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2022 Supreme(Ker) 422
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MURALI PURUSHOTHAMAN, J.
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY – Petitioner
Versus
DR. P.V. SASIKUMAR – Respondent
W.P. (C) No. 7931 of 2022
Decided On : 04-07-2022
Advocate Appeared:
For the Petitioner: S.P. ARAVINDAKSHAN PILLAY.
For the Respondents: MANU GOVIND, JUSTINE JACOB.
Point of Law: When section 4 is read along with section 7 of Act, it is explicit that, even without an application made by employee, employer is bound to quantify and pay gratuity on termination of his employment.
Headnote:
Payment of Gratuity (Amendment) Act, 2009 - Section 2(e) - Payment of Gratuity Act, 1972 - Section 1(3) (c), 2A, 2(e), 2(f) - Condone delay of 761 days - Respondent was appointed as a Professor on contract basis, an Engineering Institution of University - The contract was executed with university and was renewed from time to time - On cessation of contract appointment, 1st respondent filed a claim petition before controlling authority under Act claiming an amount as gratuity for service rendered in university - When section 4 is read along with section 7 of Act, it is explicit that, even without an application made by employee, employer is bound to quantify and pay gratuity on termination of his employment.
Findings of the Court:
Controlling authority and appellate authority on basis of evidence adduced found that 1st respondent was having continuous service as defined in section 2A read with sub-section (2) (ii) - The authorities under Act have found that, during ten years of service of 1st respondent there was no break and he had attendance of more than 240 days each year - Court do not find any reason to interfere with finding of fact recorded by the authorities under the Act - Controlling authority as well the appellate authority have found that 1st respondent has made out sufficient cause for condoning delay in filing claim petition - It was observed that, under section 7(2) of Act, even if an application is not submitted under section 7(1), employer shall determine the amount of gratuity and give notice to employee and controlling authority.
Result: Writ Petition dismissed.
JUDGMENT :
MURALI PURUSHOTHAMAN, J.
1. 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 1st 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 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 1st 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 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 1st 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 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 tha
