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SMT. MOLLYKUTTY CHERI v. THE DISTRICT LABOUR OFFICER - WA No. 1163 of 2006  RD-KL 105 (5 July 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWA No. 1163 of 2006()
1. SMT.MOLLYKUTTY CHERI,
1. THE DISTRICT LABOUR OFFICER,
For Petitioner :SRI.ABRAHAM VAKKANAL
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.V.K.BALI The Hon'ble MR. Justice P.R.RAMAN
O R D E R
V.K. BALI, C.J. & P.R.RAMAN, J.W.A.No. 1163 of 2006
Dated, this the 5th day of July, 2006
V.K.Bali,C.J. Dr.S.Balachandran, Nandanam, the second respondent arrayed in the original petition filed a Gratuity Case claiming gratuity before the District Labour Officer (Controlling Authority under the Payment of Gratuity Act), the first respondent arrayed in the original petition. Vide order Ext.P6 a direction was issued to the petitioner, the appellant in the present writ appeal, to pay gratuity amount of Rs.1,05,000/- to the second respondent. When notice Ext.P7 demanding the amount was issued to the appellant, the writ petition was filed challenging Exts.P6 and P7.
2. The question raised by the appellant was that the second respondent was a freelancer and he was not an employee of the appellant as he was paid at the rate of Rs.500/- per operation. Even though, the learned Single Judge held that the question raised was a pure question of fact, a finding in that regard by the first respondent cannot be subject matter of interference under Article 226 of the Constitution of India as an appellate authority, unless the decision arrived at by the first respondent is manifestly perverse, the learned Single Judge after going through the order Ext.P6 found that the same was, unlike many similar W.A.No..1163/2006 2 orders, an order with clarity of thought and resplendent with reasoning with elaborate discussion of evidence on record which could not by any stretch of imagination be considered as perverse. Even though such were findings the learned Single Judge once again appreciated the controversial facts and independently returned a finding that the second respondent was not a freelancer and was instead an employee of the petitioner.
3. In this writ appeal challenging the order passed by the learned Single Judge dated 29th May, 2006 counsel for the appellant was unable to make any dent on the findings of fact, the only question raised before the learned Single judge. Surely, not only the original authority but the learned Single judge had also examined the controversial facts and it is a case of concurrent findings on the issue of fact returned against the petitioner. Realising that it may not be possible for the petitioner to seek setting aside of the impugned orders like Exts.P6 and P7 and also the order passed by the learned Single judge on the question aforesaid the learned counsel urged before us that the salary of the second respondent as per the evidence was Rs.6000/- per month. However, rejecting this evidence and accepting the contention of the second respondent, the first respondent found in Ext.P6 that his salary was Rs.500/- per day, which would come to Rs.15000/- per month. So on going by the evidence, his salary was either Rs.6000/- or Rs.15000/- per month. Hence the second respondent could not be considered as an employee eligible for gratuity as his salary was W.A.No..1163/2006 3 above Rs.2500/- or Rs.3500/- till 24.5.1994, i.e. till the restriction on wage was omitted from the Act. After this, he worked in the petitioner's hospital on his own admission only upto 2.11.1997. Between 24.5.1994 and 2.11.1997 there remains 3 years 6 months and 8 days, which does not qualify him for gratuity as a minimum of five years is required for gratuity as per Section 4(1) of the Act and therefore the second respondent was not eligible to get gratuity at all. It is contended by the learned counsel for the appellant that the entitlement of the second respondent for gratuity as per Section 4(1) is a question of law that can be debated at any stage. It is the conceded position that this point was not raised at any stage and it has been taken up for the first time in Ground D in the memorandum of writ appeal. It may be true, that question of law can be raised at any stage, but the same has to emanate from admitted facts. It is on the basis of facts pleaded for the first time that the appellant is endeavouring to show that the salary of the second respondent was above Rs.2500/- or Rs.3500/- and hence he would not be entitled to gratuity as per Section 4(1) of the Act. The question raised is entirely dependent upon evidence and hence the appellant cannot be permitted to urge this ground for the first time in this writ appeal. No merits. Dismissed. V.K. BALI, W.A.No..1163/2006 4 CHIEF JUSTICE. P.R.RAMAN,
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