IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 9005 of 2009(U) ------------------------- PETITIONER(S): --------------- JOSE KURIAKOSE,KODIMATTATHIL HOUSE EDAKKATTUVAYAL PO, ARAKKUNNAM VIA ERNAKULAM DISTRICT. BY ADV. SRI.T.A.SHAJI SMT.S.SHEEJA KUMARY(AYOOR) RESPONDENT(S): --------------- 1. THE KERALA STATE CO-OP.RUBBER MARKETING FEDERATIION LTD, KADAVANTHRA, KOCHI-20 REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SRI.T.RAMPRASAD UNNI FOR R1 MR.K.C.SANTHOSHKUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No. 9005 of 2009 --------------------------------- Dated, this the 2nd day of July, 2009 J U D G M E N T The petitioner was a heavy goods driver working under the 1st respondent. He retired from the services on 31/08/2008 after rendering 34 years of services. According to the petitioner, he is entitled to an amount of Rs.2,77,026/- towards gratuity, which has not been paid so far. He made representations to the 2nd respondent and Ext.P4 is one of the representations. Payment was not made, and therefore, the writ petition is filed. 2. In the counter affidavit filed, it is stated that during the period when the petitioner was in service, due to sickness he wanted an office posting. It is stated that accordingly he was posted as Branch Manager, and in that capacity he was purchasing, storing and selling materials. Therefore, an audit has to be completed by the Co-operative Department. It is stated that the audit has not been completed, and therefore, the respondents are not in a position to settle the liability of the petitioner. WP(C) No.9005/2009 -2- 3. The claim made by the petitioner is for gratuity, and the justification offered by the respondents is the delay in completing the audit. Forfeiture of gratuity is possible only under Section 4(6) of the Payment of Gratuity Act, which reads as under:- “Section 4(6) Notwithstanding anything contained in sub-section (1); (a) the gratuity of an employee, whose services have been terminated for any act, wilfull omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer' shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee (may be wholly or partially forfeited) (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.” 4. In this case, the respondents have no claim that the case of the petitioner will come within the purview of Section 4(6) of the Act. Therefore, the delay in completing the audit cannot be a reason for delaying payment of gratuity. WP(C) No.9005/2009 -3- 5. The petitioner claims that leave surrender benefits are not released. This of course stands on different footing and has to await competition of audit. 6. Therefore, the writ petition will stand disposed of directing the respondents to release the gratuity amount that is due to the petitioner. 7. The petitioner shall produce a copy of this judgment before the 1st respondent, and the 1st respondent shall ensure that the payment is made to the petitioner within four weeks thereafter. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg