March 25 v. J. N. JARARE & Ors.

The appellant company was a licensee for supplying elec tricity. The State Electricity Board had by a notice intimated its intention to purchase the appellant's undertaking on the expiry of its license. Two days prior to the expiry of the licence the Indu1trial Court at Nagpur framed a scheme for payment of gratuity to the employees of the appellant company with cft'ect from the date of the order. On application by the appel lant company under Art. 227 of the Constitution the High Court of Nagpur set aside the Industrial Court's order and remanded the matter for the reconsideration. After remand the Industrial Court came to the conclusion that the appellant company was in a position to pay gratuity and made a fresh award framing a scheme for payment of gratuity to its employees at the rate oft month's average wage. This award was made more than a year after the company had closed its business. The present appeal is by way of special leave granted by this Court. The main contention in the appeal was that the Tribunal was not justified in imposing on the company a gratuity scheme at a time when it had already ceased to carry on its business. Held that the gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come and hence the Industrial Court acted wrongly in framing any gratuity scheme for payment of gratuity by the company to its employees, btdian Hume Pipe Go. v. [1960], 2 S. C. R. 32 and Bharatk/tand 1'extile Mfg., Go., Ltd. v. Tt;Cti/e Labour .AaBociation, [I 960] 3 S.C.R. 329, distinguished. Its Workmen, 1963 AJ;ola Eftrlrfr Supply c.. v. J Ji/ Jar=rt Do.< C.pto J. 514 SUPREME COURT REPORTS [1964) VOL. CIVIL APPELi.ATE Jt::R181l!CTION: Civil Appeal No. 63i ofl962. · Appeal by special leave from the award dated April 29, 1961 of the State Industrial Court at Nagpur in Industrial Reference l\'o. 13 of 195!!. Jf. C. Se{(j[vad, Vallabhdt1.s Jfchta and Sr1rda1· IJahadur, for the appellant. S . .1. Solwni, Slumti Su:aru.p K!tanditJa, L:i /it K v.ma.r and Grmpat Rrii, for the respondents.

#1963. March 25. The Judgment of Court was delivered by DA~ GUPTA J.-This appeal by special leave is against an award of the Industrial Court at Nagpur under s. 38 (a) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 dated April 2!J, 1961. By an earlier award dated December 4, I 959, the Industrial Court ordered the payrrrnt of gratuity to the employees of the appe llant C:ompany on certain rates. The award was·to romc into force from December 4, 1959. On an the Company under Art. 22i of the application by Consritution, the Nagpur High Court set aside the Industrial Court's order and remanded the matter for rrconsideration of the question after examining the financial condition of the Company. After remand the Industrial Court took evidence of both parties as ·regards the financial condition of the Company and came to Company was in a very sound financial position and could easily bear the burden of payment of gratuity l\ccord to the ext~nt of Rs. 50,000/- or even more. ingly, the Industrial Court n~ade a fresh awar'.! directing the payment of gratuity to the Company s employees at the rate of 1 month's average wag~ the average wage to be calculated for the · period December l, 1958 to November 30, 1959 to cv~ry the conclusion 2 s.c.R. SUPREME COURT REPORTS 515 employee who had to his credit uninterrupted con tinuous service of not Jess than five years on termina· tion of his service, except by dismissal on account of misconduct. The award was directed to come into force from April 29, l 9uL IH.J ' Ak1l1 El1etric Su;;I) c.. v. J. N. lcrcre v., c.;11 1 . . The ·Appellant Company was a licensee for supplying electric energy to the public within the area approximating to the Municipal limits of Akola. The license expired on December 6, 1959. Prior to this the State Electricity Board had by a notice dated November 27, I 957, intimated its in tention to exercise its option to purchase the under taking on the· expiry of the license. It was after this notice had been served and it was known that the Company would be closing its business on December 6, 1959, 'that the claim for gratuity in respect of which the Industrial Court has made its award, was first made. Indeed, the very application for referring this and other disputes for arbitration contained the frank statement that it was in view of the impending closure of business that the claim for gratuity was being made. It is interesting to notice that the earlier award by the Industrial Court was made only two days before the Company's license expired and the business was taken over by the Bombay Electricity Board. The award now under appeal was made more than a year after the Company had closed its business. The main contention urged before us in support of the appeal is that the Tribunal was not justified in imposing on the Company a gratuity scheme at a time when it had already ceased to carry on its It is argued that gratuity schemes are business. planned on a long term basis, the ruling principle being to make the employer to pay retiral benefits to such of its employees as retire from year to year. The framing of a gratuity scheme when an industry is. on the verge of closure or after it hits closed is, i\ 1963 Ako/4 I::ltclric Supply Co. •• J. N. Jr..rar1 516 SUPREME COURT REPORTS [1964] VOL. is urged, wholly unjustified. is considerable force in this contention. In our opinion, tltere It has been laid down by this Court that the ~tatutory provision for payment of retrenchment compensation is no bar to the framing of a gratuity scheme. The question was fully considered by this Court in Indian Hume Pipe Co. v. Its Workmen ('), where this Court pointed out that while gratuity is intended to help workmen after retirement to what· ever cause the retirement may be due to, retrench· ment compensation is intended to give relief for the sudden and unexpected termination of employment by giving partial protection t..> the retrenched person to enable them to tide over the hard and his familv It has also been held by period of unc, mployment. this Court in the Bluiratkhrmd 1'extile Mfg. Co. Ltd. v. 1'e;dile /,'lbour A sson. ('), that the existence ofa Provident Fund Scheme is also no bar to the of further retiral benefit by way of provmon gratuity scheme. assist such a plea. Learnrd Counsel for the respondent seems to t hcse cases somehow supported his contcntio·1 that the fact that an industry is going to is no bar to a framing close or lias actually closed of gratuit)' scheme for its employees. \Ve are unable these decisions of to sec however anything In neither this Court that we of these cases nor know of had this Court to consider the question of a gratuity scheme in an industry which is going to close in the near future or has already been closed. Indeed, we know of no case in which an Industrial Tribunal has ever framed a gratuity scheme for an industry which was not expected to carry on or has ceased to carrv on its business. In all the cases tha1 have come u~fore Industrial Tribunal or this Cour gratuity schemes asked for or allowed have been in to carry on fora industries which were expected in any other case (IJ (1960) 2 8.0.R. 32. (2) [t960) 3 S.C.R. 529. 1963 .4.k6la Efrcirit Su_;~ly Co. v. J, JI. Jarare Dss upts J. ~ s.C.R. SUPREME COURt REPORTS 517 industry to bear the additional important factors fairly long time. One of the requires consideration in deciding on the propriety of a scheme of gratuity is the ability of financial burr!en and in deciding this question it has been repeatedly pointed out, year has to be considered afier taking into account the average number of retirements likely to take place in a year. Thus in the Bha.ratkhand Textile Jlfg. case (1), this Court in discussing the consi derations that arise in such matters, said:- the burden from year for gr.atuity " ...... there can be no doubt that before industrial framing a Scheme adjudication has to take into account several relevant facts; the financial condition of the employer, his profit-making capacity, profits earned by him in the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme .............. . ............ It appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would not be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the emyloyer. In evolving a long-term scheme a long-term view has to be taken of the employer's financial condition and it is on such a basis alone that the question as to whether a scheme should be framed or not must be decided ............ ". These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. (1) (1960] S 8,C ,R, 329 ,,,, "'''° E/1elric Sup; ly ... Co. /, N.Jarart D., GuPI• J. 518 StJPREME COURT REPORTS [1964] VOL. It has to be noticed that the provision gratuity scheme is not based on any statutory enactment, but has been evolved bv industrial adjudication as a step to achieve social 'justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked to bear .. to close The position 1s materially altered however when the industry is in the expected immediate future, or has actually closed. In such a case the entire body of workmen will be "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant ofretrenchment compensa· tion, in additio11 to. what is provided for in 'Ne cari find no justification for this in the statute. principles of social j usticc. \Ve have therefore come to the conclusion that the Industrial Court acted wrongly in directin!! the Company to its any gratuity to. be paid by emyloyecs. \Ve accordingly allow the appeal, and set aside the award made by the Industrial Court. There will be no order as to costs. Appeal allowed.