PATTATHUVILA K DAMODARAN Vs. M KASSIM KUNJU

JUDGEMENT

(1.) IN all these original petitions, common questions arise and therefore they were heard together and disposed of by a common judgment.

(2.) SOME of the respondents were employees in cashew factories run by the petitioners. They were taken over by the Government of Kerala under the provision of the Kerala Cashew Factories (Acquisition) Act, 1974. All the employees became the employees of either Cashew Corporation or Cashew Workers Apex Industrial Co-operative Society Ltd. The said Act was passed mainly to prevent large scale unemployment among the workers in the cashew industry and to provide employment to workers, who were rendered unemployed and secure to them just conditions of service. The Act provided that if the Government is satisfied that the occupier of a cashew factory does not conform to the law relating to safety conditions of service or payment of wages to the workers of the factory or that there has been large-scale unemployment other than by way of lay-off or retrenchment of the workers of the cashew factory, etc. , order of acquisition can be made by a declaration. Section 3 (1) deals with such a declaration. Sub-section (3) of Section 3 provided that on the making of a declaration under Sub-section (1), the cashew factory to which the declaration relates, together with all machinery, other accessories and other movable properties as were immediately before the appointed day in the ownership, possession, power or control of the occupier in relation to the factory and all books of account, registers and other documents relating thereto, shall stand transferred to, and vest in the Government. Section 8 provided that the Government may, by order in writing, direct that a cashew factory vested in them under the Act shall, instead of continuing to vest in the Government, vest in the Corporation with effect from such date (not being a date earlier than the appointed day) as may be specified in the order. Sub-section (2) of Section 8 provided that where an order vesting a cashew factory in the Corporation is made under Sub-section (1), all the rights, liabilities and obligations of the Government in relation to such factory shall, on and from the date of such vesting, be deemed to have become the rights, liabilities and obligations respectively of the Corporation. Section 10 (1) provided that every person who is a workman within the meaning of the Industrial Disputes Act, 1947 (Central Act 14 of 1947), and has been, immediately before the appointed day, in the employment of a cashew factory vested under the Act in the Government or the Corporation, as the case may be, shall become, on and from the appointed day, an employee of the Government, or as the case may be, of the Corporation and shall hold office or service in the cashew factory on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him if such cashew factory had not been transferred to, and vested in, the Government or the Corporation, as the case may be, and continue to do so, unless and until his employment in such cashew factory is duly terminated or until his remuneration, terms and conditions of employment are duly altered, by the Government or the Corporation, as the case may be. Sub-section (4) of Section 10 lays down that where under the terms of any contract of service or otherwise any person whose service becomes terminated or whose service becomes transferred to the Government or the Corporation by reason of the provisions of the Act, is entitled to any payment by way of gratuity or retirement benefits or for any leave not availed of, or any other benefits, such person may enforce his claim against the occupier of the cashew factory but not against the Government or the Corporation.

(3.) IT is not disputed that all the employees involved in these cases were superannuated or died subsequent to the appointed date. In other words, at the time when they were superannuated or expired, they were not the employees of the petitioners, but the employees of the Cashew Corporation or the Cashew Workers Apex Industrial Cooperative Society Ltd. (hereinafter referred to as "the CAPEX" ). Neither the petitioners nor the respondents got a case that these employees were not entitled to gratuity. The rival contention raised in these original petitions is regarding the identity of the person who is liable to pay. According to the petitioners, they ceased to be the employers on the appointed date, and, therefore, they were not liable to pay, the gratuity for the period subsequent to that. The stand taken by the respondents, especially the CAPEX, is that they are not liable to pay the gratuity in respect of these employees for any period, at any rate, for the period prior to the appointed day. This question was considered by the controlling authority under the Payment of Gratuity Act in all the cases and he took the view that in regard to the period prior to the appointed day, petitioners are liable to pay the gratuity and for the subsequent period, the CAPEX was liable to pay gratuity. That finding has been upheld by the appellate authority, in all the cases, except Original Petition No. 6376 of 1991-H where no appeal was preferred against the order of controlling authority.