2024/KER/42406 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10^TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 WP(C) NO. 38117 OF 2023 PETITIONER:

ABDUL GAFOOR.V.P., AGED 45 YEARS S/O.MUSTHAFA,V.P.HOUSE, PADANOTE, MUNDERI (PO),KANNUR DISTRICT, PIN - 670591 BY ADV CIBI THOMAS RESPONDENTS:

1 THE CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 (DEPUTY LABOUR COMMISSIONER), KANNUR, KANNUR, PIN - 670001

2 THE DEPUTY TAHASILDAR(RR), KANNUR TALUK, KANNUR(DT), PIN - 670002

3 SUBAIR.A.C, BAITHOOL NOOR, NEAR RATION SHOP KUNNUMKAI, CHIRAKKAL.P.O, KANNUR, KERALA, PIN - 670011 BY ADVS.

NEERAJ NARAYAN R.HARIKRISHNAN (KAMBISSERIL)

SMT MABLE CKURIEN SR GP; SRI NEERAJ NARAYANAN-R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT The petitioner says that he has suffered Ext.P2 award under the provisions of the Payment of Gratuity Act, but that it was issued ex-parte, without any information to him. He says that he came to be aware of the Award only when he received Exts.P4 & P5; and that consequently, he moved an application to have the same set aside, but which has now been rejected through Ext.P6, saying that it has been filed beyond time.

2. Sri.Cibi Thomas, learned counsel for the petitioner, vehemently argued that the reason stated in Ext.P6, namely that the application is time barred, is wholly untenable because, the rigor of limitation ought to have been construed from the date on which his client came to be aware of the Award and not from its date. He pointed out that, even going by Ext.P6, the Controlling Authority has found that Ext.P2 Award was sent to the petitioner earlier, but which had been returned with the endorsement ‘unclaimed’; and obviously that he had no information of it until he received Exts.P4 & P5. He thus prayed that Ext.P6 be set aside and the Controlling Authority be directed to consider his client’s application to have Ext.P2 set aside, within a time frame to be fixed by this Court. He concluded explaining that he is making the afore submission because, his client’s specific case is that the 3^rd respondent has never worked with him even for one week.

3. In response, however, the learned counsel for respondent No.3 - Sri.Neeraj Narayanan, submitted that the afore assertions are wrong and that, when the petitioner refused to accept the Award, it can only be construed that he was aware of it; and further that his subsequent conduct would establish that he was only trying to protract the proceedings. He thus prayed that this Writ Petition be dismissed.

4. Smt.Mable C.Kurien - learned Senior Government Pleader, submitted that a counter affidavit has been filed on record, wherein, it has been averred that, even at the time when GC No.9/2023 was registered, notice was issued to the petitioner, as evident from Ext.R1(b), but which was refused to be accepted him. She submitted that it was thus that he was declared ex-parte on 15.03.2023; and that Ext.P2 was, thereupon, sent to him through Ext.R1(c), which also he did not receive and which was subsequently returned with the endorsement ‘unclaimed’. She contented that, therefore, the petitioner cannot seek any further relief in this writ petition.

5. I have considered and evaluated the afore rival submissions, adverting specifically to Ext.P6, which is impugned.

6. As I have already said above, the petitioner admittedly suffered Ext.P2 Award, which is an ex-parte one and he says that he was not aware of it until he received Exts.P4 & P5. However, the materials on record, prima facie, established that he was sent a copy of the Award from the office of the Controlling Authority, but that it was returned on 06.07.2023, with the endorsement ‘unclaimed’.

7. The germane question is whether this can be construed to be proper notice and whether this would deny the petitioner the benefit of seeking that Ext.P2 be set aside, solely on account of the ri