Point of Law: Section 4(5) of the Payment of Gratuity Act to get attracted, there must be better terms of gratuity available and extended to an employee 'under any award or agreement or contract with the employer' as against what has been provided for under and in terms of the Act.

JUDGMENT :

Mohammed Nias C.P., J.

The Kerala State Co-operative Bank Ltd., the respondent in the writ petitions is the appellant before us. The respondents - writ petitioners are the retired employees of the appellant Bank having more than 20 years of service. They filed the writ petition contending that they were governed by the Appendix IV Gratuity Rules of the Kerala State Cooperative Bank Staff Regulations (Ext.P1) and the Payment of Gratuity Act, 1972. Rule 5(e) of Ext.P1 stipulates that gratuity payable shall be the amount equal to one month's pay for every year of service, provided that the amount so payable shall not exceed 15 months pay. As per Section 4(3) of the Payment of Gratuity Act, 1972, the maximum amount payable to an employee shall not exceed Rs.10 lakh. However, Section 4(5) of the Payment of Gratuity Act, clearly provides that nothing in that section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

2. The first petitioner had sent a letter dated 12.02.2012 to the appellant demanding the gratuity as provided under Ext.P1 to which Ext.P3 reply was sent by the appellant dated 16.02.2013. The petitioner contends that a Full Bench of this Court in Chandrasekharan Nair G. & others v. Kerala State Co-operative Agricultural and Rural Development Bank Ltd. & others [2017(4) KLT 276] held that Section 4(5) of the Payment of Gratuity Act which enables an employee to opt for better terms of gratuity and the same would prevail over the second proviso to Rule 59 (iii) of the Kerala State Co-operative Societies Act, 1969. Similarly situated employees of the appellant bank, claiming the benefit of the Full Bench decision filed WP(C) No.27507 of 2013 and the same was allowed by this Court by judgment dated 7.12.2017, Ext.P5. Thereafter, the petitioner sent a representation dated 14.12.2017 (Ext.P6) demanding the balance amount of gratuity to which they are entitled in excess of Rs.10 lakh already paid along with interest thereon at the rate of 9% p.a., taking into account the salary revision implemented with effect from 1.4.2012. The petitioner submits that the appellant ignoring the Full Bench decision and Ext.P5 binding judgment, sent a reply on 30.12.2017, (Ext.P7) stating that the Bank was liable to pay the eligible gratuity only as per the limit mentioned in the Central Act of 1972 or the Kerala Co-operative Societies Act, 1969, whichever is applicable. Thus, by Ext.P7 the request of the petitioner was turned down. The petitioners challenged the said decision of the bank and sought for higher gratuity as provided in Rule 5(e) of Ext.P1 Rules over and above the gratuity paid at the time of retirement on the basis of the Full Bench judgment above mentioned as well as Ext.P5 judgment and taking into account the salary revision implemented on 1.4.2017, with interest at the rate of 9% p.a.

3. The appellant had filed a counter affidavit resisting the claim on the basis of their stand taken in Ext.P7 and submitting that Ext.P1 Regulations was prior to the enactment of the Central or the State legislation on Gratuity and after the enactment of specific statute namely the Kerala Co-operative Societies Act, 1969, which consolidated and unified the laws relating to the Co-operative Societies in Kerala, it is the provisions of the said Act that becomes the enabling provisions for the payment of gratuity and this provision would over ride the Regulations, Ext.P1 as well. It is also the further contention of the appellant bank that going by Section 13A of the Kerala Co-operative Societies Act, the bye-laws made by the Co-operative Society shall not be inconsistent or contrary to the provisions of the Kerala Co-operative Societies Act or Rules and thus the Bank was right in computing the amount payable to the petitioner under Section 4(2) of the Payment of Gratuity Act, 1972. The Bank also took up a contention that the Full Bench decision cannot be take