The Management Vs The Controlling Authority Under the

PRAYER : Writ Petition filed under Article 226 of Constitution of India, praying this Court to issue a Writ of Certiorari to call for the records relating to the impugned order passed by the 1^st respondent vide P.G.No. 87/2018 dated

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01.10.2021 and quash the same and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of this case and thus render justice.

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For Petitioner : Mr.Shanmugaraja Sethupathi For R1 : Mr.M.Mahaboob Athiff, Counsel for State For R2 : Mr.S.Arunachalam

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O R D E R

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Challenging the order dated 01.10.2024 passed by the first

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respondent fixing the gratuity payable to the second respondent, the present writ petition has been filed by the petitioner.

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2. The petitioner is a Primary Agricultural Cooperative Credit

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Society registered under the Tamil Nadu Cooperative Societies Act. In the petitioner Society, the second respondent was appointed as a Clerk in the year 1976. While he was working as Secretary in the petitioner Society, he committed various irregularities and acts of misconduct. Consequently, he was placed under suspension on 25.01.2007. After conducting a domestic enquiry, he was dismissed from service on 29.02.2008. Aggrieved by the same, the second respondent challenged the order of dismissal before the Appellate Authority of the Tamil

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Nadu Shops and Establishments Act in T.N.S.E.No.1 of 2010. The Appellate Authority allowed the appeal and set aside the punishment imposed by the petitioner Society by order dated 31.08.2011. Aggrieved by the said order, the petitioner Society filed a writ petition before this Court in W.P.(MD) No.2097 of 2012. The writ petition came to be dismissed on 18.12.2014. Thereafter, the second respondent filed a computation petition claiming back wages for the period from 25.01.2007 to 31.10.2011. In the computation petition, he claimed his last drawn salary as Rs.17,367/-. However, he also stated that at the time of termination, his basic salary was Rs.9,119/-. The Labour Court partly allowed the computation petition and directed the petitioner Society to pay a sum of Rs.3,92,117/- towards back wages for the period from 31.03.2011 to 31.10.2014 and the said amount has already been paid. Thereafter, the second respondent filed an application before the first respondent under the Payment of Gratuity Act, claiming gratuity for the period from 04.09.1976 to 30.10.2014, that is for 38 years of service. After adjudication, the first respondent came to the conclusion that the last drawn salary of the second respondent was Rs.24,427/- and directed the petitioner Society to pay a sum of Rs.5,35,515/- towards gratuity. Challenging the same, the present writ petition has been filed before this Court.

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The learned counsel appearing for the petitioner would submit that

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the second respondent himself, in the proceedings under Section 33-C(2) of the Industrial Disputes Act, declared that his last drawn salary at the time of termination was Rs.9,119/-. He had claimed back wages on the basis of a salary of Rs.17,367/-, whereas the Labour Court proceeded on the basis of the salary of Rs. 9,119/-. Contrary to the pleadings and the findings of the Labour Court, the first respondent fixed the last drawn salary at Rs.24,427/-, which is wholly unsustainable. Accordingly, learned counsel prayed for allowing the writ petition.

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4.Per contra, the learned counsel appearing for the second respondent would submit that, in order to establish his last drawn salary, the second respondent marked Exs. A5 and A6 before the Labour Court relating to the revision of pay granted to the employees of the Cooperative Society. The enhancement of salary was also approved by the competent authority. Based on those documents, the first respondent rightly fixed the last drawn salary at Rs.24,427/- and calculated the gratuity payable for 38 years of qualifying service. Therefore, the factual findings rendered by the Controlling Authority do not warrant interference. Accordingly, he prayed for dismissal of the writ petition.

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Heard the learned counsel appearing on either side and perused the materials available on record.

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On going through the affidavit filed by the petitioner/Society, it is categorically averred that, though an appellate remedy was available under the provisions of the Payment of Gratuity Act, the petitioner/Society did not choose to file an appeal, since it is not disputing the second respondent's entitlement to gratuity. The petitioner/Society has questioned only the quantum of gratuity payable to the second respondent. A careful perusal of Exs.A5 and A6 makes it clear that the revision of pay was granted to the employees of the Cooperative Society, including the second respondent and that the enhancement of salary was also approved by the competent authority vide G.O.No.189, dated 17.11.2009. Based on those documents, the first respondent rightly fixed the last drawn salary at Rs.24,427/- and calculated the gratuity payable for 38 years of qualifying service. Therefore, the fixation of the last drawn salary for the purpose of calculating gratuity does not warrant interference by this Court.

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