IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 20455 of 2010(F) --------------------------------------- PETITIONER: ------------------- THE MANAGER, HARRISONS MALAYALAM LIMITED FACTORY DIVISION, ARAPPETTA ESTATE, P.O.MEPPADI, WAYANAD DISTRICT. BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH MENON. RESPONDENTS: ------------------------ 1. BHASKARAN - NO.6100, S/O. VELAYUDHAN, KUNIYIL HOUSE, THINAPURAM, MEPPADI P.O., WAYANAD DISTRICT. 2. THE THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT (DISTRICT LABOUR OFFICER), WAYANAD. 3. APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT (REGIONAL JOINT LABOUR COMMISSIONER),KOZHIKODE. R2 & R3 BY SR. GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K.SURENDRA MOHAN, J. ------------------------------------------------ W.P.(C) No.20455 of 2010 ------------------------------------------------ Dated this the 2nd July, 2010 JUDGMENT This Writ Petition is filed challenging Ext.P4 order of the Appellate Authority under the Payment of Gratuity Act, 1972 confirming the order of the Controlling Authority granting gratuity to the first respondent. The first respondent was an employee of the petitioner in a tea plantation. He claimed that he had service extending from January 1986 to May 2003 continuously and thus he had a total service of 17 years. Therefore, he claimed that he was entitled to be paid gratuity with interest in terms of the Payment of Gratuity Act, 1972 (the 'Act' for short). He contended that he was not given any appointment order, but that he had continued to work as directed by the Management. He also contended that the management was in possession of Muster Roll and other documents that would prove his continuous employment and therefore he demanded of the management to produce the said records. It is seen from the proceedings under challenge that the WPC No.20455/2010 2 workman had insisted on production of documents like the Muster Roll, Acquittance Register etc. that were required to be maintained by the Management by law, but what was produced was only a statement showing the list of bonus beneficiaries. As per the statement, the petitioner is shown to have only less than 240 days of continuous service in an year though he had been continuously working for 16 years. Since the workman had submitted that he was not in possession of any documents to show his service, the Controlling Authority found that it was incumbent on the part of the management to have produced the documents that they were statutorily bound to maintain. Since the said documents were not produced, considering the fact that he had worked for a long period of 16 years, his service was considered to be permanent and payment of gratuity has been ordered on the above basis. As per Ext.P4, the Appellate Authority has considered the contentions of the petitioner and has found that the order of the Controlling Authority is justified. The Appellate Authority has also found that the management was not able to explain the delay in filing the appeal. WPC No.20455/2010 3 2. According to the counsel for the petitioner, the authorities in Exts.P1 and P4 have proceeded on the assumption that the petitioner was a permanent worker though even the first respondent had no such case before the authorities. With reference to Section 2A of the Act, it is pointed out that in order to claim gratuity, a workman had to work continuously for a period of 240 days as stipulated by Sub Section 2 thereof. The workman has not been able to establish the above fact by producing any material or evidence before the authorities. It is therefore, contended that Exts.P1 and P4 have proceeded to direct payment of gratuity to the first respondent solely on the basis of presumptions. 3. I notice from the impugned proceedings that both the authorities have found that the petitioner has not disputed the claim of the workman to have worked for 16 years under the petitioner. The claim of the petitioner is that though the workman had service of more than 16 years, he did not have continuous service of 240 days in any one of the years. According to the workman, he was not given an appointment order. He contended that the WPC No.20455/2010 4 management was in possession of documents to show the nature and length of his service. The management that is statutorily bound to maintain records like Muster Roll, acquittance register etc. certainly is in possession of documents that would prove the nature and duration of the service put in by the first respondent. Instead of producing the records that the management is statutorily bound to maintain, the petitioner has produced only a statement showing the list of bonus beneficiaries marked as Exts.P1 to P15. Having not produced the best evidence that is available with the petitioner, the petitioner cannot be heard to contend that the workman had not produced any evidence to prove that he was a permanent worker or that he had worked for more than 130 days a year. Even if this writ petition is admitted, in the above state of evidence in this case, I do not think that any purpose would be served. Though the counsel for the petitioner sought for remanding the entire matter and the grant of a fresh opportunity to adduce further evidence, I do not think such a course is justified at this length of time, considering the fact that the first respondent is a poor WPC No.20455/2010 5 workman. I am not satisfied that the petitioner has been prosecuting these proceedings with the due diligence and care that is expected of a reasonable person. For the foregoing reasons, this writ petition fails and is accordingly dismissed. No costs. SD/- K.SURENDRA MOHAN, JUDGE css/ TRUE COPY P.A.TO JUDGE