The petitioner claims to have been a paid Secretary of the respondent Society, who resigned on 02.02.1999. The petitioner's contention before this Court, is the denial of gratuity payable to him, for the 15 years of service; he admittedly rendered in the respondent Society. The petitioner claims for enhancement of service benefits, granted by the Arbitrator, as modified by the Tribunal and the payment of gratuity, which was declined by both authorities. Further, the Tribunal is said to have reduced the interest mulcted on the Society from 18% to 9%, which is also assailed as not permissible in an appeal filed by the petitioner. 2. The brief facts leading to the writ petition are that, the petitioner had been an employee of the Society. Once, he is said to have been dismissed and then reinstated in service. Again, on charges of misappropriation, the petitioner was suspended and subsequently reinstated. However, the charge of misappropriation having been proved, the petitioner was dismissed from the service of the Society. The petitioner however contends that, even before the dismissal order, a resignation was submitted by the petitioner.
3. In any event, the petitioner ceased to be in employment in the year 1999. Later on in the year 2003, the petitioner moved an application before the Arbitrator under Section 69 of the Kerala Co-operative Societies Act, 1969 (for brevity, 'the KCS Act') for service benefits as also gratuity. The petitioner claimed an amount of Rs.53,744/-; comprising of (i) salary for June 1998, (ii) festival allowance; of Rs.2,100/-, (iii) refund of Security Deposit of Rs.3,000/-, (iv) Gratuity of Rs.15,750/-, (v) Provident Fund of Rs.11,123/-, (vi) leave salary of Rs.14,700/- all with applicable interest and additionally (vii) damages of Rs.25,000/-.
4. The respondent Society also moved an arbitration case, wherein, they had some monetary claims against the petitioner. The Society claimed a total of Rs.34,786/- with 18% interest under various heads. Both the claims were partly allowed by the Arbitrator. The petitioner was granted an order to realise Rs.3,000/-, being the security deposit and the Provident Fund contributions made by him to the extent of Rs.5,050/- with 18% interest from 28.05.2003. It was specifically found that the petitioner was dismissed from the service of the Society for gross misconducts; which order was found to have been not challenged by the petitioner. The Society's suit also was decreed permitting realisation of Rs.15,062/- with 18% interest from 27.08.2003. So obviously on setting off of the respective claims the petitioner was liable to pay amounts to the Society.
5. The petitioner took the matter in appeal before the Tribunal. The Society did not challenge the order of the Arbitrator; neither in its favour or against it. The petitioner also did not challenge the order passed by the Arbitrator in favour of the Society, in the suit filed by the Society. As is evident from Ext.P3, only one appeal was filed and even the petitioners contention before this Court is with respect to service benefits alone. Hence, the order passed in favour of the Society, by the Arbitrator has to be found to have attained finality.
6. Before the Tribunal, the petitioner took up a contention, with respect to the denial of certain claims made by the petitioner before the Arbitrator. The Tribunal, granted wages for June 1998, festival allowance and leave surrender allowance in addition to Provident Fund and security deposit allowed by the Arbitrator. Gratuity was declined. The petitioner's contention primarily is on the entitlement to gratuity, which he claims by virtue of his 15 years service in the respondent Society.
7. The petitioner's Counsel would place reliance on Dhanalakshmi Bank Ltd. v. N.R. Ramachandran and Another [2012(2) KLJ 236], wherein, it was held that mere termination of service, would not lead to forfeiture of gratuity and there should be a separate order, passed by the employer, to forfeit the gratuity, on grounds specifically enumerated in the Payment of Gratuity Act, 1972.
8. It is pertinent that, the dismissal order has not been produced either by the petitioner or the respondent. The jurisdiction of this Court under Article 226 of the Constitution of India, when considering concurrent findings of the lower authorities is well defined. It may not be possible for this court to go into the facts and carry out an exercise of re-appreciation of evidence.
9. The fact remains that, though the petitioner's termination remains un-assailed; there is absolutely no evidence, documentary or otherwise as to the gratuity having been forfeited to make good the loss of the Society; on account of the misappropriation alleged. The Society has not even raised such a contention; nor could it so do.
10. Admittedly the Society filed a suit for recovery of the amounts due to it from the petitioner; which stood partly allowed. The Society could not seek any further remedy of forfeiture, since any claim for loss caused ought to have been agitated before the Arbitrator. With respect to the claim of gratuity, the Tribunal merely states that the order of dismissal came into effect earlier to the resignation and the petitioner is hence not entitled to gratuity or retirement benefits. The gratuity claim cannot be so lightly rejected. The petitioner is hence found to be entitled to gratuity as on the date of his termination, computed on the last pay drawn, with 6% interest from that date to the date of payment.
11. The contention with regard to reduction of interest by the Tribunal, also has to be upheld. In the context of the Society, having not filed an appeal against the order of the Arbitrator, the interest granted therein cannot be reduced. However the petitioner would be entitled to 18% interest only for the amounts granted by the Arbitrator. The modification by the Tribunal, partly allowing what was rejected by the Tribunal, would still be payable, only with 9% interest.
The writ petition is partly allowed, leaving the parties to suffer their respective costs.
Sd/-
K. VINOD CHANDRAN, JUDGE SB // true copy // P.A To Judge.