IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20459 of 2010(F)
1. THE MANAGER, HARRISONS MALAYALAM LTD.,
... Petitioner
Vs
1. VARGHESE, NO.6074, S/O.ANTONY,
... Respondent
2. THE CONTROLLING AUTHORITY UNDER THE
3. APPELLATE AUTHORITY UNDER THE PAYMENT
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :02/07/2010
O R D E R
K.SURENDRA MOHAN, J.
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W.P.(C) No.20459 of 2010
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Dated this the 2nd July, 2010
JUDGMENT
This Writ Petition is filed challenging Ext.P4 order of the
Appellate Authority under the Payment of Gratuity Act,
1972 confirming the order of the Controlling Authority
granting gratuity to the first respondent. The first
respondent was an employee of the petitioner in a tea
plantation. He claimed that he had service extending from
January 1986 to April 2003 continuously and thus he had a
total service of 17 years. Therefore, he claimed that he
was entitled to be paid gratuity with interest in terms of
the Payment of Gratuity Act, 1972 (the ‘Act’ for short). He
contended that he was not given any appointment order,
but that he had continued to work as directed by the
Management. He also contended that the management
was in possession of Muster Roll and other documents that
would prove his continuous employment and therefore he
demanded of the management to produce the said records.
wpc No.20459/2010 2
It is seen from the proceedings under challenge that the
workman had insisted on production of documents like the
Muster Roll, Acquittance Register etc. that were required
to be maintained by the Management by law, but what was
produced was only a statement showing the list of bonus
beneficiaries. As per the statement, the petitioner is
shown to have only less than 240 days of continuous
service in an year though he had been continuously
working for 16 years. Since the workman had submitted
that he was not in possession of any documents to show
his service, the Controlling Authority found that it was
incumbent on the part of the management to have
produced the documents that they were statutorily bound
to maintain. Since the said documents were not produced,
considering the fact that he had worked for a long period
of 16 years, his service was considered to be permanent
and payment of gratuity has been ordered on the above
basis. As per Ext.P4, the Appellate Authority has
considered the contentions of the petitioner and has found
that the order of the Controlling Authority is justified. The
Appellate Authority has also found that the management
wpc No.20459/2010 3
was not able to explain the delay in filing the appeal.
2. According to the counsel for the petitioner, the
authorities in Exts.P1 and P4 have proceeded on the
assumption that the petitioner was a permanent worker
though even the first respondent had no such case before
the authorities. With reference to Section 2A of the Act, it
is pointed out that in order to claim gratuity, a workman
had to work continuously for a period of 240 days as
stipulated by Sub Section 2 thereof. The workman has not
been able to establish the above fact by producing any
material or evidence before the authorities. It is therefore,
contended that Exts.P1 and P4 have proceeded to direct
payment of gratuity to the first respondent solely on the
basis of presumptions.
3. I notice from the impugned proceedings that both
the authorities have found that the petitioner has not
disputed the claim of the workman to have worked for 16
years under the petitioner. The claim of the petitioner is
that though the workman had service of more than 16
years, he did not have continuous service of 240 days in
any one of the years. According to the workman, he was
wpc No.20459/2010 4
not given an appointment order. He contended that the
management was in possession of documents to show the
nature and length of his service. The management that is
statutorily bound to maintain records like Muster Roll,
acquittance register etc. certainly is in possession of
documents that would prove the nature and duration of
the service put in by the first respondent. Instead of
producing the records that the management is statutorily
bound to maintain, the petitioner has produced only a
statement showing the list of bonus beneficiaries marked
as Exts.P1 to P15. Having not produced the best evidence
that is available with the petitioner, the petitioner cannot
be heard to contend that the workman had not produced
any evidence to prove that he was a permanent worker or
that he had worked for more than 130 days a year. Even if
this writ petition is admitted, in the above state of
evidence in this case, I do not think that any purpose
would be served. Though the counsel for the petitioner
sought for remanding the entire matter and the grant of a
fresh opportunity to adduce further evidence, I do not
think such a course is justified at this length of time,
wpc No.20459/2010 5
considering the fact that the first respondent is a poor
workman. I am not satisfied that the petitioner has been
prosecuting these proceedings with the due diligence and
care that is expected of a reasonable person. For the
foregoing reasons, this writ petition fails and is
accordingly dismissed. No costs.
sd/-
K.SURENDRA MOHAN,
JUDGE
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