1

WPC 36325, 35649 and 37503/22

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE BASANT BALAJI

WEDNESDAY, THE 13

TH

DAY OF MARCH 2024 / 23RD PHALGUNA, 1945

WP(C) NO. 36325 OF 2022

PETITIONER/S:

1 SHANKARA NARAYANAN P.A.,AGED 68 YEARS

POOSSERY HOUSE, RAMAVARMAPURAM P.O., KUTTIMUKK,

TRISSU- 680631.

2 MOHANAN K.K,KUNNEKATTUKARA (H), EAST POTTA, POTTA

P.O., TRISSUR- 680722.

3 THILAKAN P.S.,POIKADAN (H), KUTTICHIRA P.O.,

KUNDUKUZHIPADAM, TRISSUR - 680724.

4 N.M. MANOHARAN,NAROTH PARAMBIL (H), AYYANTHOLE P.O.,

TRISSUR, 680724.

5 M.G. BABU, MAMBILLY (H), KAANDASSAN KADAVU,

KAARAKUKKU- 680613.

6 K.K. CHANDRAN,S/O KUNJAKKAN, KARAYIL (H), EDAMUTTAM

P.O., TRISSUR- 680568.

7 CHANDRAN P.V.,PANAPARAMBIL (H), CHOOLUR P.O., VALAPAD

VIA, TRISSUR- 680567.

8 SURESH KUMAR A.B.,ALAIKAL (H), CHOOLUR P.O., VALAPAD,

680567.

9 VENUGOPAL K.P., KOLANTHRA HOUSE, KAIPAMANGALAM,

TRISSUR, CHENDRAPINNI EAST, 680681.

10 R. SUDHAKARAN, S/O RAMAN, PUTHUSSERIL (H), THODUPUZHA

P.O., OLAMATTAM, IDUKKI -685584.

11 SASI P.K.,S/O KARUNAKARAN, PARAKKAL (H), KOLANI P.O.,

THODUPUZHA, IDUKKI, 685608.

12 CHANDRA SALIM K., SREE KRISHNA BHAVAN, ELAPPARA P.O.

IDUKKI, 685501.

13 SATHEESAN C.M.,S/O MADHAVAN, CHILANKA, MANAKKAD P.O.,

THODUPUZHA, IDUKKI- 685583.

14 FRANCIS K.,FEBIN VILLA, TRINITY NAGAR, KARUMANOOR

PARASSALA P.O., 695502.

2024/KER/25533

2

WPC 36325, 35649 and 37503/22

BY ADVS.

DEEPU THANKAN

UMMUL FIDA

LAKSHMI SREEDHAR

LEKSHMI P. NAIR

SHAHNAS K.P

RESPONDENT/S:

1 KERALA STATE BEVERAGES (M AND M) CORPORATION LTD.,

BEVCO TOWER, VIKASBHAVAN, PALAYAM, THIRUVANANTHAPURAM

- 695 033.

2 MANAGING DIRECTOR, KERALA STATE BEVERAGES (M & M)

CORPORATION LTD.,

BEVCO TOWER, VIKASBHAVAN, PALAYAM, THIRUVANANTHAPURAM

- 695 033.

3 KERALA ABKARI WORKERS WELFARE FUND BOARD,

THIRUVANANTHAPURAM - 695 001, REP. BY ITS CHIEF

WELFARE FUND INSPECTOR.

BY ADV NAVEEN T – R1 AND R2,

SHRI T KRISHNAMOORTHY – R3

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

13.03.2024, ALONG WITH WP(C).35649/2022 and, 37503/2022, THE COURT

ON THE SAME DAY DELIVERED THE FOLLOWING:

2024/KER/25533

3

WPC 36325, 35649 and 37503/22

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE BASANT BALAJI

WEDNESDAY, THE 13

TH

DAY OF MARCH 2024 / 23RD PHALGUNA, 1945

WP(C) NO. 35649 OF 2022

PETITIONER/S:

1 KALADHARAN K.,AGED 60 YEARS

S/O. KRISHNAN KUTTY, KOZHUKKULLIPPADICHOORAKKODE

CHOOLANOOR P.O. PALAKKAD 678 574.

2 ARJUNAN C, S/O. CHELLAPPAN, VRINDAVAN NAGAR 198

KADAPPAKKADA P.O. KOLLAM -691 008.

3 MADHUSOODANAN K., S/O. KUMARAN, THRIKKADAVOOR, KOLLAM

691 601.

4 UNNIKRISHNAN P.,S/O. PARAMU ,VILAYILVEEDU, MEENADU,

KOLLAM -691 572.

5 RAGHUNATH M.G.,S/O. MADHAVAN PILLAI, INDIRAMANDIRAM,

KULANGARABHAGAM, CHAVARA, KOLLAM 691 583.

6 BABU. M., S/O. MADHAVAN MANUSSERIL HOUSE, ULAVAKKAD,

NOORANAD PO, ALAPPUZHA - 690 504.

7 RAJAN R.,S/O. RAGHAVAN, REVATHY MANDIR, AICKADU,

KODUMAN P.O., PATHANAMTHITTA - 691 555.

8 SADASIVAN K., S/O. KESAVAN AKHILNIVAS, ADOOR P.O.,

AMMAKANDAKARA, PATHANAMTHITTA 691 523.

9 RATNAKARAN PILLAI K., S/O. KUNJAN PILLAI MADAPPALLY,

CHAVARA, KOLLAM- 691 585.

10 PRASANNA KUMAR C.,S/O. CHELLAPPAN PILLAI AYYANEZHATHU,

THOTTINUVADAKKU CHAVARA P.O., KOLLAM 691 583.

11 SADASIVAN A.N., S/O. NARAYANAN ANJILIPARAMBU, VADAKKAL

P.O., ALAPPUZHA -688 003.

12 BALANPILLASATHEESHKUMAR,S/O. BALANPILLA, ROHINI,

MANAKKAD NAGAR, 95 D, VADAKKEVILA, KOLLAM 691 010.

13 RAVIKUMAR S., S/O. SANKARAN K. GOWRISANKARAM,

MALAMELBHAGAM KAREEKULANGARA. P.O., KAYAMKULAM

ALAPPUZHA- 690 572.

2024/KER/25533

4

WPC 36325, 35649 and 37503/22

14 BALAKRISHNAN N.,S/O. NANU, BEERA BHAVANAM, KADAMPANADU

PATHANAMTHITTA 691 552.

15 THAMPI. C., S/O. CHINNA PANICKER, ELIPPAKULAM P.O.,

VALLIKKUNNAM, ALAPPUZHA - 690 503.

16 SARASAN.S., S/O. SUKUMARAN PERUMPRALVADAKKATHIL,

PADANILAM P.O., NOORANAD, ALAPPUZHA 690 529.

17 N.K. VIJAYAN, S/O. KUNJAPPAPANICKER NAMBIYARKULANGARA

KIZHAKKETHIL NADUVILEMURI, NOORANAD, ALAPPUZHA -

690529.

18 RAJAN G.,S/O. GOVINDAN, ASHARETHEKIZHAKETHIL

PEROORKARAZHAMA, THAMARAKULAM ALAPPUZHA- 690 505.

19 RAJENDRAN O., S/O. UMMINI, MANASSERIL, ERUVA P.O.,

ALAPPUZA -690 572.

20 SASIKUMAR A.S.,S/O. SREEDHARAN NAIR, INCHOOR,

AMBALAMPADY, VARAPETTY VILLAGE, KOTHAMANGALAM

ERNAKULAM- 686 691.

21 NJALOR JOSEPH FRANCIS,S/O. JOSEPH, NJALOOR HOUSE,

KANJIRAKKAD RAYONPURAM P.O., PERUMBAVOOR , ERNAKULAM -

683 543.

22 SURENDRAN P.K., S/O. KUMARAN, PUTHENKUDY,

MANACKAPPADY, PIRAROOR, MATHOOR, ERNAKULAM 683 574.

23 RADHAKRISHNAN NAIR.J., S/O. JANARDHANAN PILLAI,

KADAKAVOOR P.O., CHIRAYINKEEZHU THIRUVANANTHAPURAM 695

306.

24 N. KRISHNAN NAIR,S/O. E. NEELAKANTAN PILLAI, GOKULAM,

PANIMOOLA, ANDOORKONAM P.O., THIRUVANANTHAPURAM - 695

584.

25 RAVEENDRAN K., C/O. SATHYABHAMA C. CHULLIMADA,

ERIMAYUR, PALAKKAD- 678 546.

26 MANIYAN S.,S/O. SUKUMARAN. MANIVILASAM, VALIYAELA

THOTTAVARAM, CHIRAYINKEEZHU THIRUVANANTHAPURAM - 695

304.

27 RAVEENDRAN NAIR. M,S/O. MADHAVAN PILLAI

SAROJINIMANDIRAM, NETHAJI LANE, KAZHAKOOTTAM PO,

THIRUVANANTHAPURAM - 695 582.

28 VIDHYADHARAN R.,S/O. RAMAN, KRISHNAPRIYA,

KODUVAYUR.PO PALAKKAD - 678 501.

29 K.KANNAN,S/O. KOTHANDAN, KURUTHIKODE HOUSE, THARUR,

PALAKKAD -678 544.

2024/KER/25533

5

WPC 36325, 35649 and 37503/22

30 MOHANAN K.M., KUNDIL HOUSE, KIZHAKKETHARA, KUTHANNUR,

PALAKKAD- 678 721.

31 CHANDRAN, S/O. KARTHU, SRUTHINIVAS, CHATHAMANGALAM,

NENMARA, PALAKKAD -678 508.

32 SREENIVASAN T.K.,S/O. KRISHNAN THOTTUPURATH HOUSE,

BANK ROAD, AYALUR, ALATHUR, PALAKKAD 678 541.

33 MADHUSUDHANAN P.K.,S/O. KUTTAN THAVALAKKULAM, MLA

ROAD, NENMARA, CHITOOR, 678 508.

34 UNNIKRISHNAN L.,S/O. LAKSHMANAN MOOTHATTUPARAMBU,

KUZHALMANNAM PO, PALAKKAD -678 702.

35 BABY THOMAS, S/O. THOMAS., KOCHUZHATHIL, THIRUVAZHIYAD

PO THIRUVILAD, PALAKKAD - 678 510.

36 JOY MATHEW, S/O. MATHEW, NEDUMPALAKUNNEL, SWTS ROAD,

ALUVA, ERNAKULAM -683 101.

37 SUKUMARAN.P.,S/O. PADMANABHAN CHENGAZHAVELIL,

THAZHEKKARA P.O., MAVELIKKARA, ALAPPUZHA 690 102.

38 GOPALAKRISHNAN P., S/O. PADMANABHAN SUDHEESH BHAVAN,

THAZHAKKARA.P.O., MAVELIKKARA, ALZPPUZHA 690 102

39 K.SASIDHARAN, S/O. U JANAKI THEERAM, ASRAMAM P.O.,

KOLLAM 691 002.

40 VENUGOPAL P.G., S/O. GANGADHARAN PUZHAKKAREDATH,

MUTTINAKAM, VARAPUZHA PO, ERNAKULAM -683 517.

41 VENU T.,S/O. AMMUNNI, PULICKAL PADATHU HOUSE,

UDAYAMPERUR PO., ERNAKULAM 682 307.

42 PRADEEP KUMAR,, S/O. CHANDRASHEKHARAN,

EZHUTHASSANPARAMBIL, ANTHIKKAD, THRISSUR 680 641.

43 VIJAYAN T.,,S/O. THANKAPPAN KATTAPPULLIL HOUSE,

AVALUKUNNU PO., ALAPPUZHA 688 006.

44 RAJU K.P., S/O. DAMODARAN, KAITHAPPARAMBIL HOUSE,

MAVELIPURAM KATTOOR P.O. 688 546.

45 SIVADASAN E.G.,S/O. GOPALAN. IDAMURIYIL HOUSE,

KANJIKUZHI, ALAPPYZHA - 688 523.

46 AMBIKESAN P.,S/O. PARAMU., BLOCK 18, ALAPPUZHA

MUNICIPALITY, ALAPPUZHA 688 013.

47 JOHNY JOSEPH, S/O. JOSEPH 125 METHARU, AVALUKUNNU

P.O., ALAPPUZHA -688 006.

2024/KER/25533

6

WPC 36325, 35649 and 37503/22

48 VIJAYAKUMAR C.V., S/O. VELAYUDHAN, CHERUPUNNAYIL, SL

PURAM P.O., SITHALAKSHMIPURAM, ALAPPUZHA - 688 523.

49 VINOD KUMAR C.G,CHAKINGALTHODI, VADANAMKURISHI,

PATTAMBI, PALAKKAD -679 121.

50 M.E. MATHAI, S/O. LOVELY MATHEW, MAPPANIKKATTU,

ADIMALY, CAMPCO JUNCTION, MANNAMKANDAM, IDUKKI -685

561.

51 SUSY JOSE, W/O. JOSE V.J., VADAKKUMCHIRAYIL, NEAR

NIRMALA SADAN, MUVATTUPUZHA VILLAGE, MARADY PART,

ERNAKULAM 686 661.

52 P.C.SOMAN, PANOLI HOUSE, EDAMUTTAM PO. VALAPPAD,

THRISSUR.

53 SATHEY E.P.,W/O. LATE P. SANAL PRASAD EDAKKATTIL

HOUSE, NETTOOR, MARADU ERNAKULAM -682 040.

54 PONNU. C, S/O. CHAMI,VAKKAVU, NEMMARA, PALAKKAD - 678

508.

55 PRASANNA.P., RAMANILAYAM, PALAYAPETTA, PALAKKAD -678

001.

56 KALPAKAVALLY K.P.,W/O. KALADHARAN, 409, MEZHUKILVEEDU,

CHITRA JUNCTION, AKATHETHARA, PALAKKAD 678 008.

57 K.K. SASIKUMAR, S/O. K. KARUNAKARAN, KARUNALAYAM,

ERUMAKKUZHY, NOORANAD P.O., MAVELIKKARA, ALAPPUZHA -

690 504.

58 VASANTHAKUMARAN NAIR, USHAS, T.P.NAGAR, VENPAKAL PO.,

NEYYATTINKARA, THIRUVANANTHAPURAM - 695 123.

59 SHAJI K.,S/O. KUMARAN M.K. CHENNAMMAVINAL, ADIMURIYIL,

ELAVUMTHITTA P.O. PATHANAMTHITTA 689 625.

60 T.K. SURENDRAN, S/O KESAVAN THOTTUPURATH, KALIYAR

P.O., VANNAPURAM, THODUPUZHA, IDUKKI - 685607.

61 JOSE THOMAS, S/O THOMAS KAROTTUTHAZHATH, PANNIMATTOM

P.O. VELLIYAMATTOM, IDUKKI -685588.

62 GHOSH K.K.,S/O KRISHNAN K.P., KOICKAL HOUSE,

KANJIRAMATTOM, THODUPUZHA EAST P.O., IDUKKI 685585.

63 GEORGE PAUL, S/O PAILY, CHAVITTANIYIL, THEKKUMBHAGAM

P.O. THODUPUZHA, IDUKKI -685585.

64 XAVIOUR K. LUIES,S/O K.X. LUIES, KOLLAMPARAMBIL,

KUMARAMANGALAM, IDUKKI - 685608.

2024/KER/25533

7

WPC 36325, 35649 and 37503/22

65 SAMRAJ C.G.,S/O GEORGE, VIJAYALAYAM, ARAKUNNU,

NEYYANTINKARA, ARUVIPPURAM P.O. PERUMKADAVILA,

TIRUVANANTHAPUARAM,-695126 .

BY ADVS.

DEEPU THANKAN

UMMUL FIDA

LAKSHMI SREEDHAR

LEKSHMI P. NAIR

SHAHNAS K.P

RESPONDENT/S:

1 KERALA STATE BEVERAGES (M AND M)CORPORATION,

BEVCO TOWER, VIKASBHAVAN, PALAYAM, THIRUVANANTHAPURAM

- 695 033.

2 MANAGING DIRECTOR, KERALA STATE BEVERAGES (M & M)

CORPORATION LTD.,

BEVCO TOWER, VIKASBHAVAN, PALAYAM, THIRUVANANTHAPURAM

- 695 033.

3 KERALA ABKARI WORKERS WELFARE FUND BOARD,

THIRUVANANTHAPURAM - 695 001, REP. BY ITS CHIEF

WELFARE FUND INSPECTOR.

BY ADV NAVEEN T – R1 AND R2,

SHRI T KRISHNAMOORTHY – R3

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

13.03.2024, ALONG WITH WP(C).36325/2022 AND CONNECTED CASES, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2024/KER/25533

8

WPC 36325, 35649 and 37503/22

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE BASANT BALAJI

WEDNESDAY, THE 13

TH

DAY OF MARCH 2024 / 23RD PHALGUNA, 1945

WP(C) NO. 37503 OF 2022

PETITIONER/S:

1 MANOHARAN D,AGED 68 YEARS,S/O. DAMODHARAN M.S. MANU

BHAVAN, THODUPUZHA PO, IDUKKI 685 584.

2 MOHANAN K.K.,AGED 63 YEARS,S/O KRISHNAN, PALLIPURATH,

KANJIRAMATTAM, THODUPUZHA, IDUKKI 685 585.

3 K.K. SIVAN,AGED 70 YEARS,S/O KUMARAN, AYYAPPASADANAM,

THEKKUMBHAGAM P.O. THODUPUZHA, IDUKKI 685 585

4 MOHANAN K.K.,AGED 68 YEARS,S/O KRISHNAN K, KARINKATTIL

MOHANAM, ANGADICKAL SOUTH P.O., CHENGANNOOR - 689 122

5 BABY JOSEPH,AGED 70 YEARS,S/O K S JOSEPH, KUZHIVELIL

(H) KALLIMALI, MAMMATTIKANAM, IDUKKI 685 566.

BY ADVS.DEEPU THANKAN,LAKSHMI SREEDHAR,UMMUL FIDA

LEKSHMI P. NAIR

RESPONDENT/S:

1 KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING)

CORPORATION,BEVCO TOWER, VIKASBHAVAN, PALAYAM,

THIRUVANANTHAPURAM - 695 033.

2 MANAGING DIRECTOR,KERALA STATE BEVERAGES (M & M)

CORPORATION LTD., BEVCO TOWER, VIKASBHAVAN, PALAYAM,

THIRUVANANTHAPURAM - 695 033

3 KERALA ABKARI WORKERS WELFARE FUND BOARD

THIRUVANANTHAPURAM - 696 001, REPRESENTED BY ITS CHIEF

WELFARE FUND INSPECTOR.

BY ADV NAVEEN T – R1 & R2,

SHRI KRISHNAMOORTHY – FOR R3

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

13.03.2024, ALONG WITH WP(C)36325/2022 AND CONNECTED CASE, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2024/KER/25533

9

WPC 36325, 35649 and 37503/22

‘C.R.’

JUDGMENT

(Dated this the 13

th

day of March 2024)

[WP(C) Nos.36325/2022, 35649/2022 and 37503/2022]

In these Writ Petitions, a common question arises for

consideration, and therefore, they are heard together, and a

common judgment is passed. The question to be decided is

whether the the Abkari workers working in the 1

st

respondent

corporation are entitled to gratuity under the Payment of

Gratuity Act, 1972, when they are paid gratuity and provident

fund under the Kerala Abkari Workers Welfare Fund Act, 1989

(for short ‘the KAWWF Act’).

2. For a proper understanding, W.P.(C) No.36325 of

2022 is taken as a leading case, and the facts in brief are

extracted below:

The petitioners are retired Abkari workers of the 1st

respondent Corporation. The petitioners were inducted to be

workers of the corporation as early as in 2001. The service of

2024/KER/25533

10

WPC 36325, 35649 and 37503/22

the employees of the corporation, including the Abkari workers,

are governed by the Service Rules for the Employees of the

Kerala State Beverages (M&M) Corporation Ltd (for short, ‘the

Service Rules’). Chapter V of the Service Rules deals with the

Provident Fund, gratuity and medical benefits.

3. As per Rule 76 of the Service Rules, all the employees

of the corporation are entitled to get gratuity at the time of

termination of employment.

4. As per the KAWWF Act, on superannuation, the

employees are entitled to gratuity and pension from the

contribution fund. As per section 4 of the Act, employers and

employees are liable to pay an equal amount of the contribution

fund, and it shall be paid back as provident fund, gratuity, and

family pension on superannuation.

5. When the petitioners retired from service, they were

paid lumpsum amount as provident fund and gratuity under the

KAWWF Act from 2009 and EPF amount from 2001 to 2009,

2024/KER/25533

11

WPC 36325, 35649 and 37503/22

based on the contributions made. As per Rule 76 of Chapter v

of the service rules, the petitioners are entitled to gratuity as in

the case of other regular employees. The Government has not

exempted the corporation by invoking section 5 of the Payment

of Gratuity Act, 1972 (for short, ‘the Gratuity Act’). Therefore,

it is a duty cast upon them to pay the gratuity under Rule 76 to

the petitioners. The payment of gratuity is a statutory obligation

and need not be on an application. Section 7(2) of the Gratuity

Act casts a duty on the employer to pay the gratuity

immediately after the superannuation of the employee.

6. A counter affidavit is filed in W.P.(C) No.37503 of

2022, and it is adopted in all the cases. The main contention

raised is that the petitioners are retired Abkari workers, and they

were absorbed into the service of the corporation in view of the

policy decision taken by the Government. The Service Rules

of the Corporation came into force on 7.1.1986. There is no

sanctioned post, by the name of Abkari worker, in the

2024/KER/25533

12

WPC 36325, 35649 and 37503/22

Corporation. The regular employees of the Corporation are

working under sanctioned posts and are covered under the

Gratuity Act as provided under Rule 76 of the Service

Rules. The KAWWF Act has been enacted to provide social

security to the Abkari workers. As per Section 3 of the

KAWWF Act, the fund has to be utilised to pay gratuity,

pension, provident fund, family pension etc. As per the Kerala

Abkari Workers’ Welfare Fund Scheme, 1990 (for short, ‘the

Scheme’), an eligible employee is entitled to gratuity benefits

under clause 36 of the Scheme. The petitioners are members of

the Abkari Workers Welfare Fund. The corporation is bound to

remit amount collected towards the contribution from the

workers as well as contribution of the employer to the Welfare

Fund Board.

7. A settlement was arrived between corporation and

various unions representing the Abkari workers on

28.10.2002. As per the settlement, it was agreed that the

2024/KER/25533

13

WPC 36325, 35649 and 37503/22

corporation shall make statutory contributions to get the

provident fund and gratuity to the members. The Abkari

workers can continue up to the age of 60 when the regular

employees have to retire at the age of 58 years. The gratuity of

the Abkari workers, who are members of the Board, is enhanced

from 5% to 7% as per notification dated 6.1.2023, and

employees’ contribution was enhanced from 10% to 11.5%, and

the employer’s contribution was enhanced to 5% to 17% as per

Ext.R1(c) notification. The provisions of the Gratuity Act are

not applicable to the members working in the corporation. Their

gratuity and allied benefits are governed by the provisions

contained in the KAWWF Act. Being members of the Board,

they are entitled to continue their service upto 60 years. The

corporation has a duty to enroll all the Abkari workers in the

Board, in view of the judgment of apex court in Special Leave

Appeal (Civil) No.10923 of 2009 and connected cases.

2024/KER/25533

14

WPC 36325, 35649 and 37503/22

8. The counsel for the petitioners relied on judgments in

Allahabad Bank v. All India Allahabad Bank Retired Emps.

Assn. [2010 (1) SCC L&S) 561], Manoj K.R v. Kerala State

Beverages Corporation [2006 KHC 1474] and Kerala State

Co-operative Bank Ltd., Thiruvananthapuram v. Court of

Deputy Labour [2021 (1) KHC 239]. All these decisions deal

with the payment of gratuity to employees who are not getting

gratuity under any other Act. The dictum laid down only directs

that the employer must disburse gratuity as it is a statutory

obligation. When the Abkari workers are paid gratuity out of

the Welfare Fund under the KAWWF Act, they will not come

under the definition of ‘employees’ under the Gratuity

Act. Therefore, the decisions are not applicable to the facts of

these cases.

9. Heard Shri.Deepu Thankan for the petitioners, the

standing counsel, Sri T Naveen for respondents Nos.1 and 2,

Kerala State Beverages Corporation Ltd, and standing counsel,

2024/KER/25533

15

WPC 36325, 35649 and 37503/22

Shri S Krishnamoorthy for the 3rd respondent, Kerala Abkari

Workers Welfare Fund Board.

10. Section 2(e) of the Gratuity Act defines an employee

as:

“any person (other than an apprentice), who is

employed for wages whether the terms of such

employment are express or implied, in any kind of work,

manual or otherwise, in or in connection with the work

of a factory, mine, oilfield, plantation, port, railway

company, shop or other establishment, to which the Act

applies, but does not include any such person who holds

a post under the Central Government or a State

Government and is governed by any other Act or by any

rules providing for payment of gratuity.”

Section 3 of the Kerala Abkari Workers’ Welfare Fund Act,

1989 defines Abkari Workers’ Welfare Fund. Sub-section

2 stipulates that the amounts shall be credited to the

Fund. Sub-section 4 directs how the fund can be utilized. Sub-

section (4)(c) deals with payment of gratuity. So, the amount

in the Welfare Fund is to be used to pay gratuity to any Abkari

2024/KER/25533

16

WPC 36325, 35649 and 37503/22

worker. Section 4 of the Act deals with Contributions to the

Fund. Clause (1) of Section 4 reads as follows:

“ 4. Contribution to the fund.- (1) The

contribution which shall be paid by employer to the Fund

shall be ten per cent of the wages for the time being

payable to each of the abkari worker and the abkari

workers contribution shall be equal to the contribution

payable by the employer in respect of him in the manner

specified in the scheme.”

(2) The employer shall, in addition to the

contribution payable under sub- section (1) contribute

to the Fund as gratuity an amount equal to five per cent

of the wages for the time being payable to each of the

abkari worker;

From Section 4(2) of the Act, it can be seen that in addition to

the contribution payable as (1), the amount equal to 5% of the

wages is to be contributed by the employer towards the Fund

as gratuity. For the implementation of Section 3 of the Act, a

scheme named Kerala Abkari Workers’ Welfare Fund

Scheme, 1990 is brought into force. Clause 24 of the scheme

prescribes that a worker who works continuously for 3 months

is eligible to be enrolled as a member of the scheme. Clause

2024/KER/25533

17

WPC 36325, 35649 and 37503/22

36 of Chapter 8 of the scheme deals with how the gratuity has

to be calculated, and clause 37 deals with when the payment

has to be made. So, a separate procedure is prescribed under

clauses Nos.36 and 37 of Chapter 8 of the scheme for

payment of gratuity. The gratuity is paid out of the

Fund made by the contribution of the Abkari workers and the

employer more specifically under clause 4(2) of the KAWWF

Act.

11. A reading of the definition of the word ‘employee’

under the Payment of Gratuity Act would make it clear that a

person who is governed by any other Act or Rules for providing

payment of gratuity, the said person will not come under the

definition of employee under the payment of Gratuity Act.

12. It is not in dispute that the petitioners have received

an amount of gratuity and provident funds from the

Scheme. Therefore, they are not entitled to claim gratuity under

the Gratuity Act as they do not come under the definition of

2024/KER/25533

18

WPC 36325, 35649 and 37503/22

‘employee’ under the Gratuity Act. The regular employee

working in the sanctioned posts of the Corporation alone will

come under the definition of the employees under the Gratuity

Act, and they are only entitled to claim gratuity under 76 of the

Service Rules for the employees of Kerala State Beverages

Corporation Ltd. The Abkari workers and the Corporation

regular employees are considered in two different classes.

13. A question arose before this court as to whether the

regular employees of the Corporation can be equated with the

Abkari workers regarding the age of retirement, as the age of

retirement of the Abkari workers was 60, whereas that of the

regular employees was 58. A Division Bench of this court in

Managing Director, Kerala State Beverages Corporation v.

P.B. Gopi [2015 SCC online Ker. 39679], after elaborate

consideration of the issue, held that according to clauses 35 and

2(m) of the Scheme, the Abkari workers are entitled to continue

till the age of 60 years as they continue to govern by statutory

2024/KER/25533

19

WPC 36325, 35649 and 37503/22

Scheme as per the government orders issued as well as the

settlement entered into between the Corporation and the

unions. It was also held that the classification between the

regular employees of the corporation and the Abkari workers in

so far as the age of retirement is concerned, it is a valid

classification which has a rationale nexus with the objects

sought to be achieved. Therefore, the Abkari workers, like the

petitioners, form a different class and cannot be equated with

the regular employees of the corporation who are working in

the sanctioned posts. Only the regular employees of the

Corporation are bound by Rule 76 of the Service Rules and

thereby claim gratuity under the Gratuity Act. As far as the

Abkari workers are concerned, the KAWWF Act and the

Scheme provide for payment of gratuity to them based on the

employer’s contribution and the employee under Sections 4(1)

and (2) of the Act. Moreover, as per Ext.R1(b), a bilateral

agreement was entered into between the corporation and

2024/KER/25533

20

WPC 36325, 35649 and 37503/22

various trade unions. As per clause iii(b) of the terms of the

Settlement, it was agreed that benefits like Provident Fund,

gratuity, etc., will be covered under the Kerala Abkari Workers

Welfare Fund Board, and the board shall be making the

statutory contribution along with the contribution of the worker

to the Board. Therefore, it is held that the petitioners can only

claim gratuity under the Abkari Workers Welfare Fund

Act and the Scheme and not under the Gratuity Act. The

petitioners claim that they are entitled to gratuity under

the Gratuity Act also, in addition to the amounts disbursed as

gratuity under the KAWWF Act, is only to be rejected.

14. Another contention raised is that since the amount paid

as a gratuity from Abkari Workers Welfare Fund is based on

the contribution made by the employee, it cannot be termed as

gratuity, and it is just like an amount of provident fund. As far

as the gratuity under the Gratuity Act is concerned, it is the

statutory liability of the employer to pay gratuity to all the

2024/KER/25533

21

WPC 36325, 35649 and 37503/22

employees on termination of his employment either on

superannuation on retirement on resignation or death or

disabled due to accident or disease unless the establishment

is exempted under the section 5 of the Act. As discussed

earlier, when the Abkari workers form a separate class of

workers, and the regular employees are separate ones, the

Abkari workers who are getting gratuity from the Welfare Fund

cannot claim gratuity under the Gratuity Act, over and above

the amounts received under the KAWWF Act.

15. If the argument of the petitioners is accepted, it will

amount to double payment of gratuity, one under the Welfare

Fund and the other under the Gratuity Act, which will be

unlawful enrichment. Therefore, these Writ Petitions fail and

are dismissed.

Sd/- BASANT BALAJI,

JUDGE

dl/

2024/KER/25533

22

WPC 36325, 35649 and 37503/22

APPENDIX OF WP(C) 35649/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE CHART SHOWING THE DETAILS OF THE

EMPLOYMENT OF THE PETITIONERS PREPARED FOR THE

PURPOSE OF THIS CASE.

Exhibit P2 RUE COPY OF THE LETTER ISSUED TO THE FIRST

PETITIONER BY THE FIRST RESPONDENT CORPORATION AT

THE TIME OF HIS RETIREMENT DATED 13/04/2022.

Exhibit P3 TRUE COPY OF THE LETTER ISSUED BY THE THIRD

RESPONDENT I TO PETITIONER NO. 63 DATED 02/12/2019.

2024/KER/25533

23

WPC 36325, 35649 and 37503/22

APPENDIX OF WP(C) 37503/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE CHART SHOWING THE DETAILS OF THE

EMPLOYMENT OF THE PETITIONERS PREPARED FOR THE

PURPOSE OF THIS CASE.

Exhibit P2 TRUE COPY OF THE OFFICE MEMO ISSUED TO THE FIRST

PETITIONER BY THE FIRST RESPONDENT CORPORATION AT

THE TIME OF HIS RETIREMENT DATED 04/10/2014.

RESPONDENT EXHIBITS

Ext.R1(a) True copy of the Order, G.O.(MS) No. 13/2002/TD

dated 18-2-2022 issued by the Government.

Ext.R1(b) True copy of the Settlement dated 28 -10-2002

arrived at between the Beverages Corporation and

various Unions representing the abkari workers.

Ext.R1(c) True copy of the Notification No.

18/Leg.C2/2022/Law dated 6 -1-2023 issued by the

Government.

Ext.R1(d) True copy of the Judgment dated 29-1-2009 in Writ

Appeal No. 2473/2008 and connected cases of this

Honourable Court.

Ext.R1(e) True copy of the Order of the Honourable Supreme

Court in Special Leave to Appeal (Civil) No.

10923/2009 and connected cases dated 27 -7-2009.

Ext.R1(f) True copy of the Order, G.O.(MS) No. 13/2021/TD

dated 12-2-2021 along with the staff pattern

(Annexure-I) issued by the Government.

2024/KER/25533

24

WPC 36325, 35649 and 37503/22

APPENDIX OF WP(C) 36325/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE CHART SHOWING THE DETAILS OF THE

EMPLOYMENT OF THE PETITIONERS PREPARED FOR THE

PURPOSE OF THIS CASE.

Exhibit P2 TRUE COPY OF THE OFFICE MEMO ISSUED TO THE ELEVENTH

PETITIONER BY THE FIRST RESPONDENT CORPORATION AT

THE TIME OF HIS RETIREMENT DATED 09/02/2016.

2024/KER/25533