Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944 WP(C) NO. 2562 OF 2023 PETITIONER:
MUHAMMED SHAIJAL AGED 48 YEARS, S/O ISMAIL, FACE, PETTA, FEROKE, MANAGING DIRECTOR, KCK DENTAL PVT LTD, P K COMMERCIAL COMPLEX KOZHIKODE, PIN - 673032 BY ADVS.
VINOD SINGH CHERIYAN T.M.KHALID K.P.SUSMITHA RESPONDENTS:
1 THE DEPUTY LABOUR COMMISSIONER AND AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 KOZHIKODE, CIVIL STATION P.O, KOZHIKODE, PIN - 673020 2 P. SREENIVASAN NAIR AGED 70 YEARS S/O DIVAKARAN NAIR, SREEPADMAM, MADATHUMBHAGOM, MEPPAYUR PO, KOZHIKODE, PIN - 673524 SMT DEEPA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.2562 of 2023 2 JUDGMENT The 2nd respondent claiming to be an employee of the petitioner, instituted proceedings under the Payment of Gratuity Act, 1972, arraying the petitioner in his capacity as the Managing Director of KCK Agro Products Pvt.Ltd.
2.
In the course of proceedings, an application was filed by the employee seeking to implead the petitioner herein in his capacity as the proprietor of KCK Dentals Pvt. Ltd. In the application so filed, the 2nd respondent has stated that the Proprietor of KCK Dentals and the Managing Director of KCK Agro products are one and the same person. It is also stated that since the petitioner has taken a contention that the employee does not have the requisite amount of minimum service required for claiming gratuity, it has become necessary to implead the petitioner herein, though in a different capacity.
3.
The petitioner herein filed a detailed objection contending that the application for impleadment cannot be sustained.
4.
The Controlling Authority, by the impugned order, has allowed the application. While allowing the same, the Controlling Authority has noted that
W.P.(C) No.2562 of 2023 3 the 2nd respondent has asserted that he was appointed as Sales Manager in the KCK Dentals, and an account was opened in the Kozhikode Branch of South Indian Bank sometime in the year 2011. M/s KCK Agro Products Pvt. Ltd was opened in Kakkanchery in Malappuram District, and the same was shifted to Kinalur in the year 2015. In order to find whether the true entities are under the same management and to adjudicate on the said issues, the Controlling Authority took the view that Sri. Muhammed Shaijal, the Managing Director of KCK Dental, is required to be impleaded as an additional respondent.
5.
The learned counsel appearing for the petitioner submitted that in the application filed by the employee, it is mentioned that KCK Dental is a proprietorship. However, while issuing the order, the Controlling Authority has arrayed the petitioner in his capacity as the Managing Director.
6.
The records produced before this Court include the Certificate of Incorporation and the Memorandum of Association of KCK Dental Pvt.Ltd, which reveals that it is a company and the petitioner is one of the Directors. As it is a claim for gratuity, I am of the view that the order issued by the controlling authority does not warrant any interference at this stage.
Furthermore, this Court in Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala [2022 (4) KLT 90] held that writ petitions against
W.P.(C) No.2562 of 2023 4 preliminary orders of the Labour Court shall not ordinarily be entertained by this Court in proceedings under Article 226 of the Constitution of India. The observations therein will apply with all force in the instant case as well.
In that view of the matter, I do not think that the petitioner has made out any case for interference. Reserving the right of the petitioner to raise all his contentions at the final stage, this writ petition is dismissed.
Sd/- RAJA VIJAYARAGHAVAN V, JUDGE IAP
W.P.(C) No.2562 of 2023 5 APPENDIX OF WP(C) 2562/2023 PETITIONER'S EXHIBITS:
Exhibit P1 COPY OF THE APPLICATION IN GC 56/2019 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT DEPUTY LABOUR COMMISSIONER, KOZHIKODE DATED 24.7.2019 Exhibit P2 COPY OF THE STATEMENT FILED BY MANAGEMENT BEFORE THE 1ST RESPONDENT DEPUTY LABOUR COMMISSIONER DATED 28-01-2020 Exhibit P3 COPY OF THE CERTIFICATE OF INCORPORATION OF KCK AGRO PRODUCTS COMPANY ISSUED BY THE REGISTRAR OF COMPANIES, KERALA DATED 13-08-2014 ALONG WITH THE RELEVANT PAGE OF MEMORANDUM OF ASSOCIATION Exhibit P4 COPY OF THE INTERLOCUTORY APPLICATION DATED 16-03-2021 FILED BY THE 2ND RESPONDENT BEFORE THE DEPUTY LABOUR COMMISSIONER Exhibit P5 COPY OF THE ADDITIONAL STATEMENT FILED BY THE PETITIONER HEREIN ON 28-10-2021 BEFORE THE 1ST RESPONDENT IN THE GRATUITY CASE 56/2019 Exhibit P6 COPY OF THE PROOF AFFIDAVIT DATED 22-04-2022 FILED BY THE PETITIONER HEREIN IN THE CAPACITY OF MANAGING DIRECTOR, KCK AGRO PRODUCTS LTD.
Exhibit P7 COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 14-06-2022 IN IA 35/2021 IN GC NO:
56/2019 Exhibit P8 COPY OF THE CERTIFICATE OF INCORPORATION ALONG WITH MEMORANDUM OF ASSOCIATION OF KCK
W.P.(C) No.2562 of 2023 6 DENTAL PRIVATE LIMITED Exhibit P9 COPY OF THE GST CERTIFICATE OF THE KCK DENTALS, PROPRIETORSHIP Exhibit P10 COPY OF THE TRADE LICENCE ISSUED BY THE CORPORATION OF KOZHIKODE DATED 22-04-2022 RESPONDENTS' EXHIBITS:
NIL