E CAPS COMPUTERS INDIA PVT LTD V. DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL)

WP(C)/2668/2021

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The case involves E Caps Computers India Pvt Ltd, the petitioner, challenging the order of the Appellate Authority under the Payment of Gratuity Act, 1972, which had rejected the petitioner's appeal against a decision mandating the payment of gratuity to the second respondent, N. Santhosh. The petitioner argued that Santhosh was never an employee but worked on a commission basis and that the relieving letter he provided was forged. However, the Controlling Authority and the Appellate Authority found sufficient evidence, including tax returns and a relieving certificate, to establish Santhosh's employment and entitlement to gratuity. The High Court of Kerala, after reviewing the submissions and evidence, dismissed the writ petition, agreeing with the lower authorities' findings.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 726558 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 02-02-2021
• Assessment Year: misc
• Laws Referred To: Payment of Gratuity Act, 1972
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P VIJAYAKUMAR
• Assessee Lawyers: ARUN VADAKKAN; C P PRADEEP
• Keywords: Commission basis; Employee Definition; Forged Document; Payment of Gratuity; Relieving Certificate
• Section: 2(e); 7(4); 7(7)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942 WP(C).No.2668 OF 2021(G) PETITIONER: E CAPS COMPUTERS INDIA PVT LTD 28/2866A, NETAJI ROAD, KADAVANTHRA, KOCHI - 682020, REPRESENTED BY ITS MANAGING DIRECTOR, K.GUNASEKHARAN, AGED 47 YEARS, S/O.T.M. KRISHNAN, 28/2966 A, NETAJI ROAD, KADAVANTHRA, KOCHI - 682020. BY ADVS. SRI.ARUN MATHEW VADAKKAN SRI.C.P.PRADEEP RESPONDENTS: 1 DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL) KOCHI, APPELLATE AUTHORITY, UNDER PAYMENT OF GRATUITY ACT, 1972, KAKKANAD, ERNAKULAM 682030, 2 N. SANTHOSH 20A, G1, KAVERI FLATS, MANIMEGALAI STREET, MADIPPAKKAM, CHENNAI - 600091. ASG--SRI P VIJAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.2668 OF 2021(G) 2 JUDGMENT Dated this the 2nd day of February 2021 Heard the learned counsel for the petitioner. The petitioner is challenging the order passed by the Appellate Authority under the Payment of Gratuity Act, at Ext.P4, thereby rejecting his appeal filed under Section 7(7) of the Payment of Gratuity Act. 2. The learned counsel for the petitioner drew my attention to the document at Ext.P1 and argued that what was paid by the petitioner to the 2nd respondent was merely a commission and the 2nd respondent was not an employee of the petitioner at any point of time. It is further argued that the 2nd respondent has filed a relieving letter which is a forged and fabricated document. The same ought not to have been considered by the authorities below while allowing the application under Section 7(4) of the Payment of Gratuity Act. 3. I have considered the submissions so advanced and perused the materials placed before me. 4. The 2nd respondent preferred an application for WP(C).No.2668 OF 2021(G) 3 determination of gratuity under Section 7 of the PG Act before the Controlling Authority with an averment that on account of resignation, he came to be relieved on 30.06.2015 and the petitioner has not paid him the gratuity payable under the PG Act, 1972. The petitioner herein opposed the application upon being noticed by the Controlling Authority. The petitioner contended that the 2nd respondent was not an employee and he worked on commission basis as Service Engineer in the year 2004 at the Chennai Office. He left the work and rejoined as Sales Consultant on commission basis subsequently. 5. After hearing both the parties, the Controlling Authority on the basis of evidence on record came to the conclusion that the 2nd respondent was an employee as defined under Section 2(e) of the PG Act, 1972. The Controlling Authority relied on the relieving certificate at Ext.A1 and held that this certificate in clear terms, shows that the 2nd respondent was working as Branch Manager of the Cochin Branch of the petitioner Company and his last drawn salary was Rs.35,000/-. It is further found that in the income tax returns at Ext.A4, name of the WP(C).No.2668 OF 2021(G) 4 employer is specifically mentioned as eCaps Computers India Pvt. Ltd and in the Form 16 also the opposite party duly authorised the deduction at source by showing itself as the employer. Thus, this evidence was found to be sufficient by the Controlling Authority to hold that the 2nd respondent has proved the fact that he is an employee of the petitioner. 6. In an appeal under Section 7(7) of the PG Act, the Appellate Authority, under the PG Act confirmed the findings of fact recorded by the Controlling Authority and held that the petitioner herein has not furnished any details of action initiated against the 2nd respondent for producing the alleged false document. The Appellate Authority had undertaken the exercise of scrutiny of signature of the Director of the petitioner in the relieving order as well as form 16 issued by the Director of the petitioner Company and concluded that signature on both these documents are identical. 7. In the light of this position of record as reflected from the impugned orders, it cannot be said that the finding arrived at by the authorities below is perverse or unsustainable. The same is WP(C).No.2668 OF 2021(G) 5 based on evidence produced on record by the 2nd respondent and there was no contra evidence. In this view of the matter, no case for interference in writ jurisdiction is made out. The petition thus fails and is dismissed. Sd/- A.M.BADAR Nsd JUDGE WP(C).No.2668 OF 2021(G) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE DETAILS OF AMOUNT PAID BY THE PETITIONER TO THE 2ND RESPONDENT FROM 1.4.2009 TO 31.03.2010. EXHIBIT P2 TRUE COPY OF THE NOTICE UNDER RULE 10 OF THE PAYMENT OF GRATUITY ACT 1972 DATED 22.05.2017 ISSUED BY CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE CONTROLLING AUTHORITY IN APPLICATION NO. 48/(04)2017/D1 DATED 30.07.2019. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 12.01.2021 IN GA NO. 39/11/2019/B6 ISSUED BY 1ST RESPONDENT. "