IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 4TH DAY OF JULY 2022 / 13TH ASHADHA, 1944
WP(C) NO. 7931 OF 2022
PETITIONER:
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY - CUSAT
REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY P.O,
KALAMASSERY, ERNAKULAM, KOCHI - 682022.
SHRI.S.P.ARAVINDAKSHAN PILLAY, SC
RESPONDENTS:
1 DR.P.V.SASIKUMAR
'SAPHALYAM', 37/2014 A2, JAWAHAR NAGAR, KADAVANTHRA,
ERNAKULAM, KOCHI - 682020.
2 APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT
AND THE REGIONAL JOINT LABOUR COMMISSIONER, ERNAKU-
LAM, OFFICE OF THE REGIONAL JOINT LABOUR COMMIS-
SIONER,
CIVIL STATION, ERNAKULAM, KOCHI - 682030.
3 CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY
ACT
AND THE DEPUTY LABOUR COMMISSIONER, ERNAKULAM,
OFFICE OF THE DEPUTY LABOUR COMMISSIONER, CIVIL STA-
TION, ERNAKULAM - 682030.
BY ADV MANU GOVIND-R1
SR.G.P-SRI.JUSTINE JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)7931/2022 2
JUDGMENT
Cochin University of Science and Technology (hereinafter referred
to as 'university', for short) has filed this writ petition challenging Ext.P9
order of the controlling authority under the Payment of Gratuity Act, 1972
(for brevity, 'the Act') and Ext.P12 order of the appellate authority under
the Act.
2. The 1st respondent was appointed as a Professor on contract basis
in Kunjali Marakkar School of Marine Engineering, an Engineering
Institution of the University. The contract was executed with the
university on 12.01.2006 and was renewed from time to time till
21.05.2016. On cessation of the contract appointment, the 1 st respondent
filed a claim petition dated 12.11.2018 before the controlling authority
under the Act claiming an amount of Rs.6,05,769/- as gratuity for the
service rendered in the university. The claim petition was filed with an
application to condone the delay of 761 days. The university resisted the
application contending that the 1st respondent has not shown 'sufficient
WP(C)7931/2022 3
cause' for the delay in filing the claim and the provisions of the Act are
not applicable to the university and that the university will not come
within the purview of an ‘establishment’ under section 1(3) (c) or an
'employer' under section 2 (f) and the 1 st respondent will not come within
the definition of an 'employee' under section 2 (e) of the Act. It was also
contended that the first respondent was not having ‘continuous service’ of
240 days in a year as required under section 2A of the Act.
3. The controlling authority, vide Ext.P9, found that the 1st
respondent has shown sufficient cause for the delay in filing the claim and
that the university is an establishment and an employer under the Act and
1st respondent is an employee and he was in continuous service of the
university from 12.01.2006 to 21.05.2016 and he is entitled for gratuity of
Rs.6,05,769/-. The appellate authority, by Ext.P12 order, confirmed
Ext.P9 order of the controlling authority.
4. In the writ petition, it is contended by the petitioner that the
university is not an establishment under section 1(3) (c) or an employer
under section 2 (f) and the 1st respondent is not an employee under section
WP(C)7931/2022 4
2 (e) of the Act. It is also contended that no sufficient cause was shown
by the 1st respondent before the controlling authority to condone the delay
of 761 days in preferring the claim petition. The petitioner also contends
that the 1st respondent was appointed on contract basis which was
extended on execution of fresh contracts and he had not worked for 240
days for any period of one year as contemplated under section 2A of the
Act.
5. Heard Sri.S.P.Aravindakshan Pillay, the learned standing counsel
for the petitioner, Sri.Manu Govind, the learned counsel for the 1 st
respondent and Sri. Justine Jacob, the learned senior Government Pleader
for respondents 2 and 3.
6. Section 1(3) (c) of the Act reads as follows:
“It (the Act) shall apply to - (c) such other establishments or class of
establishments, in which ten or more employees are employed, or were
employed, or, any day of the preceding twelve months, as the Central
Government may, by notification, specify in this behalf.”
The Central Government in exercise of the powers conferred by clause (c)
of sub-section 3 of section 1 of the Act had extended the provisions of the
WP(C)7931/2022 5
Act to educational institutions employing ten or more persons as per
Notification No. S-42013/1/95-SS.II, dated 3rd April, 1997. Since the
provisions of the Act have been made applicable to educational
institutions as per the notification issued by the Central Government in
exercise of the powers conferred under clause (c) of sub-section 3 of
section 1 of the Act, Cochin University of Science and Technology, an
educational institution, is an establishment under section 1(3) (c) of the
Act.
7. Since it is found that the petitioner university is an establishment
under section 1(3) (c) of the Act, the contention of the petitioner that
university is not an 'employer' under the Act cannot be sustained. The
university is an 'employer' in relation to the establishment as
contemplated under section 2 (f) of the Act.
8. The definition of 'employee' under section 2 (e) of the Act, as
amended by Payment of Gratuity (Amendment) Act, 2009 with
retrospective effect from 03.04.1997, reads as under:
“(e) “employee” means any person (other than an apprentice) who is employed
WP(C)7931/2022 6
for wages, whether the terms of such employment are express or implied, in any
kind of work, manual or otherwise, in or in connection with the work of a
factory, mine, oilfield, plantation, port, railway company, shop or other
establishment to which this Act applies, but does not include any such person
who holds a post under the Central Government or a State Government and is
governed by any other Act or by any rules providing for payment of gratuity.”
The Payment of Gratuity (Amendment) Act, 2009, widened the definition
of 'employee' under the Act in order to extend the benefit to the teachers
with effect from the date on which the provisions of the Act were made
applicable to educational institutions vide notification referred to supra.
The definition of employee under section 2 (e) takes in teachers.
Interpreting section 2 (e) of the Act, as amended by the Payment of
Gratuity (Amendment) Act, 2009, the Apex Court in Birla Institute of
Technology v State of Jharkhand & others [2019(4)SCC 513: AIR
2019 SC 1309: 2019 KHC 6290], has held that teachers will come within
the purview of 'employee' as defined in the Act.
9.The 1st respondent was appointed as a Professor on contract basis
by the university for a period of 10 years from 12.01.2006 to 21.05.2016.
The 1st respondent comes within the definition of 'employee' under section
WP(C)7931/2022 7
2 (e) of the Act and was employed for 'wages' as defined under section 2
(s) and was not an apprentice. Going by section 2(e) of the Act, all
employees are entitled to the payment of gratuity except an apprentice.
The Act intends to exclude the applicability of the provisions of the Act
only in case of apprentice. The 1 st respondent who was appointed on
contract basis in the establishment by the employer on wages comes
within the purview of the definition of 'employee', under the Act.
10. The controlling authority and the appellate authority on the
basis of the evidence adduced found that the 1st respondent was having
continuous service as defined in section 2A read with sub section (2) (ii).
The authorities under the Act have found that, during the ten years of
service of the 1st respondent there was no break and he had attendance of
more than 240 days each year. I do not find any reason to interfere with
the finding of fact recorded by the authorities under the Act.
11. The controlling authority as well the appellate authority have
found that the 1st respondent has made out sufficient cause for condoning
the delay in filing the claim petition. It was observed that, under section
WP(C)7931/2022 8
7(2) of the Act, even if an application is not submitted under section 7(1),
the employer shall determine the amount of gratuity and give notice to the
employee and the controlling authority. This Court, in Kerala State Co-
operative Bank Ltd; Tvm v. Court of Deputy Labour Commissioner,
Kozhikode and another [2021 (1) KHC 239: 2021 (1) KLT 466: ILR
2021 (1) Ker.1028], has held that, when section 4 is read along with sec-
tion 7 of the Act, it is explicit that, even without an application made by
the employee, the employer is bound to quantify and pay the gratuity on
termination of his employment. Therefore, the 1st respondent cannot be
faulted for the delay in filing the claim petition.
There is no error of law or error of fact to interfere with the orders
impugned. The writ petition is dismissed. No order as to costs.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
WP(C)7931/2022 9
APPENDIX OF WP(C) 7931/2022
PETITIONER’S EXHIBITS:
Exhibit P1 TRUE COPY OF THE UNIVERSITY ORDER NO.
AD.F1/5677/2005/RECT(1) DATED 15.02.2006.
Exhibit P2 TRUE COPY OF THE CONTRACT APPOINTMENT TO THE
POST OF PROFESSOR IN K.M.SCHOOL OF MARINE
ENGINEERING EXECUTED BY THE 1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE CLAIM PETITION DATED
12.11.2018 IN FORM-N OF THE PAYMENT OF GRA-
TUITY ACT, 1972, WITH A DELAY PETITION BE-
FORE THE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE STATEMENT FILED IN GC
344/2018 ON BEHALF OF THE PETITIONER HEREIN
WITHOUT ITS ENCLOSURES.
Exhibit P5 TRUE COPY OF THE REPLICATION NOTE DATED
01.02.2019 FILED BY THE 1ST RESPONDENT ALONG
WITH ITS ANNEXURE.
Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
07.03.2019 FILED ON BEHALF OF THE PETITIONER
HEREIN IN G.C. 344/2018.
Exhibit P7 TRUE COPY OF ADDITIONAL COUNTER AFFIDAVIT
DATED 07.03.2019 FILED ON BEHALF OF THE PE-
TITIONER HEREIN G.C. NO.344/2018.
Exhibit P8 TRUE COPY OF THE SUPPLEMENTARY AFFIDAVIT
DATED 12.04.2019 FILED BY THE 1ST RESPONDENT
HEREIN IN G.C. NO.344.
Exhibit P9 TRUE COPY OF THE ORDER DATED 01.12.2020 IN
G.C. 344/2018 OF THE 3RD RESPONDENT.
Exhibit P10 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED
U/S. 7(7) OF THE PAYMENT OF GRATUITY ACT BE-
FORE THE 2ND RESPONDENT ALONG WITH STAY PE-
TITION.
Exhibit P11 TRUE COPY OF THE OBJECTION FILED BY THE 1ST
RESPONDENT HEREIN TO EXT.P10 APPEAL.
Exhibit P12 TRUE COPY OF ORDER NO.GA23/2021 DATED
31.01.2022.
spc/
