April 3 v. ITS WORKMEN

In regard to the direction as to the gratuity scheme the argument which has been urged before us by Mr. Sen is that the problem of starting such a scheme should have been considered on an industry-cum-region basis and considerations relevant to the said basis should have been taken into account. In support of this argument he has relied upon a judgment of this Court in The Bharatkhand Textile Mfg. Go. Ltd. & Ors. v. The Textile Labour Association, Ahmedabad (' ). In that case the industrial court had no doubt dealt with a claim for gratuity made by the workmen on the industry-cum-region basis, and an attack against the validity of the said approach made by the employer in regard to the scheme was repelled by this Court. It would, however, be noticed that all that this Court decided in that case was that it was erroneous to con- tend that a gratuity scheme could never be based on industry-cum-region basis, and in support of this con- clusion several considerations wero set forth in the \1) ~196oj 3 S.C.R. 32~. I 1 S.C.R. SUPREME COURT REPORTS 713 judgment. It is clear that it is one thing to hold that the gratuity scheme can in a proper case be framed on industry-cum-region basis, and another thing to Cleaning Works say that industry-cum-region basis is the only basis In fact, in on which gratuity scheme can be framed. . a large majority of cases gratuity schemes are drafted _ . v. Its Workmen Garment t;a1endragadkar J. . 't f h th b e as1s o t e um s an b as never een sug- gested or held that such schemes are not permissible. Therefore the decision in the case of the Bharatkhand Textile Mfg. Co. Ltd.(') does not support the proposi- tion for which Mr. Sen contends. d 't h I , Mr. Sen has then criticised some of the provisions in the gratuity scheme. Clause (ii) (a) of the gratuity scheme provides that on retirement or resignation of a workman after ten years' service ten day's consoli dated wages for each year's service should be awarded as gratuity. Mr. Sen quarrels with this provision. He contends that no gratuity should be admissible under this clause until and unless fifteen years' service has ~ been put in by the employee. In support of this argu ment Mr. Sen has referred us to certain observations made by this Court in the case of The Express News papers (Private) Ltd. & Anr. v. The Union of India & Ors. (2 ). In that case the provisions of s. 5 (l)(a) (iii) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955), was struck down on the ground that its provisions violated the fundamental right guaranteed by Art. 19(1)(g). The conclusion of this Court was that the provision for gratuity made by the said clause to an employee ' who had put in three years' service imposes an un reasonable restriction on the employer's right to carry on business and is therefore liable to be struck down as unconstitutional. Dealing with that provision this Court incidentally observed that where the employee has been in continuous service of the employer for a period of more than fifteen years he would be entitled to gratuity on his resigning his post. Mr. Sen contends that this observation indicates that an employee who resigns his post cannot be entitled to any gratuity i (1) [1960] 3 S.C.R. 329. (2) [1959] S.C.R. 12, 154. 90 714 SUPREME COURT REPORTS [1962] ' ' '- ' ;. I96I v. Its Workmen . In our unless he has put in fifteen years' service. opinion, the observation on which this argument is Clea~~;;·~orks base? w~s n_ot intended to lay do"".n a rule of universal apphcat10n rn regard to all gratmty schemes, and so it cannot be made the basis of an attack against a gratuity scheme where instead of fifteen years' service Ga;endragadkar J. IO years' minimum service is prescribed to enable an employee to claim gratuity at the rate determined if he resigns after ten years' service. Therefore, we do not think that the provision of cl. (ii)( a) can be success fully challenged as being unreasonable. - L ' Clause (iv) is then challenged by Mr. Sen. This clause provides that if a workman is dismissed or dis charged for misconduct causing financial loss to the works gratuity to the extent of the loss should not be paid to the workman concerned. Mr. Sen contends that this clause is inconsistent with the principles on which gratuity claims are generally based. Gratuity which is in the nature of retiral benefit is based on long and meritorious service, and the argument is that ~ if the service of an employee is terminated on the ground of misconduct it would not be open to him on principle to claim gratuity because misconduct puts a blot on the character of his service and that disquali- fies him from any claim of gratuity. In this connection he has referred us to the definition of 'retrenchment' contained in s. 2 ( oo) of the Industrial Disputes Act. Retrenchment, according to the definition, means, inter alia, the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. Mr. Sen suggests that the retrench- . ment benefit and gratuity are payments made to the employee for a similar purpose, and if dismissal of au employee for misconduct does not entitle him to a claim for retrenchment benefit so should gratuity be denied to him in case he is dismissed for misconduct. A similar argument is based on the rules framed under the Employees' Provident Funds Act, 1952. Rule 71 of the Provident Funds Scheme Rules provides for certain deductions from the account of a member dis missed for serious and wilful misconduct. By analogy # I S.C.R. SUPREME COURT REPORTS 715 6 ' '9 Ga,mrnt Cleaning wo,ks v. Its Workmen it is urged that this rule also shows that a dismissed employee is not entitled to gratuity. We are not im- pressed by these arguments. On principle if gratuity is earned by an employee for long and meritorious service it is difficult to under- stand why the benefit thus earned by long and meri- G . d - torious service should not be available to the employee a;en ragadkar f. even though at the end of such service he may have been found guilty of misconduct which entails his dis- missal. Gratuity is not paid to the employee gratui- tously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it should necessarily be denied to him whatever may be the nature of misconduct for his dismissal. Then, as to the definition of retrenchment in the Industrial Disputes Act, we are not satisfied that gratuity and retrenchment compensation stand exactly on the same footing in regard to the effect of misconduct on the rights of workmen. The rule of the provident fund scheme shows not that the whole provident fund is denied to the employee even if he is dismissed but it merely authorises certain deductions to be made and then too the deductions thus made do not revert to the employer either. Therefore we do not think that it would be possible to accede to the general argument that in all cases where the service of an employee is terminated for misconduct gratuity should not be paid It appears that in awards which framed to him. gratuity schemes sometimes simple misconduct is dis- tinguished from gross misconduct and a penalty of forfeiture of gratuity benefit is denied in the latter case but not in the former, but latterly industrial tri- bunals appear generally to have adopted the rule which is contained in cl. (ii) {b) of the present scheme. If the misconduct for which the service of an em- ployee is terminated has caused financial loss to the works, then before gratuity could be paid to the em- ployee he is called upon to compensate the employer for the whole of the financial loss caused by his miscon- duct, and after this compensation is paid to the employer if any balance from the gratuity claimable • • ·, 716 SUPREME COURT REPORTS (1962) 1 96 1 Ga'"ient by the employee remains that is paid to him. On the whole we are r;ot sa~isfied ~hat the clause thus framed Cleaning Works by the Industnal Tnbunal m the present case needs to be revised. v. Its Workmen . The last contention raised by Mr. Sen in regard to the gratuity scheme has reference to cl. (v) of the Ga;md..agadkar J. scheme. This clause provides that for calculating years of service the entire service of the workmen should be taken into account. Mr. Sen contends that though the word "continuous" has not been used either in cl. (v) or in clauses (i), (ii) and (iii) we should make it clear that the service referred to in all the said clauses referred to continuous service. This posi- tion is not disputed by Mr. Dudhia for the respon dents. We would accordingly make it clear that the service referred to in clauses (i), (ii) and (iii) refers to continuous service. • • • • That takes us to the appellant's grievance against the direction issued by the Tribunal in regard to the framing of the provident fund scheme on the lines of the model provident fund scheme drawn by the Government in the Employees' Provident Funds Act. Mr. Sen contends that in issuing this direction the tri- bunal has not properly assessed the extent of the financial obligation which the scheme would impose the appellant and the limited nature of its financial capacity. "It appears that when the ap pellant produced its balance-sheet and other re levant papers it claimed privilege under s. 21 of the Industrial Disputes Act. bunal could not discuss the figures disclosed by the ~ said books in its award though it must have exa mined the said figures carefully. In the result the tribunal has naturally contented itself with the general observation as to the financial position of the appel- lant. It has observed that the question to consider in framing the provident fund scheme is whether the employer has made good profits, whether its future is assured, whether it has capacity to build up adequate reserves. Having thus posed the question the Tribunal has come to the conclusion that the appellant satisfies all these requirements. Mr. Sen contends that the Inevitably the Tri ,. I S.C.R. SUPREME COURT REPORTS 717 - 19 61 Garment v. Its Workmen . tribunal did not take into account the fact that the appellant has no reserves and that it had borrowed large loans. We do not see how that would enable the Cleaning Works appellant now to agitate a question which is purely a question of fact. Mr. Sen realised the difficulties in his way because, since his client had claimed the pri- vilege of s. 21 the Tribunal was fully justified in not Ga1endragadkar J. discussing the figures in its a ward. He, therefore, faintly suggested that we niay remand the case subject to any order as to costs that we may deem fit to make and ask the Tribunal to reconsider the matter in the light of the relevant documents, and he assured us that he would not claim privilege under s. 21 after remand. This r~quest is plainly untenable. If the appellant wanted the tribunal to consider the figures and state its conclusions in the light of the said figures in its award it need not have claimed privilege under s. 21 at the trial. It is now too late to suggest that the privilege be waived and that the matter be con- sidered afresh by the tribunal or by us in the appeal. Therefore we see no reason to interfere with the direc- tion given by the Tribunal in regard to the framing of the provident fund scheme. The result is the appeal fails and is dismissed with costs. Appeal dismissed. • M/S. JEEWANLAL (1929) LTD., CALCUTTA v. ITS WORKMEN (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.) Industrial Dispute-Gratuity-'Continuous service'-[ nterpre tation of-Industrial Disputes Act, 1947 (14 of 1947). One Bhanu Bala had joined the appellant's service as a workman in 1929 and resigned in 1957· During this period of bis service he had ren1ained absent from duty without permis sion or leave for nearly 8 months between February, 1945, to April 3.