Allowed

The Secretary v. Appellate Authority

Madras HC20 Jul 2021WP/21801/2005

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Judicature at Madras set aside the Appellate Authority's order under the Payment of Gratuity Act. The Court held that the Authority perfunctorily disregarded the employee's admission that he did not render services during a specific period. Consequently, the employee must refund the excess gratuity amount to the petitioner employer.

What did the court decide?

The writ petition was allowed. The order dated 29.11.2004 by the Appellate Authority was set aside. The Managing Authority was directed to return the balance gratuity amount plus interest to the petit

The Secretary Vs Appellate Authority — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 20.07.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

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W.P.No.21801 of 2005 and

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WMP.No.23750 of 2005 and WVMP.No.35 of 2010

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The Secretary,

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Salem District Sarvodaya Singh No.7, Gandhi Nagar, Athur, Salem.

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... Petitioner

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-vs-

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Appellate Authority

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under Payment of Gratuity Act (Joint Commissioner

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of Labour),

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Coimbatore.

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Controlling Authority, under Payment of Gratuity Act (Assistant Commissioner of Labour) Salem-7.

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S.Anbazhagan

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... Respondents

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Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari to call for the records in P.G.Appeal No.7 of 2003 on the file of the Appellate Authority under the Payment of Gratuity Act (Joint Commissioner of Labour) Coimbatore, the 1st respondent and quash the order dated 29.11.2004 passed therein.

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For Petitioner : Mr.M.R.Raghavan

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For Respondents: Mr.K.V.Shanmuganathan (R3) Mr.L.S.M.Hasan Fizal (1 and 2)

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The Petitioner has come forward with the present Writ Petition challenging the order dated 29.11.2004, in P.G.Appeal No.7 of 2003 on the file of the Appellate Authority under the Payment of Gratuity Act (Joint Commissioner of Labour)

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

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Coimbatore, by which the Appellate Authority reversed the order of the controlling authority, by directing the petitioner to remit a sum of Rs.35,349.65/- to the third respondent/workman under the Payment of Gratuity Act, 1972.

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Learned counsel for the petitioner / Management submitted that the employee / third respondent joined the services of the Management on 01.07.1979 and worked continuously till 09.03.1987. Though the employee was transferred subsequently on 10.03.1997 from Attur to Coimbatore, he had not chosen to report for work from 16.03.1987 to 01.04.1992 and therefore, for the said period, he was not entitled to gratuity due to temporary cessation of work. He further submitted that on humanitarian ground, the employee was given employment on 02.04.1992 and in entirety, the employee had rendered 14 years of service and the Controlling Authority had rightly observed that the gratuity amount payable to the employee is only Rs.393/-. He also submitted that the Appellate Authority, to the contrary, observed that there was no order by the Management to the effect that the period between 16.03.1987 and 01.04.1992 cannot be treated as one of continued services. It was held by referring to the definition of “Continuous Service” under Section 2A(1) of the Payment of Gratuity Act that the entire services, including the period while the employee had not attended the duty, need to be taken into account, which is erroneous in the eye of law.

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Learned counsel for the employee / 3^rd respondent contended that the Management had not filed any evidence in proof of cessation for the period in question and the refusal on the part of the Management in not counting those days for payment of gratuity and treating as a continuous service, is against the provisions of the Act. Hence, the order of the Appellate Authority does not require any interference by this Court.

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Heard both sides. Perused the records.

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Admittedly, there is a dispute over the period in question and therefore, the question of interpretation to the definition of 'Continuous service' will not arise at all. In this case, the employee has not rendered services and he has not claimed any benefits and the said fact has been admitted by the employee himself in the evidence, which is extracted hereunder:

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"nkYk;. KDjhuh; 13/05/2002e; njjpa Fwf;Ftprhuizapy;:

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"17.02.92y ; ehd; eph;thfj;jpw;F fojk; vGjp. gzpapy; mkh;j;jr;brhy;yp nfl;Oh;fsh vd;why; Mk; (vf;!;/Mh;/4) 1.4.92y; xU fojk; vGjpapUf;fpwPh;fsh vd;why; Mk;/ (vf;!;/Mh;/5 ) ,

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

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e;j fojj;jpy;. ntW ve;jj;bjhifa[k; nfl;ftpy;iy vd;W“ ” vGjp cs;sPh;fsh vd;why; Mk; vGjpa[s;nsd;“ ”/ 2.4.92y; ,e;j fojk; bfhLj;J gzpapy; nrh;e;jPh;fsh vd;why; Mk; (vf;!;/Mh;/6) 10.3.87 Kjy; 1.4.92 tiu ehd; eph;thfj;jpy; gzpg [hpatpy;iy vd;why; rhp/ ? vd;Wk; Twpa[s;shh;/” "

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It is not in dispute that he was not successful before the Controlling Authority. Even though, the period in question cannot be treated as break in service, the same needs to be excluded for the purpose of continuous services, pursuant to the admission by the employee that he had not actually worked on any date during the said period. Even assuming that he worked in the Management, as per rules, unless the employee has rendered services for the actual number of days, as contemplated under the Rules, not due to his fault, he will not be entitled to gratuity.

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In the case on hand, the employee has not rendered services and given up the benefits for the aforesaid period and therefore the fault is not on the part of the Management. Therefore, the order of the Appellate authority in granting amount is, not only perverse, but also illegal.

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It is represented that the Management had already deposited the entire amount ordered by the Appellate Authority and the employee has also withdrawn 50% of the amount, pursuant to the interim order of this Court. Therefore, this Court directs that the balance amount together with interest, if any lying in the credit of P.G.Appeal No.7 of 2003 shall be returned to the Management and the employee will have to refund the amount over and above a sum of Rs.393/- that has been determined by the Controlling Authority and in case the employee fails to refund the amount, he is bound to pay interest @ 10% per annum.

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9.The Appellate Authority has passed an order in a perfunctory manner on the face of the employees's admission, which needs to to be interfered with.

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In the result, this Writ Petition is allowed and the order passed by the Appellate Authority dated 29.11.2004 is hereby set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.

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Assistant Registrar(CO)

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//True Copy//

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Sub Assistant Registrar

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

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arr To:

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The Appellate Authority under Payment of Gratuity Act (Joint Commissioner of Labour), Coimbatore.

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Controlling Authority, under Payment of Gratuity Act (Assistant Commissioner of Labour) Salem-7.

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+1cc to Mr.M.R.Raghavan, Advocate Sr.34898 +1cc to the Government Pleader Sr.35312

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W.P.No.21801 of 2005

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cp[co] srg 17/11/2021

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

The Secretary v. Appellate Authority

Case brief

What is this about?

What did the court decide?

The Secretary v. Appellate Authority

Case brief

What is this about?

What did the court decide?

What the court decided

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