirement of continuous service of five years with respect to termination of employment on death or disablement. Gratuity is payable by the employer at the rate of 15 days' wages for every completed year of service based on the rate of wages last drawn by the employee subject to a maximum of fifty thousand rupees. Sub-section (6) of Section 4 provides for the forfeiture of gratuity to me extent of damage or loss caused to the employer for any act, wilful omission or negligence on the part of the employee and also in cases where the services of the employee had been terminated for riotous or disorderly conduct or any other act of violence on his part. The employee forfeits gratuity also in cases where his services have been terminated for any act constituting an offence involving moral turpitude committed in the course of his employment.
4. Contributions to the Welfare Fund under Section 4 of the Act are dealt with in paragraphs 27 to 44 of the Scheme. Paragraphs 45 and 46 deal with payment of gratuity to the employee from the gratuity fund. Section 4 read with Section 9 of the Act requires the employer to make contributions to the welfare fund in advance every month. Such monthly contributions take in contributions towards provident fund as well as towards gratuity. As per paragraph 45 of the Scheme gratuity shall be paid from the gratuity fund account to an employee at the rate of 50 percent of the monthly average wages for each completed year of service subject to a maximum of 20 months' wages. As per paragraph 46 of the Scheme gratuity becomes payable to an employee on the termination of his employment after he has rendered a continuous service of not less than one year on his superannuation, retirement, resignation, retrenchment, discharge or dismissal from service. Gratuity is also payable on death or disablement due to accident or disease without insistance on me requirement of a continuous service of a minimum period of one year. Sub-paragraph (2) of paragraph 46 makes provision for adjustment of an amount equal to the damage or loss to the employer caused on account of any act or wilful omission or negligence on the part of the employee. As per the Scheme the employee becomes entitled to gratuity only if he has completed a minimum period of service for one year. The employer, however, is obliged to make contributions towards gratuity under Section 4(2) of the Act every month.
5. Parliamentary legislations relating to provident fund and gratuity referred to above as well as the State Act under challenge fall under entry 24 of List III of Schedule 7 of the Constitution. Adv. Sri. P.C. Chacko appearing for some of the petitioners has raised a contention that the Kerala Act encroaches upon the occupied field of Parliamentary legislation and is therefore invalid under Article 254(1) of the Constitution. For the one thing there is no repuganancy between the State Act and the Central Act. The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 applies only to establishments where 20 or more persons are employed. The Welfare Fund Act passed by the Kerala Legislature applies only to such establishments to which the Central Act does not apply. So also the Payment of Gratuity Act applies to shops and establishments in which 10 or more persons are employed. The State Act with respect to gratuity applies only to such establishments excluded by the Central Act. Both the Central Act as well as the State Act can, therefore, simultaneously apply to their respective areas of operation. There is, therefore, no repugnancy as envisaged by Article 254(1) of the Constitution. That apart, the State Act had received the assent of the President and the same would prevail over the Central Act even if the same is deemed to have occupied the field. The Supreme Court in T. Barai v. Henry Hoe states at p. 186;
Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is "repugnant" to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz, that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject.
A similar contention raised in regard to the validity of the Toddy Workers' Welfare Fund Act, 1969, which had also received the assent of the President, was repelled by a Division Bench of this Court in K.K. Bhaskaran v. State of Kerala 1973-I-LLJ-204. We therefore, overrule the contention that the Welfare Fund Act is void under Article 254(1) of the Constitution for repugnancy with the Central Acts.
6. The main thrust of the argument by counsel for the employers is that the impugned provisions of the Act violate Articles 14 and 19(1)(g) of the Constitution. The learned Advocate General appearing for the State contends that the Act has the protection of Article 31C of the Constitution and it is immune from attack as violative of Articles 14 and 19. The learned Single Judge has held that the impugned Act is for the implementation of the policy of the State towards securing the directive principles in Articles 38 and 43 of the Constitution and is therefore immune from attack as violative of Articles 14 and 19. In arriving at the above conclusion the learned Judge has not considered the decisions of the Supreme Court relating to the validity of the 25th and 42nd Amendments of the Constitution. Article 31C was introduced by the 25th Amendment. Among other things, the validity of Article 31C was in question before the Supreme Court in Kesavananda Bharati v. State of Kerala . Article 31C, as it originally stood gave immunity from attack for violation of Articles 14, 19 and 31 only in cases where the legislation was for giving effect to the policy of the State towards securing the directives in Clause (b) or (c) of Article 39 of the Constitution. The Article contained also a provision that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. In Kesavananda Bharati's case the majority of Judges held that Article 31C is valid except as regards its latter part precluding challenge in cases where law contains a declaration that it is for implementation of the directives in Clause (b) or (c) of Article 39. It is clear from the decision that when the protection of Article 31C is sought to shield a particular enactment, the court would be entitled to examine whether the impugned enactment really seeks to give effect to the policy underlying Clause (b) or (c) of Article 39 regardless of any declaration having been made by the Legislature. If it is found the impugned law is to give effect to the policy under Clause (b) or (c) of Article 39, it will be immune from attack on the ground of contravention of Articles14, 19 and 31. If it does not relate to the aforesaid directives, the enactment is open to challenge under those Articles. The declaratory part of the Article was held to be invalid as it goes counter to the principle of judicial review which is a basic feature of the Constitution.
7. Article 31C of the Constitution was amended by Section 4 of the Constitution (42nd Amendment) Act, 1976 by substituting the words "the principles specified in Clause (b) or Clause (c) of Article 39". The validity of Section 4 of the 42nd Amendment Act was considered by a Constitution Bench of the Supreme Court in Minerva Mills' case 1980(3) SCC 625 where the constitutional validity of the Sick Textiles Undertakings (Nationalisation) Act, 1974 was in question. Chandrachud, C J. for himself and on behalf of Gupta. Untwalia and Kailasam, JJ held that Section 4 of the Amending Act was invalid and void. Bhagwati J. as he then was, wrote a separate judgment in which he upheld the validity of Section 4. The Amendment of Article 31C was accordingly held in Minerva Mills' case as invalid based on the ratio of the majority decision in Kesavananda Bharati's case (supra). An application for review of the judgment in Minerva Mills' case (supra) is stated to be still pending before the Supreme Court. The validity of the unamended Article 31C of the Constitution was again challenged in Waman Rao v. Union of India as violative of the basic structure of the Constitution. The Supreme Court re-affirmed the majority decision in Kesavananda Bharathi's case and upheld the unamended Article 31C. In Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. a Constitution Bench of the Supreme Court expressed doubts about the correctness of the decision in Minerva Mill's case. But the point was not decided since the question did not directly arise for decision in that case. The Supreme Court in Sanjeev Coke Manufacturing Company's case (supra) observed:
14. Thirdly, notwithstanding the strong reliance placed upon Minerva Mills by the learned Counsel for the petitioners, we are not really concerned with the decision in that case since that is not the point at issue before us. What the court held there was that Section 4 of the Constitution (Forty-Second Amendment) Act was invalid. But we are not faced with that question here. We are concerned with the validity of the Constitution (Twenty-fifth Amendment) Act, 1971 and it was conceded before us, as it was conceded before the bench in the Minerva Mills case, that the Constitution (Twenty-fifth Amendment) Act is constitutionally valid.
8. It is clear from these decisions of the Supreme Court that the protection of Article 31C is available only if the legislation in question is for implementation of the directives contained in Clause (b) or (c) of Article 39 of the Constitution. The protection of Article 31C is sought by the State on the ground that the impugned legislation is for implementation of the directives contained in Articles 38 and 43 of the Constitution. Since the protection of Article 31C does not extend to a legislation for implementation of the directives in Articles 38 and 43, we are clearly of the view that the validity of enactment has to be tested with reference to Articles 214 and 19(1)(g) of the Constitution.
9. The employer's share of contribution towards Provident Fund under Section 4(1) of the Act is 8% of the wages for the time being payable to the employee. Section 4(1) of the Act applies to Motor Transport undertakings to which the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 do not apply.' The Act applies only to undertakings which do not employ 20 or more employees. The rate of contribution payable under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 at the time when the State Act came into force was only 6¼% of the basic wages, dearness allowance and retaining allowance payable to the employee. The Central Act was later amended in 1988 enhancing the employer's contribution to 81/3%. The contention is that the small operators had been discriminated against making them liable to pay a higher percentage of contribution than was provided for in the Central Act applicable to larger undertakings. A similar contention is raised in regard to the 5% gratuity payable by the small operators as against the gratuity payable under the Payment of Gratuity Act 1972 which works out only at 4.1%. We see no merit in the contention based on Article 14 of the Constitution. As adverted to by the learned Single Judge, there are valid considerations justifying the differential rates of contribution provided for in the State Act. In the established larger industries covered by the Central enactments relating to Provident Fund and Gratuity, there are other liabilities that the industries may bear by way of benefits to the employees. A larger establishment ordinarily will have higher prosperity and financial flexibility. Such establishments are generally saddled with greater liability to meet the demands of the labour on the basis of the principles of industrial jurisprudence. The employees may claim many other benefits by the process of industrial adjudication. Capacity of the industry would be a prominent factor reckoned by Tribunals in deciding upon the grant of added benefits to the workers. Added benefits may take in fair wages or living wages, holiday wages, house rent allowance, sickness benefits etc. There is nothing discriminatory in grouping together industrial concerns of a less organised nature as distinct from larger concerns. It may not, therefore, be proper to compare establishments with less than 10 or 20 employees with those having more number of employees.
10. That apart Article 14 does not authorise the striking down of the law of the State on comparison with the law made by the Central Parliament. The source of authority for the two statutes being different, there is no question of discrimination or violation of Article 14 of the Constitution. In a case relating to the disparity of Dearness Allowance between the employees of the Central Government and the employees of the State Government of Madhya Pradesh the Supreme Court in State of Madhya Pradesh v. G.C. Mandawar 1954-II-LLJ-673 stated at pages 676-677:
The power of the court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they form one legislation, it might be open to the court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it comtemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The source of authority for the two statutes being different, Article 14 can have no application.
This decision was followed by the Supreme Court in a recent decision on the validity of different State laws relating to Court fees reported in P.M. Ashwathanarayana Setty v. State of Karnataka . Following the Mandawar's case, (supra) it is stated at page 120:
But it is trite that for purposes of testing a law enacted by one State in exercise of its own independent legislative powers for its alleged violation of Article 14 it cannot be contrasted with laws enacted by other States.
We, therefore, overrule the contention that Section 4 of the Act is violative of Article 14 of the Constitution.
11 .We see no merit also in the plea relating to violation of Article 19(1)(g) of the Constitution. In the context of the prevailing circumstances relating to the employees of Motor Transport undertakings in the State, it cannot be said that the provision for contributions towards provident fund and gratuity provided for in the Act is an unreasonable restriction on the employer's right to carry on trade. We have already noticed that the Motor Transport undertakings dealt with under the Act are less organised and cannot be reckoned with on a par with larger industrial establishments. The Act is a beneficial legislation in favour of an unorganised class of labour employed in these undertakings. By the very nature of the undertaking the employees are not secure in service. The operation of motor vehicles is dependant on the contiunance of a permit in relation to the vehicle or the route. The operator will cease to operate the vehicle if the permit is cancelled or has not been renewed. He may be replaced by a more efficient operator at the time of the renewal of the permit. A scheme for nationalisation of the route may oust the operator from the route with respect to which a permit has been issued to him. The employee may have to seek employment elsewhere when he is ousted from service for no fault of his. If he succeeds in getting employment, his service will be under different employers and undertakings. There is no security of service nor is the labour organised in such undertakings. The challenge against the validity of the Act as violative of Article 19(1)(g) of the Constitution has to be judged in the light of all these circumstances. The question whether Section 4 of the Act providing for contributions towards provident fund and gratuity is a reasonable restriction on the right of the employer to carry on trade is also a matter that requires consideration with reference to the peculiar nature of the problems of labour in the motor transport undertakings dealt with under the Act.
12. Nothing has been brought out before us to invalidate the provision for the employer's contribution of 8% of the wages towards provident fund as an unreasonable restriction on his right to carry on trade under Article 19(1)(g) of the Constitution.
13. As per Clause 27 of the scheme every employee is required to be a member of the fund from the beginning of the financial year immediately following the date on which the scheme comes into force, if he has completed three months' continuous service and every employee employed after the commencement of the scheme is required to be a member of the fund on the date on which he completes three months' continuous service. As per Clause 28 the employer as well as the employee are each required to contribute 8% of the wages for the time being payable in respect of every member of the fund. The employer is also required to contribute to the fund an additional 5% of the wages every month towards gratuity. An employee becomes a member of the fund only after he has put in a continuous service of three months. Those who are already in service would have put in much more service before they became members of the fund. As per Clause 45 the maximum amount of gratuity that an employee is entitled to get on termination of his service is equal to 20 months wages earned at the rate of 15 days' wages for every completed year of service. Thus an employee becomes entitled to full gratuity only if he has put in 40 years of service.
14. Gratuity becomes payable to an employee as per Clause 46 on the termination of his employment after he has rendered a continuous service of not less than one year, whether the termination is on superannuation, retirement, resignation, retrenchment, discharge or dismissal from service. In case of termination on account of death or disablement due to accident or disease, gratuity becomes payable whether or not the employee has put in the required minimum period of service. Sub-clause (2) of Clause 46 provides for recovery by way of adjustment of any amount due to the employer from the employee for the reason of any wilful omission or negligence or damage or loss to the property of the employer. Thus a minimum period of continuous service of one year is required for the employee to earn gratuity. Contributions to the fund towards gratuity at the rates specified in the Act are to be made by the employer every month in respect of each employee who has become a member of the fund. There are detailed provisions relating to the administration of the fund and its management by the officers and staff appointed in accordance with Section 7 of the Act. Separate accounts are to be maintained in respect of each member and interests accrued are to be credited to his account. The accounts are to be maintained and audited as provided for in Chapter X of the Scheme.
15. The petitioners contend that an employee gains gratuity only if he has put in un-blemished service for a considerable length of time, the period of one year is too short to gain gratuity and in any case the cumpulsions of the statute requiring the employer to pay gratuity every month in respect of the member of a fund even before he becomes entitled to gratuity under the scheme will show that the gratuity as provided for in the Act and the Scheme is an unreasonable restriction on the employer's right to carry on trade under Article 19(1)(g) of the Constitution. Considerable reliance is placed on the decision of the Supreme Court in Express Newspaper Ltd. v. Union of India 1961-I-LLJ-339. In that case the Supreme Court upheld the validity of Sub-clauses (1) and (2) of Section 5(1)(a) of the Working Journalists and other Newspaper Employees' (Conditions of Service) and Miscellaneous Provisions Act, 1955. These provisions provide for gratuity to the employee on termination of service by the employer otherwise than as a punishment or when he retires from service on superannuation if he has put in not less than three years' service in any newspaper establishment. It was however, held that the provision for gratuity contained in Sub-clause (3) of Section 5(1)(a) to an employee voluntarily resigning after he has put in only three : years' service was an unreasonable restriction on the employer's right to carry on trade. In that case it is held that gratuity is a reward for good, efficient and faithful service rendered for a considerable period and there is no justification for awarding gratuity to an employee voluntarily resigning from service except in exceptional circumstances. A period of 15 years' service was considered to be an exceptional circumstance. A contention based on the Express Newspaper case (supra) that there should be atleast a minimum 15 years' service for a workman to gain gratuity was not accepted by the Supreme Court in Garment Cleaning Work v. Workmen 1961-I-LLJ-513. Referring to the Express Newspaper case (supra) the Supreme Court observed at page 515:
The conclusion of this Court was that the provision for gratuity made by the said clause to an employee who had put in three years' service imposes an unreasonable restriction on the employer's right to carry on business and is therefore liable to be struck down as unconstitutional. Dealing with that provision this Court incidentally observed that where the employee has been in continuous service of the employer for a period of more than fifteen years he would be entitled to gratuity on his resigning his post. Mr. Sen contends that this observation indicates that an employee who resigns his post cannot be entitled to any gratuity unless he has put in fifteen years' service. In our opinion, the observation on which this argument is based was not intended to lay down a rule of universal application in regard to all gratuity schemes, and so it cannot be made the basis of an attack against gratuity scheme where instead of fifteen years' service 10 years' minimum service is prescribed to enable an employee to claim gratuity at the rate determined if he resigns after ten years' service. The Supreme Court further observed at page 516:
Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it should necessarily be denied to him whatever may be the nature of misconduct for his dismissal.
16. A similar provision as in the present case for gratuity under Section 4(2) of Toddy Workers' Welfare Fund Act 1969 was upheld by a Division Bench of this Court in K.K. Bhaskaran and Ors. v. State of Kerala (supra). Clause 45(b) of the Scheme framed under the said Act was, however, declared invalid as it does not prescribe a minimum period of service to earn gratuity and also does not make a provision for adjustment of loss to the employer in case of dismissal for misconduct. The consequential provisions in Sub-clauses (2), (3) and (4) of Clause 60 were also struck down as unreasonable. In the present case, however, a minimum period of service of one year and a provision for adjustment of losses are provided for in the scheme. The statutory prescription of a minimum period of one year in the present case cannot be said to be unreasonable when considered in the light of the uncertainty of employment and the vagaries of service.
17. A Full Bench of this Court considering the validity of the Kerala Industrial Employees' Payment of Gratuity Act, 1970 in V.N. Sunder and Ors. v. State of Kerala and Ors. 1975-II-LLJ-477 held that a qualifying service of five years for earning gratuity is reasonable in the case of industrial employees. Section 4(1)(b) of the said Act was, however, read down as not relating to dismissal for misconduct involving riotous or disorderly behaviour or violence or offence involving moral turpitude or misconduct causing damage or loss to the employer. Gopalan Nambiar, J. as he then was in his concurring judgment stated at page 491:
In the Express Newspaper's case (supra) a scheme making gratuity payable at the end of three years was upheld except in one particular aspect (See Paragraph 202). In Ramachander v. State of Punjab , it was observed that the concept of what is necessary to secure social welfare of labour, or indeed of the elements which determine its contents, are neither of them fixed nor static, but dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time. In similar vein spoke Shah J. in the Delhi Cloth and General Mills Co.'s case (supra) when the learned Judge stated that any attempt to search for a principle from the law based upon precedents would be a futile exercise.
18. In the light of these principles and in the context of the peculiar nature of the employment, we are of the view that a minimum period of one year service to earn gratuity prescribed under the scheme cannot be said to be unreasonable. We are aware that the employer is required to contribute 5% of the wages to the fund towards gratuity every month once an employee has become a member of the fund. The employees' entitlement can be satisfied only if the employer has made the statutory contribution. There is nothing in the Act or the scheme entitling the Board to appropriate the contributions by way of gratuity in cases where gratuity is not payable to the employee for want of requisite minimum service. In such cases it will be open to the employer to apply for and get a refund of the contributions made by him towards gratuity not payable to the employee. We do not see any unreasonable restriction on the employer's right under Article 19(1)(g) of the Constitution to carry on trade or business for the reason that he is required to contribute 5% of the wages due to each employee towards gratuity payable to him on termination of service.
19. For the aforeasaid reasons, we see no merit in these writ appeals and writ petitions, and we dismiss the same, but in the circumstances without any order as to costs.