Allowed

National Textile Corporation Ltd. ( Western Region). v. Ramchandra Ballaya Samal.

Bombay HC13 Feb 2012APP/140/2012

Case brief

AI extract

What is this about?

Division Bench allowed the appeal, set aside the single judge's dismissal order, and admitted the appellant's writ petition. The Bench directed that the current petition be heard alongside a related writ petition involving the same issues of gratuity and superannuation, clarifying deposited amounts based on the Labour Court's finding on superannuation.

What did the court decide?

Impugned order of single judge set aside; Writ Petition (Lodging) No. 96 of 2012 admitted to be heard along with Writ Petition No. 2559 of 2011; directions issued regarding deposited gratuity amount.

National Textile Corporation Ltd. ( Western… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J.

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APPEAL LODGING NO. 83 OF 2012 IN

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WRIT PETITION (LODGING) NO. 96 OF 2012

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National Textile Corporation Ltd. ...Appellant/ Orig.Petitioner Versus Ramchandra Ballaya Samal ...Respondent/Orig. Respondent

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Mrs. Meena H. Doshi, advocate for the appellant. Mr. P. M. Patel, advocate for the respondent.

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CORAM : MOHIT S SHAH, C.J. & RANJIT MORE, J.

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DATED : 13th February, 2012.

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P.C.:

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This appeal is directed against the order dated 24^th January, 2012 of learned Single Judge dismissing the writ petition of the appellant – National Textile Corporation Limited (for short “NTC”) challenging the order dated 2^nd December, 2009, of the Controlling Authority, qua the gratuity payable to the respondent and the order dated 18^th November, 2011 of the Appellate Authority under the Payment of Gratuity Act, 1972.

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Since the Appellate Authority had dismissed the appeal of NTC against the order dated 2^nd December, 2009 of the Controlling Authority only on the ground of limitation and after holding that the Appellate Authority had no power to condone the delay beyond the period of 120 days, in this

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appeal, learned counsel for NTC has concentrated on the challenge to the order dated 2^nd December, 2009 of the Controlling Authority by which the Controlling Authority held that the respondent is entitled to a sum of Rs. 1,82,039/- towards the gratuity for the period from 1983 to 2007 with interest @ 10% p.a. from the date when the respondent tendered his resignation on 18^th August, 2007.

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The respondent was employed by Kohinoor Mills in 1982. NTC took over the mill in 1983. The respondent’s services were terminated on 31^st May, 1983. In the reference challenging the termination, the Labour Court, Mumbai, gave award dated 27^th May, 2003, directing the appellant to reinstate the respondent with continuity of service and with 50% back wages. The appeal against the award came to be dismissed by this Court by order dated 27^th May, 2007. Soon thereafter, the respondent tendered his resignation on 18^th August, 2007. The respondent, then, lodged his claim before the Controlling Authority for gratuity on the basis of service for the period calculated from 1983 to 18^th August, 2007.

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Before the Controlling Authority, NTC raised the contention that

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the respondent had attained the age of superannuation of 60 years on 11^th January, 1988, and, therefore, gratuity cannot be paid for the subsequent period from 12^th January, 1988, but the Controlling Authority did

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not accept the contention, on the ground that the Labour Court had already passed the order dated 27^th May, 2003, directing NTC to reinstate the present respondent with continuity of service and with 50% back wages. Since the fact about the superannuation of the present respondent was not brought to the notice of the Labour Court at the relevant time, the Controlling Authority would not allow NTC to raise that contention in the proceedings under the Payment of Gratuity Act,1972. The Controlling Authority, accordingly passed the impugned order dated 2^nd December, 2009, directing NTC to pay the gratuity amount of Rs. 1,82,039/- plus interest @ 10% p.a. from the date of resignation i.e. 18^th August, 2007 till payment.

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NTC challenged the said order before the Appellate Authority by filing an appeal on 24^th August, 2011 under Section 7(7) of the Payment of Gratuity Act, 1972 read with Rule 18 of the Payment of Gratuity Rules (Central) Rules, 1972. The Appellate Authority required the appellant-NTC to deposit the amount of gratuity payable under the order of the Controlling Authority, and the appellant deposited the amount of Rs.1,82,039/- on 2^nd November, 2011. The Appellate Authority, however, declined to admit the appeal on the ground that the appeal was filed beyond the period of limitation of 60 days and that the Appellate Authority had no jurisdiction to condone the delay for more than 120 days (60 plus 60 days).

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It is necessary to note that the Appellate Authority had, while observing that the appeal was not admitted on the ground of limitation, modified the order of the Controlling Authority and provided in its order dated 18^th November, 2011, that the present respondent was entitled to gratuity on the basis of service rendered up to 11^th January, 1988, because the present respondent had attained the age of superannuation of 60 years on 12^th January, 1988. The present respondent filed Writ Petition No.2462 of 2011, in so far as the Appellate Authority had made the aforesaid modification. The said writ petition came to be allowed by learned Single Judge by judgment dated 17^th January, 2012 and learned Single Judge setaside the modification made by the Appellate Authority, on the ground that once the appeal was found to be barred by limitation, the Appellate Authority could not have modified the order of the Controlling Authority.

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NTC, therefore, filed Writ Petition (Lodging) No. 96 of 2012 for challenging the order dated 2^nd December, 2009 of the Controlling Authority as well as the order dated 18^th November, 2011, of the Appellate Authority. Learned Single Judge held that as far as the order of the Appellate Authority is concerned, since the appeal was filed after delay of 627 days, the Appellate Authority was justified in not condoning it, as the Appellate Authority had no jurisdiction to condone the delay beyond 60 plus 60 days. As regards the challenge to the order dated 2^nd December, 2009, of the

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Controlling Authority, learned Single Judge declined to entertain the petition on the ground that the writ petition was filed after more than two years from the date of passing the impugned order by the Controlling Authority.

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The writ petition filed by NTC challenging both the orders of the Controlling Authority and the Appellate Authority has thus been dismissed by learned Single Judge by the impugned order dated 24^th January, 2012.

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Mrs. Meena Doshi, learned counsel for the appellant-NTC, submitted that the appellant had given explanation for the delay in filing the writ petition in Paras 23 and 24 of the writ petition. However, learned Single Judge has not at all considered the said explanation. It is further submitted that the respondent was employed by the Kohinoor Mills in 1982 and thereafter, NTC took over the mill in 1983. There were 15,000 employees in the mills run by NTC and that there were about 2,000 employees in Kohinoor Mills. The officers of NTC who had to contest thousands of litigations, therefore, in the reference challenging the order of termination of the respondent herein, missed the fact about the present respondent having attained the age of superannuation of 60 years on 11^th January, 1988 , but once the officers came to know about the said fact, NTC did raise this issue before the Controlling Authority. The birth date of the

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present respondent was already recorded in the service book of the concerned mill, and when that fact was brought to its notice, Controlling Authority ought to have taken the same into consideration.

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It is submitted that NTC is a public body with a large number of cases being filed against it before Labour Courts. There was some lack of co-ordination, but that should not have resulted in rejection of meritorious claim of NTC on the ground of delay when the same issue is pending examination before this Court in another writ petition filed by the same workman.

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Learned counsel for the appellant-NTC has vehemently submitted that the fact about the present respondent having attained the age of superannuation on 11^th January, 1988, was brought to the notice of the Labour Court in Application (IDA) No. 46 of 2010 under Section 33(C) (2) of the Industrial Disputes Act, 1947 for execution of the award dated 27^th May, 2003, of the and that Court has accepted the plea of NTC in the order dated 18^th April, 2011. In the said application, the Labour Court has passed the following order :

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ORDER

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Application for recovery of the legal dues is partly

allowed.

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1. The claim for period from 18/1/1982 to 11/1/1988 is

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allowed.

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1. The claim from 12/1/1988 onward is denied.

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Opponent do pay Rs.57,390/- (Rs. Fifty Seven Thousand Three Hundred Ninety Only) to applicant towards back wages.

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1. Opponent do pay Rs.6,921/- (Rs. Six Thousand Nine Hundred Twenty One Only) to applicant towards privilege leave wages.

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1. Claim of the interest is denied.

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It is submitted on behalf of NTC that when the workman challenged the said order in Writ Petition No. 2559 of 2011, learned Single Judge has admitted the writ petition on 17^th January, 2012, and therefore, Writ Petition (Lodging) No.96 of 2012 filed by NTC (raising the same contention which had been accepted by the Labour Court in the said Order dated 18^th April, 2011), ought not to have been dismissed by learned Single Judge.

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On the other hand, learned counsel for the workman has opposed the appeal and has supported the order of learned Single Judge.

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Having heard learned counsel for the parties, we find considerable substance in the submission made by learned counsel for the appellant-NTC. After the Controlling Authority passed the order dated 2^nd December, 2009, in favour of the workman, NTC challenged the same by filing an appeal before the Appellate Authority. The Appellate Authority did find substance in the challenge of NTC on merits, and therefore, modified the order of the Controlling Authority by restricting the claim of the workman for gratuity for the period only up to 11^th January, 1988, on the ground that the workman had attained the age of superannuation of 60 years on 11^th January, 1988. It was only on the ground of limitation that the Appellate Authority decided not to admit the appeal and, therefore, on that ground alone, learned Single Judge set-aside that modification. Another judicial authority- Labour Court hearing the application under Section 33(C) (2) of the Industrial Disputes Act, 1947, has also given the same finding in favour of NTC that the workman had attained the age of superannuation on 11^th January, 1988, and therefore, he was not entitled to any part of back wages for the period from 12^th January, 1988, onwards. The workman’s challenge to the said order of the Labour Court is pending before this Court by way of Writ Petition No. 2559 of 2011, which is admitted by the same learned Single Judge on 17^th January, 2012. It would have, therefore, been in fitness of things for learned Single Judge to admit Writ Petition Lodging No. 96 of 2012 of NTC wherein the same issue is raised.

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We find considerable substance in the submissions of learned counsel for the appellant-NTC. Though delay is one of the relevant grounds for not exercising writ jurisdiction, when the same issue is being examined by this Court on merits in a writ petition between the same parties, the writ petition of NTC should not have been dismissed on the ground of delay. As per the settled legal position, in such matters, the Court can mould relief appropriately by granting interest for the intervening period. We do not propose to make any further observations and all that we intend to do is set-aside the impugned order dated 24^th January, 2012 of learned Single Judge and admit Writ Petition (Lodging) No. 96 of 2012 and direct that the said writ petition shall be heard along with Writ Petition No. 2559 of 2011, filed by the respondent herein.

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Learned counsel for the respondent-workman makes a grievance that NTC has not deposited the entire amount as adjudicated by the Controlling Authority, inspite of the Division Bench order dated 20^th September, 2011, in Writ Petition No.1480 of 2011, annexed at Exhibit “G” to the petition.

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Since according to appellant-NTC, the respondent-workman had attained the age of superannuation of 60 years on 11^th January, 1988, which contention has been accepted by the Labour Court in the order dated 18^th

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April, 2011 of the Labour Court in Section 33(C) (2) application of the respondent-workman, and on that basis, NTC would presently be liable to pay the workman gratuity only for the period up to 11^th January, 1988 and not up to 2007, the question of the appellant-NTC being required to deposit any amount beyond Rs.1,82,039/- already deposited before this Court will arise only, in case, the writ petition of NTC is dismissed by the learned Single Judge. In that eventuality, the Court can always give appropriate directions while disposing of the two writ petitions and NTC would be bound to comply with all such directions within such time limit as may be stipulated by learned Single Judge.

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We make it clear that this clarification is required to be make in the present proceedings, as the Court passing order dated 20^th September, 2011 in Writ Petition No.1480 of 2011, had no occasion to consider the order dated 18^th April, 2011 of the Labour Court in favour of NTC, which is referred to in Para 11 hereinabove.

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That requires us to deal with the amount deposited by NTC before the Appellate Authority under the Payment of Gratuity Act, 1972. Out of the amount of Rs.1,82,039/- deposited by NTC, the respondentworkman shall be allowed to withdraw a sum of Rs.32,122/- as indicated in the operative order of the Appellate Authority dated 18^th November, 2011,

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with proportionate interest thereon, in case, the amount has earned interest. We are making it clear that we are permitting the respondent-workman to withdraw a sum of Rs.32,122/- as even according to NTC, that is the amount which the workman is entitled to receive by way of gratuity for the period up to 11^th January, 1988.

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In case, according to the respondent-workman, the amount of gratuity for the period up to 11^th January, 1988, with interest thereon at @10% p.a. is higher than Rs.32,122/-, it will be open to the respondentworkman to make an application before the learned Single Judge for appropriate directions for withdrawal of any further amount.

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The balance amount shall be invested in Fixed Deposit with a nationalized bank for a period of three years under the cumulative interest scheme. In case, the writ petitions are not decided by learned Single Judge in the meantime, the investment shall continue to be renewed from time to time without seeking any further orders of this Court.

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Accordingly, the appeal is allowed and the impugned order dated 24^th January, 2012 of learned Single Judge is set-aside. Writ Petition (Lodging) No. 96 of 2012 is admitted and shall be heard along with Writ Petition No.2559 of 2011.

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The appeal is accordingly allowed in the above terms and in

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terms of directions given in Paras 19 onwards.

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(CHIEF JUSTICE)

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(RANJIT MORE, J.)

National Textile Corporation Ltd. ( Western Region). v. Ramchandra Ballaya Samal.

Case brief

What is this about?

What did the court decide?

National Textile Corporation Ltd. ( Western Region). v. Ramchandra Ballaya Samal.

Case brief

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What did the court decide?

What the court decided

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