Dismissed

The Correspondent v. the Assistant Commissioner

Madras HC7 Feb 2013WP/3023/2013

Case brief

AI extract

What is this about?

Private college management challenged an order condoning delay in filing a gratuity application by teachers. The Court held that the main Act does not prescribe limitation and any rule making power for limitation is ultra vires, but dismissed the writ petition as it did not limit its decision regarding the maintainability of the claim.

What did the court decide?

The Writ Petition stands dismissed. The connected Miscellaneous Petitions are closed. No costs.

The Correspondent Vs the Assistant Commissioner — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 07.02.2013

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CORAM:

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THE HON'BLE MR.JUSTICE K.CHANDRU

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W.P.Nos.3023 to 3029 of 2013

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& M.P.Nos.1 of 2013

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The Correspondent Kongu Arts & Science College Nanjanapuram, Kathirampatti P.O Erode. .. Petitioner in all Writ Petitions

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Vs. The Assistant Commissioner of Labour Controlling Authority under the Payment of Gratuity Act Office of the Deputy Commissioner of Labour Salem .. 1^st respondent in all Writ Petitions R.Balasubramanian .. 2^nd Respondent in W.P.3023/2013 K.Ramachandran .. 2^nd Respondent in W.P.3024/2013 S.Kalyani .. 2^nd Respondent in W.P.3025/2013 O.T.Poongodi .. 2^nd Respondent in W.P.3026/2013 S.Karpagam Chinnammal .. 2^nd Respondent in W.P.3027/2013 S.Sivamani .. 2^nd Respondent in W.P.3028/2013 M.Bhuvaneswari .. 2^nd Respondent in W.P.3029/2013 Prayer in all Writ Petitions : Petitions under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to the impugned order dated 3.12.2012 made in PG Case I.A.Nos.39, 47, 42, 43, 44, 45 and 46 of 2012 on the file of the 1st respondent, quash the same. For Petitioner in all Writ Petitions :: Mr.N.Manokaran

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https://hcservices.ecourts.gov.in/hcservices/

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O R D E R

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In these Writ Petitions, the petitioner is a private College Management. Aggrieved by the order of the 1st respondent Controlling Authority under the Payment of Gratuity Act, 1972 in I.A.Nos.39, 47, 42, 43, 44, 45 and 46 of 2012 in unnumbered P.G.Cases of 2012, dated 3.12.2012, the petitioner has filed these Writ Petitions.

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The contesting 2nd respondents were all Teachers employed by the College and they left College on account of resignation in the year 2008 onwards. Taking advantage of the Notification issued by the Central Government bring the educational Institutions within the purview of Payment of Gratuity Act, the 2nd respondent filed a claim to pay gratuity from the management and thereafter approached the authority with Gratuity Application in terms of the Payment of Gratuity Act.

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Since there was delay, the contesting respondents filed applications for condonation of delay. These applications were taken on file as I.A.Nos.39, 47, 42, 43, 44, 45 and 46 of 2012. After notice to the petitioner management, the delay was condoned on the ground that there was sufficient cause.

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The management resisted the condonation of delay on the ground that the application for gratuity ought to have been presented within 30 days in terms of Rule 7(1) of the Tamil Nadu Payment of Gratuity Rules and inasmuch as no such representation is filed and the long delay in filing the application ought not to have been condoned. The reason adduced by the contesting respondents will not constitute a sufficient cause.

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In the affidavit filed in support of the application (though it is strongly contended that no such affidavit was filed or served on the management), it is stated that the contesting respondents were under the impression that the management will not settle the gratuity and thereafter they sent a letter a letter dated 14.9.2011 as well as reminder and subsequently sent Form-N to the Joint Commissioner erroneously and finally came before this authority. Though the learned counsel for the petitioner refuses the filing of affidavit, perusal of the order will clearly show that the authority referred to the affidavit having been filed by the contesting respondents. A ground has been raised. But, in the sense the authority has recorded that the affidavit was accompanied along with the petition, this Court is not inclined to accept the stand of the management.

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The authority after hearing both sides came to the conclusion that the Notification covering educational institution was made by the Central Government on 3.4.1997 and subsequently the Act also has been amended by Amending Act 2009 by bringing private educational institution in which ten or more persons are employed, and the delay is excusable.

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This Court is not inclined to interfere with the order merely condoning delay. As far as the question as to whether the Act itself provides for limitation for filing the application is concerned, Section 4 read with Section 7 is silent on the said aspect. On the other hand Section 7(1) merely enables that a person should send a written application to the employer and under Section 7(2), the obligation is on the employer to pay gratuity. Whether the application is received under Section 7(1) or not, Section 7(3) obliges the employer to pay gratuity from the date it becomes payable. It is only in case of dispute under Section 7(4), the aggrieved person will have to approach the authority for claiming gratuity. While Section 7(7) prescribes a limitation for filing the appeal against the Controlling Authority, Section 7(4) do not talk about any limitation and under Section 7, no power has also been delegated to the Rule Making authorities to frame rule regarding limitation.

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In the absence of any power of delegation of the principal legislation in the case of rule making power, the State cannot make any limitation as it will amount to substantial legislative power, which is not conferred on them. It is only under the Rule making power under Rule 7(1), the State Government has prescribed the limitation of 30 days from the date on which gratuity is payable and within 30 days, the application should be made. Under Rule 10, if the employer refuses to accept the nomination or entertain the application within 90 days, then the claimant/employee may approach the authority.

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This Court has already held that such a rule making power is ultravires of the main Act. Even otherwise, in the present case, the 1st respondent being the Controlling Authority in his discretion exercised the power to condone the delay after holding that there was sufficient cause. This Court sitting under Article 226 is not inclined to entertain such a Writ Petition only on the interim application to condone the delay. Hence, the Writ Petition stands dismissed.

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However, Mr.N.Manoharan, learned counsel for the petitioner management states that the Teachers are not entitled to be covered by the Act. If that is so, it is for the petitioner management to object in the Gratuity Application and contest the case in the manner known to law. It is suffice to state that for receiving application, this Court has not dealt with the maintainability of the application filed by the contesting respondent. No costs. The connected Miscellaneous Petitions are closed.

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Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To The Assistant Commissioner of Labour Controlling Authority under the Payment of Gratuity Act Office of the Deputy Commissioner of Labour Salem. +1 cc to Government Pleader SR.No.7512. +7 cc to Mr.N.Manokaran, Advocate, SR.No.7624 to 7626, 7629 to 7632. W.P.Nos.3023 to 3029 of 2013 MSM (CO) DVR (18/02/2013)

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The Correspondent v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

The Correspondent v. the Assistant Commissioner

Case brief

What is this about?

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