IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 27134 of 2003(E) -------------------------- PETITIONER: ------------ MANGALAM PUBLICATIONS (INDIA) PVT.LTD., S.H.MOUNT P.O., KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON SRI.DEVIDAS.U.K SMT.UMA GOPINATH SRI.SANDEEP.E. RESPONDENTS: ------------- 1. V.THAMPI EIPE, MALLYEKKAL HOUSE, KOTHALA P.O., PAMPADY, KOTTAYAM. 2. THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 (DISTRICT LABOUR OFFICER), KOTTAYAM. 3. THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 (THE REGIONAL JOINT LABOUR COMMISSIONER), ERNAKULAM. BY ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 27134/2003. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE LETTER DTD.16.1.199 TO R1. P2. COPY OF THE LETTER DTD.24.11.99 TO R1. P3. COPY OF THE DETAILS OF FINAL SETTLEMENT OF R1. P4. COPY OF THE CONDONATION PETITION BEFORE R2. P5. COPY OF THE PETITION FOR GRATUITY DTD.7.12.99 BEFORE R2. P6. COPY OF THE WRITTEN OBJECTION DTD.8.2.00 BEFORE R2. P7. COPY OF THE ORDER DTD.21.11.2001 OF R2 IN GC NO.22/99. P8. COPY OF THE ORDER DTD.27.5.03 OF R3 IN GA NO.1/2002. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.27134 of 2003 ================== Dated this the 12th day of June, 2008 J U D G M E N T The petitioner is the employer in a Gratuity Case before the Controlling Authority and the Appellate Authority under the Payment of Gratuity Act, who have passed Exts.P7 and P8 orders respectively in that Gratuity Case directing the petitioner to pay an amount of Rs.6110.90 as balance gratuity due to the 1st respondent. The only contention raised before me is that at the time of superannuation of the workman, he was paid an amount of Rs.24,466/- which is the actual gratuity due to the workman, assuming all his contentions are correct. But the problem arose when out of Rs.24,466/- paid to the petitioner, as per Ext.P3, gratuity was shown as Rs.15,466/- and the balance amount was shown as gratuitous payment. The Controlling Authority and the Appellate Authority came to the conclusion that the workman was entitled to a balance amount of Rs.6,110.90 also as gratuity. This is based on Ext.P3 issued by the petitioner itself, wherein out of Rs.24,466/- paid as per Ext.P3, only Rs.15,466/- was shown as gratuity and the balance was shown as other dues, Rs.5,000/- being gratuitous payment. The contention of the petitioner is that the amount of Rs.5000/- paid as gratuitous payment should be w.p.c.27134/03 2 taken as gratuity and only the balance is liable to be paid by the petitioner. 2. On the other hand, the counsel for the 1st respondent would submit that that amount was paid as a gratuitous payment separately as given to other retired employees also and that cannot be included as part of the gratuity. She points out that in Ext.P3 itself gratuity has been separately calculated and paid, and that amount is admittedly less than the actual amount due to the 1st respondent. The counsel for the 1st respondent, therefore, argues for dismissing the writ petition. 3. I have considered the rival contentions in detail. 4. Ext.P3 is not disputed either by the petitioner or the workman. Ext.P3 is the calculation statement given by the petitioner to the workman. In the same, gratuity is separately calculated. It is not disputed that that amount is less than what was due to the 1st respondent. The only contention raised is that in Ext.P3 itself it is specifically stated that a gratuitous amount of Rs.5,000/- has been paid to the 1st respondent, which, according to the petitioner, should be added as gratuity due. I am not inclined to accept that contention when the petitioner himself has separately calculated gratuity in Ext.P3 and included Rs.5000/- as w.p.c.27134/03 3 a gratuitous amount. Clearly that amount of Rs.5,000/- was paid not as a part of gratuity, but as a gratuitous payment, in addition to the gratuity. It is also not disputed before me that going by the calculation in Ext.P3, the gratuity amount paid was less than what was actually due to the workman as per the Payment of Gratuity Act. That being so,. I am not satisfied that Rs.5,000/- paid as gratuitous amount to the 1st respondent can be directed to be computed as gratuity actually paid to the 1st respondent. Therefore, I do not find any merit in the writ petition and accordingly the same is dismissed. Considering the fact that the workman approached the Controlling Authority more than 3 years after payment by Ext.P3, I am inclined to direct that only half of the interest need be paid to the workman. The Controlling Authority shall disburse the amount due to the 1st respondent as per the above directions immediately on production of a certified copy of this judgment and refund the excess amount in deposit calculated as above to the petitioner. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.27134/03 4