Writ Petition No.4575 of 2008,Writ Petition No.4576 to Writ Petition No.4587 of 2008,Writ Petition No.4589 to Writ Petition No.4591 of 2008

17th August, 2009

Petitioner Counsel: Mr. D. A. SHINDE
Respondent Counsel: Mr. U. K. PATIL,Mr. A. S. SHELKE

Cases Cited:
Metal Box Ltd. Vs. B. R. Rangari, Asstt. Commissioner of Labour, 2006(6) ALL MR 187=2006(II) CLR 572 [Para 9]
H. Gangahanume Gowda Vs. Karnataka Agro Industries Corpn. Ltd., 2003(2) ALL MR 357 (S.C.)=AIR 2003 SC 1526 [Para 9,A]

JUDGMENT

JUDGMENT :- These Writ Petitions are filed challenging the Judgment and Order dated 10/5/2006 by the Assistant Labour Commissioner and Controlling authority, Nanded under the Payment of Gratuity Act, 1972 (for short 'the Act') in Application No.4 of 2004 and Judgment and Order dated 7/8/2007 by the Dy. Commissioner of Labour and Appellate Authority under the Act in Appeal No.PGA No.15 of 2006.

2. The brief facts of the case are as under :

It is the case of the petitioners that the respondents were employees of the petitioner/Sanstha and they have retired from services on the respective dates. It is the case of the petitioner that after retirement of the respondents, the petitioners has determined the amount of gratuity and paid the same to them as retirement benefits and the respondents accepted the said amount without any protest. It is further case of the petitioners that the appellants have already fulfilled first condition in 2nd proviso of Section 7 of the Act by making admissible amount towards gratuity to the respondents.

It is further case of the petitioners that the respondents filed application for payment of gratuity to the controlling authority under the Act to the Assistant Commissioner of Labour at Nanded. The Controlling Authority under the Act i.e. Assistant Commissioner of Labour, Nanded registered the application of the Respondent no.4 and issued notice to the petitioner to appear before him and to submit his Written Statement.

The petitioners herein appeared before the Controlling Authority and filed Written Statement and affidavit.

2-A. On 10/5/2006, the respondents No.3 has passed the Judgment and Order on 10/5/2006 allowing the application of the respondents/employees. The petitioners herein filed Appeal No.PGA/15/2006 before the Respondent no.2 challenging the order passed by the Respondent No.3 dated 10/5/2006.

3. On 7/8/2007, the Respondent No.2 dismissed the Appeal filed by the petitioner. Hence this Writ Petition.

4. The learned counsel appearing for the petitioners submitted that the application which was filed by the respondents before the Controlling Authority was at belated stage and said application was filed without filing application for condonation of delay and the authority has considered the said application and directed the petitioner to pay the gratuity amount. According to learned counsel, the petitioners are in very weak financial condition and can not pay the gratuity amount as directed by the controlling authority. The learned counsel further submitted that as per the calculations of the petitioner, gratuity amount is paid to the Respondent No.4 and they were entitled only for that amount, however, the controlling authority without properly appreciating the contentions raised by the petitioner, has directed to pay amount as calculated by the respondents/employees. It is further submitted that the Government has constituted a Committee under the presidentship of Padmashree Shamrao Kadam deciding the claims regarding the pay scales and service rules, etc. of Gat Sachiv of primary co-operative societies. The Committee has submitted its report on 5/7/1989 and on that basis a Govt. Resolution dated 13/8/1989 has been issued prescribing guide lines. The said Committee has given recognition to the Government to give Rs.40/- as D.A. Per year to the Gat Sachiv.

The learned counsel further submitted that the petitioner/society is functioning as per the directions of the Maharashtra State Co-operative Caderisation Society and said society has issued guide lines regarding giving sanction to the payment of gratuity to the retired Secretaries on 9/1/1995 and according to Govt. Resolution dated 13/10/1989, the D.A. Of Rs.40/- and basic pay of employees should be calculated for payment of gratuity to the retired employees. The learned counsel further submitted that the petitioner is not disputing the entitlement of the Respondent No.4 for gratuity but what is disputed is amount for which the respondents are entitled. The learned counsel invited my attention to the grounds in the petition, the pleadings therein, annexures to the petition and submitted that the orders impugned in the petition deserves to be set aside.

5. The learned Counsel appearing for the respondents raised preliminary objection to adjudicate of this matter on merits in view of the fact that Sub-Section 7 of Section 7 of the Act mandates that whenever Appeal is filed challenging the order of the controlling authority, the entire amount with interest as directed by the authority required to be deposited and to that effect the appellant is required to produce the certificate of the controlling authority that the appellant has deposited with him amount equal to the amount of gratuity required to be deposited under Sub-Section 4 or deposits with the appellant authority such amount. The learned counsel, therefore, submitted that since the petitioners, who are the original appellants have failed to deposit the amount in view of 2nd proviso to sub-Section (7) of Section 7, no Appeal by an employer can be admitted and, therefore, the appellate authority rightly refused to register the Appeal and there was no adjudication of the Appeal on merits and, therefore, there is no any impugned order passed by the appellate authority on merits challenged before this Court. According to learned counsel, in Writ jurisdiction when the order assailed is not adjudicated on merits, nothing required to be decided and, therefore, Writ Petition deserves to be dismissed summarily. The learned counsel further submitted that on account of various documents submitted by the group secretaries and their association, the Govt. referred the dispute to the Industrial Tribunal by Reference (IT) No.427 of 1975. The issues regarding the fixation of wages and further service benefits such as D.A., Bonus, promotion was extensively considered and decided by the Industrial Tribunal, Pune by Award dated 23/11/1998. The petitioner Society has accepted the Award dated 23/11/1998 and agreed to pay the amount of gratuity to the retired Secretaries as per the order of the Court.

6. It is further argued that the petitioner - Society fixed the pay scale of group secretaries on the basis of the Award passed by the Industrial Tribunal, Pune. The petitioner Society has paid gratuity to number of employees after calculating the last pay and D.A. on the basis of the Award passed by the Industrial Tribunal, Pune. According to learned counsel, the Respondent No.4 was not paid the amount of gratuity on the basis of the Award dated 23/11/1998. They filed application to the controlling authority for the payment of gratuity and interest. The controlling authority after deducting the amount received by the employees, directed to pay amount as mentioned in column 9 of annexure "A" along with simple interest @ 6.25% within the period of 90 days from the date of receipt of Order. According to the learned counsel, the Writ Petition filed by the petitioner is not tenable. The Appeal filed by the petitioner was dismissed on the ground of fulfillment of the provisions under Section 7(7), which is mandatory and condition precedent for registration of the Appeal. The learned counsel further submitted that even as on today, the amount is not disputed by the petitioners and, therefore, allowing the petitioners to contest the matter on merit, would amount to by-pass and mandatory requirement of deposit of amount.

Learned counsel further argued that the amount of gratuity is required to be paid on the basis of the last drawn salary plus D.A. Calculating as per the Award dated 23/11/1998, which was accepted and implemented by the petitioner Society.

7. Learned counsel invited my attention to the fact that the Appeal filed by the petitioner before the Appellate authority was time barred. The Judgment and Order of the controlling authority is dated 10/5/2006 and the Appeals were preferred on 12/9/2006 without application for condonation of delay. The learned counsel further submitted that in view of Section 4(5) of the Act, a right of an employee to receive better terms of gratuity under any Award. Therefore, the right of the respondents to make the gratuity on the basis of Award of Industrial Tribunal, is just, legal and proper. Learned counsel further submitted that as per Section 8 of the Act, after issuance of revenue record and recovery certificate, the Collector shall recover the amount of gratuity together with compound interest thereon, at such rate as the Central Government may by notification specify from the date of expiry of the prescribed time. The Central Govt. specify the 15% interest per annum as the rate of compound interest, recoverable by the Collector along with amount of gratuity and payable to the person entitled thereof. Learned counsel, therefore, would submit that the Writ Petitions are devoid of any merit and same deserves to be dismissed.

8. I have heard learned counsel appearing for the petitioner, learned A.G.P. for the State and learned counsel for Respondent No.4 and I am of the considered view that the Writ Petitions deserve to be dismissed.

The orders impugned in these petitions are the orders passed by the controlling authority, Nanded under the Act in Application No.4 of 2004 and Order dated 7/8/2007 passed by the Dy. Commissioner of Labour and appellate authority under the Act in Appeal No.PGA No.15 of 2006. In fact, the Order of the controlling authority dated 10/5/2006 was the subject matter before the appellate authority and, therefore, the Order of the Controlling authority in substance has merged in the Order passed by the appellate authority on 7/8/2007.

Perusal of the Judgment and Order passed by the controlling authority/Assistant Labour Commissioner, Nanded under the Act would show that the concerned authority has passed reasoned order keeping in mind the Judgment and Order dated 23/11/1998 passed by the Industrial Tribunal, Pune. The controlling authority has gone into exercise of the calculation of the gratuity amount after hearing respective parties and then the authority has arrived to the conclusion that the original applicants/Respondent No.4 herein are eligible for payment of gratuity amount, mentioned in the annexure 'A' and the petitioner was directed to pay gratuity amount mentioned in the annexure 'A' and further petitioner was directed to pay interest on said amount @ 6.25 % (simple interest).

The order of the controlling authority was the subject matter before the appellate authority. The appellate authority observed that the mandatory provision to deposit the gratuity amount as directed by the authority before filing Appeal, is not fulfilled by the petitioner herein. It appears from the perusal of the Judgment of the appellate authority that the authority has considered number of judgments and after perusal of the relevant record, reached to the definite conclusion that the mandate of 2nd proviso to sub-Section (7) of Section 7 of the Act indicates that -

"No appeal by an employer shall be admitted unless at the time of preferring Appeal, the appellants either produces a certificate of the controlling authority to the effect that the appellant has deposited with him the amount equal to the amount of gratuity required to be deposited under Sub-Section (4) or deposits with the appellate authority such amount."

Therefore, the appellate authority dismissed Appeal holding that since the condition precedent set out in 2nd proviso to Sub-Section (7) of Section 7 of the Payment of Gratuity Act, 1972 is not satisfied by the employer petitioner.

9. In substance, the order which is under challenge in these Writ Petitions, is not the order which is passed on merits but then the appellate authority has refused to entertain the appeal by dismissing the same for non compliance of Sub-Section (7) of Section 7 of the Act. At this juncture, it would be relevant to refer to the reported Judgment of this Court in case of Metal Box Ltd. Vs. B. R. Rangari, Asstt. Commissioner of Labour and Ors. Reported in 2006(II) CLR 572 : [2006(6) ALL MR 187], in which this Court has taken a view that the provisions of Section 5 of the Limitation Act are not applicable in case the payment is ordered U/s.7(7) of the Act has not been deposited at the time of preferring Appeal and the appellate authority is right in holding that the appeal was barred by limitation. This Court has interpreted second proviso to Section 7 in paragraph 17 of the said Judgment. This Court has observed that -

"If the appeal can not be even registered without depositing the amount, the question of the said appeal being filed and the period of limitation stops running can not and does not arise."

The plain reading of second proviso to Sub-Section (7) of Section 7 of the Act would clearly show that the Appeal filed by the employer can not be admitted unless employer produces a certificate of the controlling authority to the effect that the appellant has deposited the amount equal to the amount of gratuity required to be deposited under Sub-Section (4) of Section 7 of the Act. In the instant case, it is not in dispute that the petitioners did not deposit the amount which was required to be deposited under second proviso to sub-Section (7) of Section 7 of the Act and, therefore, there was no hearing of the appeal on merits. Hence, in the present Writ petitions, there is no order on merits by the appellate authority and, therefore, in my considered view, no interference is called for under Writ jurisdiction.

9-A. Even on merits of the case, the petitioner has accepted the Award dated 23/11/1998 passed by the Industrial Tribunal in Reference (IT) No.427 of 1975 and paid gratuity amount to other similarly situated persons and, therefore, it is not open for the employer/petitioner to contend that the Order passed by the controlling authority relying on said Award, is not correct. It is not in dispute that Respondent No.4 is entitled for the gratuity amount, but the controversy which is raised by the petitioner through out is about arithmetic calculations of the amount and, therefore, such controversy raising disputed question of facts, can not be gone into in writ jurisdiction.

Admittedly, even as on today, the petitioners have not deposited the amount towards gratuity and, therefore, I am not inclined to interfere in the impugned Judgment and order under writ jurisdiction.

So far amount of interest to be paid on delayed payment of gratuity, the Supreme Court in case of H. Gangahanume Gowda Vs. Karnataka Agro Industries Corpn. Ltd. Reported in AIR 2003 SUPREME COURT 1526 : [2003(2) ALL MR 357], has held -

"Payment of gratuity with or without interest, as the case may be does not lie in the domain of discretion but it is a statutory compulsion. Specific benefits expressly given in a social beneficial legislation can not be ordinarily denied. Employees on retirement have valuable rights to get gratuity and any culpable delay in payment of gratuity must be visited with the penalty of payment of interest."

10. Viewed from any angle, the Judgment and Order passed by the controlling authority and order of the appellate authority dismissing the appeal of the petitioners can not be faulted and same is perfectly justified in law. Hence, no interference is called for. The Writ Petitions are devoid of any merits and same are dismissed. The Civil Applications pending in all these Writ Petitions stand disposed of in view of disposal of main Writ Petitions.

Petitions dismissed.