Safiya Malik

The High Court of Kerala Single Bench of Justice K. Babu dismissed a writ petition challenging an ex parte gratuity award issued by the Controlling Authority under the Payment of Gratuity Act, 1972. The court held that the employer, being represented through the factory manager who had received due notice, was validly before the Authority. The appeal filed against the gratuity order was found to be beyond the statutory limitation period prescribed under Section 7(7) of the Act. Consequently, the court found no fault with the Appellate Authority for declining to number or admit the appeal.

The court also observed that since the factory continued to function under the same licence with only a change in licensee following the proprietor’s death, the establishment remained the same in the eyes of law. Accordingly, notice served on the factory manager was deemed constructive notice to the employer. Having examined the materials and statutory framework, the court declined to exercise its writ jurisdiction under Article 226 of the Constitution of India and directed that the deposited amount be released to the worker.

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The petitioners in the writ petition were legal representatives of late Samuel Jose @ Jose Samuel, the proprietor of Thankam Cashew Factory, Kollam, Kerala. The petition was filed seeking a writ of mandamus against the Regional Joint Labour Commissioner to number and admit an appeal filed against an ex parte gratuity order passed by the Deputy Labour Commissioner (Controlling Authority).

Additional Respondent No.3, who was a former worker of the Thankam Cashew Factory, had superannuated on 30.10.2021. She filed an application under Section 7(1) of the Payment of Gratuity Act, 1972 for release of gratuity due to her. Upon the employer’s refusal to entertain the claim, she initiated proceedings under Section 7(4) of the Act by filing GC No.361/2022 before the Controlling Authority.

In the said proceedings, the employer was shown as the Managing Director of the factory. The notice of the proceedings was served and acknowledged on 08.02.2023 by one Anil Xavier, the then manager of the factory. Despite service, no appearance was made before the Authority, and on 04.10.2023, an ex parte order (Ext.P1) was passed awarding gratuity of Rs. 44,438/- along with 10% annual interest.

Subsequently, revenue recovery proceedings were initiated for execution. The petitioners then filed an application (Ext.P2) before the Authority to set aside the ex parte order, alleging it was passed against a dead person. They contended that since the proprietor had passed away on 22.02.2022, the order was non est in law.

After receiving no response, the petitioners filed an unnumbered appeal (Ext.P4) under Section 7(7) of the Gratuity Act before the Appellate Authority on 19.05.2025, accompanied by an application (Ext.P5) to condone the 472-day delay in filing the appeal. They also submitted documents including the death certificate of the proprietor (Ext.P3), receipt of deposit (Ext.P8), and the current factory licence in the name of petitioner No.1 (Ext.P10). The appeal was not admitted or numbered initially by the Appellate Authority.

The petitioners contended that:

1. The order was issued against a deceased person and hence void ab initio.

2. The Appellate Authority was bound to number the appeal and consider the application for condonation of delay.

The respondents argued that:

1. As per Section 2(f) of the Gratuity Act, the manager is deemed the employer for purposes of gratuity proceedings.

2. Since the manager had received notice, the employer was duly represented.

3. The appeal was filed beyond the maximum permissible limit of 120 days under Section 7(7), hence not maintainable.

Relying on Ext.P9 and Ext.P10, the petitioners submitted that after the proprietor’s death, the factory licence was transferred to the deceased’s wife, who was petitioner No.1. However, the respondents pointed out that the factory establishment continued to operate as before, and that constructive notice through the manager was sufficient under the Act.

The court examined the contentions and noted: "Ext.P1 order is an order against a dead person." However, it proceeded to consider whether such an order could still be valid under the statutory framework.

It stated: "The manager of the establishment admittedly received notice of the proceedings under the Gratuity Act. This is a constructive notice to the ‘employer’ as defined in the Gratuity Act."

The judgment quoted Section 2(f) of the Gratuity Act, which defines "employer" to include "where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person." Accordingly, the court concluded: "I am in perfect agreement with the argument raised by the learned counsel for respondent No.3. I hold that the ‘employer’ of Thankam Cashew Factory was properly represented in the proceedings before the Controlling Authority with the service of notice to the manager."

On the issue of limitation, the court considered Section 7(7) of the Payment of Gratuity Act and cited the first proviso: "Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days."

Thus, the total permissible delay period is 120 days.

The court referenced precedents including Commanding Officer, Naval Base and Others v. Appellate Authority Under the Payment of Gratuity Act [2004 KHC 1073], which held: "When the Legislature has limited the jurisdiction of the Appellate Authority to condone the delay in filing an appeal only to a limited period of 60 days, the same authority cannot extend the time or condone the delay of any further period."

It also cited Secretary Sree Avittom Thirunal Hospital v. State of Kerala [2023 KHC 9015], observing: "For all the intents and purposes, there cannot be any condonation of delay by taking the aid of the Limitation Act."

Regarding the judgment relied on by the petitioners (Ashok Transport Agency v. Awadhesh Kumar [(1998) 5 SCC 567]), the court noted: "The ratio in Ashok Transport Agency... is not applicable to the facts of the case. The provisions of Gratuity Act are self-contained and the provisions of CPC are applicable only to certain limited purpose of enquiry, as provided in Section 7(5) of the Payment of Gratuity Act."

The court held that the appeal filed was beyond the permissible 120-day period and was not maintainable. It recorded: "The Appellate Authority cannot be found fault with for not numbering the appeal."

Finally, the court examined the validity of the gratuity award and stated: "I have gone through Ext.P1 order. There is no patent error or irregularity in the order awarding gratuity."

It concluded: "Having regard to the finding that the employer has received notice regarding the proceedings and the Controlling Authority rightly considered relevant aspects while passing the Award, this Court finds no reason to interfere with the Award exercising jurisdiction under Article 226 of the Constitution of India."

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The court issued the following directions:

"Therefore, the petitioners are not entitled to the reliefs sought for in the Writ Petition."

It noted that an amount of Rs.60,362/- had already been deposited by the petitioners before the Appellate Authority at the time of appeal. It directed: "The Appellate Authority shall release the amount to respondent No.3 forthwith."

Additionally, the court ordered procedural compliance: "Registry shall forward the copies of the judgment to the Controlling Authority and the Appellate Authority."

Accordingly, the Writ Petition was dismissed.

Advocates Representing the Parties:

For the Petitioners: Sri. H. Vishnudas, Advocate

For the Respondents: Sri. VK Sunil, Senior Government Pleader; Sri. K.M. Firoz, Advocate

Case Title: Thankamma & Ors. v. Regional Joint Labour Commissioner & Ors.

Neutral Citation: 2025: KER:56723

Case Number: WP(C) No. 24720 of 2025

Bench: Justice K. Babu