COURT OF KERALA v. R.K.SATHIABALAN

SRI S MANU, DSGI THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON

15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Writ Appeal No.1750 of 2020 2 AMIT RAWAL & C.S.SUDHA, JJ. ----------------------------------------------------- Writ Appeal No.1750 of 2020 ----------------------------------------------------- Dated this the 15th day of February, 2024 J U D G M E N T C.S.Sudha, J. This intra court appeal has been filed by the petitioner against the judgment dated 04/08/2020 in W.P.(C)No.27818/2011. The respondents herein are the respondents in the writ petition. The parties and the documents will be referred to as described in the writ petition.

The first respondent, a former employee of the petitioner Bank, moved the Controlling Authority-Assistant Labour Commissioner, Ernakulam alleging non payment of an amount of ₹80,000/- towards gratuity. According to the first respondent, he had joined the services of the Bank on 11/06/1958 and superannuated from service on 31/07/1994. He was drawing an emolument of ₹10,200/- (revised) at the time of his superannuation. He was paid ₹1 lakh towards gratuity. An amount of ₹80,000/- remains to be paid to him.

The petitioner Bank filed counter contending that the gratuity due to the first respondent had already been paid and no further amount is Writ Appeal No.1750 of 2020 3 due from the Bank. Wage revision for workmen employees as per Sixth Bipartite settlement was implemented vide circular no.94/1995/BC. As per the bipartite settlement mutually agreed upon between the negotiating parties, the effective date for revised basic pay and dearness allowance was 01/07/1993 and for payment of gratuity, 01/11/1994. The first respondent superannuated on 31/07/1994 and hence he is not entitled for refixation of gratuity based on settlement. It was also contended that as per the Payment of Gratuity Act, 1992 (the Act) the maximum gratuity amount payable was ₹1 lakh at the time of retirement of the respondent and hence the revised pay for calculation of gratuity is not admissible in his case. The Controlling Authority as per Ext.P3 dated 28/11/2010 has gone wrong in directing the petitioner Bank to pay an amount of ₹1,82,283/- with interest at the rate of 10% from 01/10/2010 till date of payment of the amount. Against Ext.P3, the petitioner Bank filed Ext.P4 appeal before the second respondent. However, the second respondent also grossly erred in dismissing the appeal vide Ext.P7 order dated 30/05/2011. Aggrieved by Ext.P7 order, the second respondent appellate authority filed the writ petition.

The learned Single Judge relying on Sections 4(3) and 4(5) of the Act held that the claim of the first respondent employee has to succeed and therefore dismissed the writ petition confirming Exts.P3 and P7 orders. Writ Appeal No.1750 of 2020 4 Aggrieved, the petitioner Bank has come up in appeal.

Heard both sides. Paragraph 10 of the impugned judgment reads -

10. There is no dispute to the fact that the gratuity scheme of the bank provided for payment of gratuity to each employee at the rate of one month's pay for every completed year of service subject to a maximum 15 months pay. As per Section 4(5) of the Act, nothing in Section 4 shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. Therefore, the limit prescribed under Section 4(3) of the Act will not apply in the case of the petitioner. As per Section 14, the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument or contract having effect by virtue of any enactment other than the Act. Section 4(2) of the Act mandates that the gratuity shall be fixed based on the rate of wages last drawn. The wages of the 1st respondent having been revised on the basis of the bipartite settlement and the resultant circular, his gratuity is liable to be computed on the basis of the revised wages. The benefit of such revision cannot be denied on the basis of a cut off date prescribed in the bipartite settlement. Such prescription will not stand in view of the stipulation in Section 14. In such circumstances, even if the contention that the petitioner is not entitled for the benefit of the earlier judgments, in view of the observation of the Honourable Supreme Court in the SLP, is accepted, the legal position is in the 1st respondent's favour.

Writ Appeal No.1750 of 2020 5

In the light of sub-sections (2), (3) and (5) to Section 4 of the Act, the contentions of the petitioner Bank will have to fail. Hence the learned Single Judge was justified in dismissing the writ petition. We do not find any ground for interference. In the result, the appeal sans merit is dismissed. Interlocutory applications, if any pending, shall stand closed. AMIT RAWAL JUDGE Sd/- Sd/- C.S.SUDHA JUDGE ami/