IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 RP.No. 1166 of 2008(E) ---------------------- AGAINST THE JUDGEMENT IN WA.1147/2008 DATED 17.7.2008 .................... REVIEW PETITIONER(S): APPELLANT ------------------------------- MANAGING DIRECTOR, CAPEX, KOLLAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/ PETITIONER & RESPONDENTS 1 TO 3 & 5 -------------------------------------------------- 1. CHINNAMMA, KATTUPARAMBIL VEEDU, PATHIYOOR EAST, KEWERIKAD P.O. PIN - 690 508, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARY, THIRUVANANTHAPURAM. 3. SECRETARY, LABOUR DEPARTMENT, KERALA STATE SECRETARIAT, THIRUVANANTHAPURAM. 4. SECRETARY, INDUSTRIAL DEPARTMENT, KERALA STATE SECRETARIAT, THIRUVANANTHAPURAM. 5. THE DISTRICT LABOUR OFFICER, ALAPPUZHA. GOVERNMENT PLEADER SRI. K.V. MANOJ KUMAR FOR R2 TO 5 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.1166 OF 2008 in W.A.No.1147 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2009 O R D E R Basheer, J: This review petition is at the instance of the appellant in W.A.No.1147/2008. 2. Petitioner who is the present Managing Director of Kerala State Cashew Workers Apex Industrial Co-operative Society (CAPEX for short), Kollam, seeks review of the judgment in the above writ appeal by which the direction issued by the learned Single Judge to pay gratuity to 114 workers of the cashew factory under the CAPEX at Pathiyoor and Eruva was confirmed. 3. It is primarily contended by the petitioner that the judgment rendered by the Division Bench is liable to be reviewed in as much as several material documents and relevant facts having a significant bearing on the issue involved in the case, were omitted to be brought to the notice of this Court due to reasons beyond the control of the petitioner. 4. In order to consider the tenability of the above 2 R.P.No.1166/2008 contention, it is necessary to refer to a few relevant facts leading to this review petition. 5. It is not in dispute that 114 employees who claimed to have worked in the two units of the CAPEX at Pathiyoor and Eruva, had approached the Controlling Authority (District Labour Officer, Alappuzha) under the payment of Gratuity Act, 1972 for a direction to the employer (M/s. CAPEX) to pay them gratuity as provided under the Act. The Controlling Authority by its order dated October 27, 2004 issued a direction to the CAPEX to pay gratuity to these 114 employees “as claimed by them in their applications”. The Controlling Authority further indicated in the order that gratuity payable to each applicant (employee) had been determined as shown in Annexure-I, attached to the said order. The total sum payable as gratuity was quantified at Rs.35,47,212/=(Rupees thirty five lakhs forty seven thousand two hundred and twelve). It was further directed that the employees would be entitled to get simple interest on the amount at the rate of 10% from the date on which it fell due. 6. It appears that the above order was challenged by the management before the appellate authority (Regional Joint Labour Commissioner, Kollam). The appellate authority disposed of the appeals by its common order dated October 28, 2005 holding that the appeals were not maintainable since the appellant had failed to deposit the award amount as contemplated under the Act. 7. It is not in dispute that the management did not 3 R.P.No.1166/2008 comply with the order passed by the Controlling Authority . Therefore respondent No.1 herein, Smt. Chinnamma, filed W.P(C)No.35367/2007 before this Court praying for issue of a writ of mandamus directing the State of Kerala and others including CAPEX to release the amounts to the employees as quantified by the controlling authority along with interest thereon, from their respective date of retirement. Smt. Chinnamma claimed that she had been authorised by the other 113 employees to institute the writ petition. The writ petition was disposed of by a learned Single Judge of this Court on January 21, 2008 directing the management to pay the gratuity amount within two months from the date of receipt of a copy of that judgment. It was noticed by the learned judge that the only contention raised by the management in the writ petition was that the company did not have sufficient funds to pay the amount awarded by the controlling authority. 8. The above judgment passed by the learned Single Judge was confirmed by the Division Bench in W.A.No.1147/2008 as indicated earlier. It is the said judgment which is sought to be reviewed by the present Managing Director in this review petition. 9. It is the case of the petitioner that the erstwhile officers of the company who had received notice from the controlling authority, had failed to produce the relevant records before the said authority, apparently for the reason that they could not be traced out at that point of time. It is contended by the petitioner, who is the present Managing 4 R.P.No.1166/2008 Director, that the original records have been traced out only now. He assumed charge on January 04, 2008. Most of the 114 employees had not worked in any of the units of the company. 10. It is further contended that only 15 out of the 114 employees are in fact found to be eligible on a perusal of the records. It is also pointed out that about 48 employees had in fact received gratuity amount earlier. They had also filed applications before the controlling authority as if they had not received the gratuity at all. 11. Sri. Sudheer, learned counsel for the petitioner has made available the relevant documents for our perusal, photocopy of which is produced along with the review petition. We refrain from scrutinising those documents at this stage for the reasons to be stated by us later in this order. 12. It is not in dispute that the erstwhile Rajmohan Cashew Limited, Eruva, Kayamkulam and M/s.Standard Cashew Industries, Pathiyoor were taken over by the Government of Kerala in 1986 and 1985 respectively under the provisions of the Kerala Factories (Acquisition) Act, 1974 for conducting processing work. At the time of take over, the two factories were closed down. CAPEX, which is directly under the control of the Government of Kerala, took over the factory at Eruva and started its operation in October 1999. The unit at Pathiyoor commenced its operations from February 1987. The services of the employees in the erstwhile two factories stood terminated on the date notified by the Government prior to the take over. The specific case of the petitioner is that the 5 R.P.No.1166/2008 erstwhile employees had entered service of the two units as new entrants after accepting the conditions stipulated by the CAPEX. We do not propose to deal with that aspect of the matter any further. 13. However it may be noticed that the petitioner has raised a specific contention that fraud was played on the CAPEX at various levels and the bogus claims made by the so called employees happened to be allowed because some of the Officers were alledgedly hand in glove with them. According to the petitioner, the original receipts signed by the former employees will show that 48 employees had received gratuity. 14. It is also contended by the petitioner that the writ petitioner viz., Chinnamma had no authority to represent the other employees. Many of the employees had passed away some time back. But even now claims in respect of those persons are sought to be sustained as though they are alive. It is also pointed out that the writ petitioner had not produced any document to show that she had been authorised to represent the other employees. The writ petitioner had also suppressed the fact in the writ petition that she had filed Annexure 3 complaint before the Lok Ayukta for the same relief. The said complaint is even now pending before the Lok Ayukta. 15. It is true that the writ petitioner has now produced before us Annexure B5 “resolution” which is stated to have been passed by 113 employees. In the said resolution it is seen stated that the employees had elected the writ petitioner as their Convenor to represent before any Court of authority. Admittedly 6 R.P.No.1166/2008 some of those signatories have died. It is not discernible from Annexure B5 as to when this so called resolution was passed and by whom. It is also not seen whether these signatories had put their signature before any competent authority or authorised officer who could authenticate the same. We refrain from making any further comment on the right, authority or competence of the writ petitioner to represent the other 113 employees some of whom are admittedly no more. 16. In short, it is contended by the petitioner that the present Managing Director had taken pains to trace out the original records after it could be gathered that fraud has been played on this Govt. controlled institution. Learned counsel submitted before us that this conscientious officer wants to ensure that public funds (Rupess One Crore) now made available by the Governments is paid only to eligible people. The tax payers' money should not be allowed to go waste, it is contended by the learned counsel. 17. It is contended by Sri. Madhu, learned counsel for respondent No.1 that it is too late in the day for the petitioner to urge before this court that the laches on the part of the management has to be condoned and a lenient view has to be taken to deprive the poor employees the statutory benefits. Learned counsel points out that petitioner does not have a case that sufficient opportunity was not afforded to the management by the controlling authority or the appellate authority to produce the relevant records before them. The consistent stand taken by the management before the learned 7 R.P.No.1166/2008 Single Judge and the Division Bench was only that the management did not have sufficient funds to make the payment. There was no case for the petitioner that the claim made by the 114 employees was in any way unsustainable or impermissible. It is thus contended by the learned counsel that the attempt of the present Managing Director is only to frustrate the poor employees and deny them the statutory benefits by producing these documents at this belated stage. Learned counsel contends that the present Managing Director is not justified in making this belated attempt to thwart the employees from getting their benefits. 18. It is true that there is some force in the contention raised by respondent No.1 since it is on record that the management had submitted before the learned Single Judge that the award amount would be released to the employees as soon as funds were made available by the Government. 19.But according to the review petitioner for some dubious reasons none of the officers of the company had bothered to trace out the records of the company and produce them before the controlling authority. If only the records were produced before the controlling authority, tenability or validity of the claim of the employees could have been properly ascertained and adjudicated. The learned counsel asserted before us that the petitioner has no objection in making payment to the eligible employees after due verification of the records by the controlling authority. The only concern of the petitioner, learned counsel submits, is that the public 8 R.P.No.1166/2008 money shall not go into the hands of those who do not deserve it. 20. It is brought to our notice that the Government has recently sanctioned Rupees One crore for disbursement. But it is the contention of the petitioner that only those who are entitled should get it. We find considerable force in the contention raised by the learned counsel. 21. It is beyond controversy that the controlling authority did not have the privilege of verifying the records about the tenability of the claim made by the 114 employees. The above aspect is made clear by the controlling authority himself in the order. It is further revealed from the order that the authority had proceeded to pass the order solely on the basis of the claim made by the employees in their respective applications. In other words, the claims made by the employees were accepted by the controlling authority in toto. It is in the above context that we are persuaded to consider the rival contentions raised by the parties in this review petition. 22. The writ appeal was disposed without considering any of the above aspects. Since the original registers, vouchers etc have now been traced out, they have to to be necessarily perused by the controlling officer. In our view, there are errors apparent on the face of the record and therefore the judgment is liable to be reviewed. We are satisfied that the prayer for review is only just and proper and the same is liable to be allowed. We do so. 23. Therefore, the judgment in W.A.No.1147/2008 is 9 R.P.No.1166/2008 reviewed and the writ appeal is allowed. Having regard to the entire facts and circumstances, we are satisfied that the controlling authority, District Labour Officer, Alappuzha, under the Payment of Gratuity Act, 1974, has to be directed to reconsider the claims made by 114 employees of CAPEX in GC.No.19/2000 and connected cases and pass fresh orders after hearing the parties. Ordered accordingly. It shall be ensured by the controlling authority that individual notices are issued to all the 114 employees and each one of them shall be heard. It will be open to the management and the employees concerned to produce all the relevant records before the controlling authority. The records, if any which had been produced by the employees already shall also be perused by the controlling authority and if the employees make a request, they shall be afforded further opportunity to produce additional documents, if any. 24. The controlling authority shall dispose of the claims after hearing the parties as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this order. The management shall deposit a sum of Rs.50 lakhs (Rupees fifty lakhs) before the controlling authority within three months from today. The controlling authority shall ensure that payment of gratuity is effected to the eligible employees, if it is found that they are eligible to get the same on the basis of the records produced by the parties. If the management fails to make the deposit as directed above, the controlling authority need not consider the claims 10 R.P.No.1166/2008 of the employees afresh. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl 11 R.P.No.1166/2008