2019 LLR 296

KERALA HIGH COURT

Hon’ble Mr. Dama Seshadri Naidu, J.

W.P. (C) No. 9642 of 2018, D/–7-11-2018

 

E-Team Informatica India (Pvt.) Ltd.

vs.

Mathew M. George and Others

 

PAYMENT OF GRATUITY ACT, 1972 – Payment of Gratuity (Central) Rules, 1972 – Rule 7(1) read with Rule 10, I-Forms – Terminated employees – Respondents 1 to 5 sought gratuity and has submitted I-Forms on time – And has also filed application under Rule 7(1) read with Rule 10 of Rules – Respondents approach the authorities with considerable delay – Delay rightly condoned by controlling authority – No error found with order – Petition dismissed. Para 6

 

For Petitioner: Mr. E.N. Vishnu Namboodiri, Mr. M.K. Saseendran (MELEL), Mr. P.P. Narayanan, P. Rejinark and Mr. Vinod Rajkumar, Advocate.

 

For Respondents: Mr. S.P. Aravindakshan Pillay, Mr. K.A. Balan, Smt. L. Annapoorna, Smt. N. Santha, Mr. Peter Jose Christo, Mr. S.A. Anand and Mr. V. Varghese, Advocate.

IMPORTANT POINTS

• The delay in moving application under Rule 7(1) read with Rule 10 of the Payment of Gratuity (Central) Rules, 1972 before the Controlling Authority is condonable since the Act is beneficial and a provision like Rule 10 ought to be liberally construed.

 

• The power of judicial review is very limited and the writ Court will not substitute its opinion for the primary authority’s.

 

JUDGMENT

DAMA SESHADRI NAIDU, J.—1. The petitioner, a Company, has a dispute under the Payment of Gratuity Act, 1972. Its terminated-employees respondents 1 to 5—sought gratuity and submitted I-Forms on time. The petitioner-employer not responding, they filed before the controlling authority an application under Rule 7(1) read with Rule 10 of the Payment of Gratuity Rules. The respondents did approach the authorities with considerable delay.

 

2. Then the petitioner filed the Ext.P1 objection against the respondent’s application; it contended that the application was not maintainable. Eventually, the Controlling Authority passed the Ext.P2 interim order, upholding the proceedings as maintainable. Assailing the Ext.P2, the petitioner has filed this writ petition.

 

3. The petitioner’s counsel has strenuously contended that the delay is inordinate, and the authority assigned no reason. On the other hand, the respondent’s counsel has, with equal vehemence, submits that Rule 10 empowers the controlling authority to condone the delay. As it is a beneficial provision, it should be liberally considered. In support, he relies on Neelakandan Namboothiri v. State of Kerala, 2001 (1) KLT 896.

 

4. Indeed, as seen from the Ext.P2 impugned interim order, the controlling authority has considered the petitioner’s objection and passed a speaking order. It contains, I reckon, cogent reasons why the delay must be condoned.
5. In Neelakandan Namboothiri, a learned Single Judge has held:

            “6. R. 7 of the Gratuity Rules of course make reference to application to be filed, and within a prescribed time. But these cannot or course be taken as over reaching the provisions of S. 7(2) of the Act. Perhaps the impact of the Amending Acts (22 of 1987 with effect from 1.10.1987) and (25/1984 with effect from 1.7.1984) has not been taken notice of by the Rule making body. Whether or not an application is filed, now it is unambiguously laid down that an employer has a duty to pay gratuity. If he disputes it he has to advice the employee of his proposal. The delay can start to run from that point of time. In the aforesaid view, I do not think that the claim of the second respondent has to be rejected on the issue of limitation.

7. Being a beneficial piece of legislation, it has to get a liberal interpretation and the intention of the statute becomes highly relevant when an issue for rejection of a claim is pressed. Establishments which employ less than ten persons are normally outside the purview of the Act. The statue requires for calling of nominations from the serving employees, and by implication, maintenance of complete and proper records including wages that are payable from time to time, and also furnishing of yearly returns to the Inspectors appointed. These are indicative of the mandatory requirement to pay the dues admissible to an employee, who at times may not be aware of his rights. The right being statutory, cannot be equated to a debt, and principles of Limitation Act strictly are not applicable. As pointed out earlier, the liability can be seen only as an obligation which the employer has to obligatorily discharge. Therefore, the delay in making an application cannot be permitted to be capitalised. Further in the present case there was no claim that the employee was advised to a rejection of his application, and therefore in fact the question of delay did not arise. For the only reason that the enforcement authorities did not satisfactorily deal with the issue the matter need not be remitted back, since I have on examination found that delay was not permissible to be pleaded because of the default of the employer.

 

6. At any rate, first, the very enactment is beneficial. Notably, a provision like Rule 10 ought to be liberally construed. Besides that, in a judicial review, this Court’s interference is minimal. In the name of judicial review, this Court will not substitute its opinion for the primary authority’s.

I, therefore, dismiss the writ petition.

 

Petition Dismissed.