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K.K.RAVEENDRAN NAMBIAR versus P.V.PRABHAKARAN, S/O. KANNAN NAIR

High Court of Kerala

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K.K.RAVEENDRAN NAMBIAR v. P.V.PRABHAKARAN, S/O. KANNAN NAIR - WA No. 1196 of 2006 [2007] RD-KL 359 (5 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 1196 of 2006()

1. K.K.RAVEENDRAN NAMBIAR,
... Petitioner

Vs

1. P.V.PRABHAKARAN, S/O. KANNAN NAIR,
... Respondent

2. THE DISTRICT LABOUR OFFICER,

3. THE APPELLATE AUTHORITY,

4. V.RAMACHANDRAN, PARTNER,

5. STATE OF KERALA, REP. BY ITS

For Petitioner :SRI.ANIL SIVARAMAN

For Respondent :GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.V.K.BALI The Hon'ble MR. Justice M.RAMACHANDRAN

Dated :05/01/2007

O R D E R

(V.K.BALI, C.J & M.RAMACHANDRAN, J)

W.A.No.1196 of 2006

Dated this the 5th day of January, 2007



JUDGMENT

Ramachandran, J:

This appeal is filed by the petitioner in W.P.(C). No.12259 of 2006, who was an employer in respect of the first respondent. An application for gratuity had been filed by the first respondent, but it was rejected by the controlling authority on a finding that the establishment in which he was employed was not a factory and therefore the provisions of the Payment of Gratuity Act was not applicable thereto. However, the Appellate Authority had found that the manufacturing activities undertaken by the employer was sufficient to nominate it as a factory in view of Ext.P5 issued by the Government of Kerala dated 18-10-1993, in exercise of powers under Section 85 of the Factories Act. Government had notified that provisions of the Factories Act will apply to any place in the State of Kerala wherein any manufacturing process specified in the Schedule was [WA No.1196 of 2006] carried on notwithstanding that the number of persons employed therein is less than 10, if the establishment is working with the aid of power. Crushing of animal bone including bone meals was therefore an activity which attracted the provisions of the Factories Act. If the establishment is working with three or more persons, all sections of the Factories Act excepting 6(i)(a)(aa), (b) and (c) of the Act were to apply. The decision of the Appellate Authority reversing the order of the Controlling Authority had been subjected to challenge in W.P.(C).No.12259 of 2006.

2. The learned Judge had elaborately considered the matter and had relied on a decision of the Division Bench of this Court in Chathu v. District Labour Officer [2001 (1) KLT 147]. We find that the contentions raised by the employer had been adequately examined by the learned Judge before coming to the conclusion that the precedents adequately covered the field.

3. Sri.Anil Sivaraman, appearing on behalf of the appellant, submits that Chathu's case requires a [WA No.1196 of 2006] reconsideration. He submits that the special provisions under section 85 of the Factories Act only enables the Government to extend the provisions of the Act to particular industries, but that by itself does not convert it to a factory so as to give access to Payment of Gratuity Act, without anything more. The capacity for payment is a prime consideration and the Parliament in its wisdom had been of opinion that a viable unit with minimum number of employees alone could bear the burden of gratuity.

4. According to us, the argument is too technical. When the provisions of the Factories Act are made applicable to an establishment, at least technically it has to be considered as a factory and in exercise of our discretionary jurisdiction it will be highly improper for us to hold that the employer is thereby enabled to withhold the benefit like gratuity. Acceptance of the case of the employer would mean that after decades of service an employee will have to walk away with empty hands. [WA No.1196 of 2006]

5. In the aforesaid circumstances, we are of the view that no interference is called for or a reconsideration of settled position of law is required. The writ appeal is dismissed. Sd/- V.K.BALI (CHIEF JUSTICE) Sd/- M.RAMACHANDRAN

(JUDGE)

mks/ - True Copy - P.S.to Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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