IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 OP.No. 18285 of 2001(B) ----------------------- PETITIONER(S): --------------- STAR ENTERPRISES ALIAS UNWEND MEDICALS PVT. LTD., KADAPPAKADA, KOLLAM REP. BY ITS MANAGER. BY ADV. SRI.P.B.SURESH KUMAR(QUILON) RESPONDENT(S): --------------- 1. THE REGIONAL JOINT LABOUR COMMISSIONER, KOLLAM, (APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT) 2. THE DIST. LABOUR OFFICER, KOLLAM, (CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT) 3. G.JOHN, KATTUVILA VEEDU, MARTHANDAPURAM, MULAVANA, KOLLAM. 4. USHA JOHN, KATTUVILA VEEDU, MARTHANDAPURAM, MULAVANA, KOLLAM. ADV. SRI.SHABU SREEDHARAN FOR R4 SRI.P.A.NOOR MUHAMMED FOR R4 GOVERNMENT PLEADER SMT.K.R.DEEPA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 18285/01. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CERTIFICATE OF INCORPORATION DTD.17.3.88. P2. COPY OF THE LICENCE DTD.28.11.90. P3. COPY OF THE PARTNERSHIP DEED OF STAR ENTERPRISES KUNDARA. P4. COPY OF THE APPLICATION BY R3 TO R2 DTD.19.10.95. P5. COPY OF THE APPLICATION BY R4 TO R2 DTD.19.10.95. P6. COPY OF THE OBJECTION TO Ext.P4 DTD.15.3.96. P7. COPY OF THE OBJECTION TO Ext.P5 DTD.21.11.97. P8. COPY OF THE CERTIFICATE BY R3 TO R2 DTD.12.6.93. P9. COPY OF THE PLAINT IN O.S.NO.316/96. P10. COPY OF THE ORDER IN G.C.NO.58/95 AND G.C.NO.18/96 DTD.15.4.00. P11. COPY OF THE APPEAL AGAINST 58/95. P12. COPY OF THE APPEAL AGAINST G.C.NO.18/96. P13. COPY OF THE ORDER BY R1 IN G.A.NO.19/2000 AND G.A.NO.20/2000 DTD.19.3.01. P14. COPY OF THE INVITATION LETTER DTED.15.12.90 RESPONDENT(S)' EXHIBITS: R4A. COPY OF THE LETTER DTD.18.10.95 BY THE PETITIONER. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 18285 of 2001 ================== Dated this the 20th day of February, 2009 J U D G M E N T This original petition came up in the Defect List since the petitioner could not serve notice on the 3rd respondent. The notice issued to the 3rd respondent has been returned unserved stating that the addressee is out of India. The defect was noted as early as on 24.6.2008. The petitioner has not taken any steps thereafter to get notice served on the 3rd respondent. In above circumstances, I directed the counsel for the petitioner to argue the case on merits to ascertain whether the petitioner has made out a case. Accordingly, the counsel for the petitioner was heard. 2. The petitioner is challenging Exts.P10 and P13 orders of the Controlling Authority and Appellate Authority under the Payment of Gratuity Act, whereby in G..C.Nos.58/95 and 18/1996 the claim of respondents 3 and 4 for gratuity has been upheld which has been computed as Rs.7067/- and Rs.2423/- respectively. The said amount was directed to be paid with ten percent interest. The contention of the petitioner is that respondents 3 and 4 did not have 5 years of continuous service in the petitioner's establishment and therefore, they are not eligible for gratuity. In the original petition the petitioner o.p.18285/01 2 would take a contention that formerly respondents 3 and 4 were employed in M/s.Star Enterprises, Kundara, and in 1991 only they joined the petitioner's establishment, which is Star Enterprises, Kollam, which are two different establishments. The petitioner would contend that the petitioner has specifically raised a contention in the written statement that respondents 3 and 4 did not have 5 years continuous service in the petitioner's establishment and therefore, they are not entitled to gratuity under the Act, which contention has not been properly considered by respondents 1 and 2. Exts.P6 and P7 are the written statements filed by the petitioner before the Controlling Authority. That does not contain any contention that respondents 3 and 4 were originally in Star Enterprises, Kundara, and later on joined the petitioner's establishment and the two establishments are separate entities. In any event, I find that the Controlling Authority and the Appellate Authority had examined the evidence adduced by both sides before it and had come to the conclusion that respondents 3 and 4 had more than five years' continuous service in the petitioner's establishment. Those are questions of fact which two authorities have concurrently found against the petitioner. I do not find anything perverse in those findings. That being so, there is no reason to exercise my discretionary jurisdiction in favour of the petitioner, that too, in a gratuity case under the Payment of Gratuity Act, which is a o.p.18285/01 3 beneficial legislation. In this case I also note that the petitioner had himself admits that respondents 3 and 4 had four-and-a-half years' and 4 years and 3 months services. Taking into account all these circumstances, I dismiss the original petition. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 18285 of 2001-B ================== J U D G M E N T 20th February, 2009