Letters Patent Appeal No. 1308 of 2011 · Patna High Court · 2011
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No. 1308 of 2011 In Civil Writ Jurisdiction Case No. 15398 of 2008 With Interlocutory Application No. 6416 of 2011 In Letters Patent Appeal No. 1308 of 2011. ====================================================== The Chairman, M/S Hindustan Lever Limited now know M/s Hindustan Unilever Limited, Hindustan Lever House, 165/166 Backbay Reclamation, Mumbai-400026 and Regional Office inter alia at Brooke House, 9, Shkeshpear Sarani, Kolkata-700071 through its authorized signatory Mr. Aditya Mudgul, son of Dr. Mahendra Kumar Mudgul, Regional Legal Manager, East. .... .... Respondent- Appellant Versus 1. Union of India through Secretary, Labour & Employment, New Delhi. 2. Assistant Labour Commissioner (Central), (The Controlling Authority under the Payment of Gratuity Act, 1972), Maurya Lok Complex, 2nd Floor, Patna. 3. The Regional Labour Commissioner (Central), Patna.
Legal Reasoning
………….Respondents-Respondents 4. Smt. Maya Mukherjee, W/o Late Pulak Mukherjee resident of „AASHIS‟, Mithapur „B‟ Area, Patna-800 001. …. Petitioner-Respondent ====================================================== Appearance : For the Appellant : Mr. N. K. Agrawal, Sr. Advocate & Mr. Jayanta Ray Chaudhary, Advocate. Ms. Kalpana, CGC (UoI) For the Respdt. Nos. 1 to 3: Mr. Satya Prakash Tripathy, Sr.SCCG (UoI) & For the Respondent No.4 : Mr. Sanjay Singh, Mr. Raj Kamal & Mr. Digvijay Narayan Singh, Advocates ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH Patna High Court LPA No.1308 of 2011 (10) dt.20-08-2013 2/6 ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 10 20-08-2013 This Appeal under Clause 10 of the Letters Patent is preferred by the respondent M/s Hindustan Lever Limited (hereinafter referred to as “the Company”) against the judgment and order dated 9th May 2011 passed by the learned single Judge in CWJC No. 15398 of 2008. It appears that the respondent Smt. Maya Mukherjee is the widow of one Pulak Mukherjee, a former employee [Territory Sales Incharge] of the Company. The said Pulak Mukherjee joined the Company in 1969 and died in 1979. Pursuant to his death, the terminal benefits were paid to his successor, the writ petitioner. For around ten years of service rendered by the late Pulak Mukherjee, gratuity in the sum of Rs. 6975/- was paid to the writ petitioner in 1979. Twenty years thereafter, the writ petitioner raised the issue of payment of gratuity. On 24th December 1999 the writ petitioner approached the Company. She made a vague application for payment of the dues. According to her, the Company was paying post-1975 claims of Territory Sales Incharge of the Company. Evidently, the said application was not processed. Since then, on 8th September 2004 she raised the dispute in respect of the gratuity payable to late Pulak Mukherjee by filing application in Form „N‟ under The Payment of Gratuity Act, 1972 read with The Payment of Gratuity (Central) Rules, 1972. She claimed that her husband had rendered twenty years of service and that his last pay was Rs. 2520/-. The said application was contested by the Company. The controlling authority, under its order dated 23rd June 2005, allowed the claim partially. The Patna High Court LPA No.1308 of 2011 (10) dt.20-08-2013 3/6 controlling authority did not accept the total service of nineteen years and eight months claimed by the writ petitioner, but did accept the service of nine years and seven months from 1969 to 1979. The controlling authority also accepted the claim that the last pay of the deceased was Rs. 2520/-. Consequently, the controlling authority held that a sum of Rs. 14538/- was the amount of gratuity payable. After giving adjustment for the amount already paid, the controlling authority directed the Company to pay gratuity in the sum of Rs. 7563/- with interest @ 10% from the date of the death, i.e. 15th June 1979. The controlling authority rejected the contention that the claim was barred by limitation relying upon the judgment of the Hon‟ble Supreme Court in the matter of Workmen of M/s Hindustan Lever Limited & Ors. Vs. The Management of M/s Hindustan Lever Limited (AIR 1984 SC 516). Feeling aggrieved, the Company challenged the order of the controlling authority before the appellate authority. The appellate authority, under its order dated 13th August 2008, set aside the order of the controlling authority. The appellate authority held that late Pulak Mukherjee had served under the Company for a period of nine years and seven months, i.e. ten years, and that his last pay was Rs. 1495/- as evidenced by the pay-slip. The controlling authority did not believe the claim of the writ petitioner that the last pay of late Pulak Mukherjee was Rs.2520/-. The appellate authority held that the claim of the writ petitioner was hearsay, not supported by the evidence and was contrary to the evidence on record. The appellate authority held that the claim was not justified and rejected the same. Feeling aggrieved, the writ petitioner approached this Patna High Court LPA No.1308 of 2011 (10) dt.20-08-2013 4/6 Court under Article 226 of the Constitution in above CWJC No. 15398 of 2008. The learned single Judge has allowed the Writ Petition. Therefore, this Appeal. Learned counsel Mr. N.K. Agrawal has appeared for the Company. He has assailed the judgment of the learned single Judge. He has submitted that the writ petitioner was paid the amount of gratuity at the relevant time as was payable. The writ petitioner accepted the said amount without demur. The claim could not have been reopened the way it has been done in the present case. He has submitted that in absence of any proof of late Pulak Mukherjee having received pay in the sum of Rs. 2520/- as alleged, the learned single Judge has erred in believing the said claim contrary to the evidence on record. Learned advocate Mr. Sanjay Singh has appeared for the respondent-writ petitioner. He has supported the judgment of the learned single Judge. He has submitted that late Pulak Mukherjee was paid salary in accordance with the 1975 Amendment unilaterally made by the Company. The said action of the Company has been set aside by the Hon‟ble Supreme Court in the matter of Workmen of M/s Hindustan Lever Limited & Ors. (AIR 1984 SC 516). Thus, late Pulak Mukherjee was entitled to pay in accordance with the 1971 Settlement. The claim of the writ petitioner that his last pay was Rs. 2520/- is thus substantiated. He has relied upon the judgments of the Hon‟ble Supreme Court in the matter of Workmen of M/s Hindustan Lever Limited & Ors (supra) and the judgment in the matter of Hindustan Lever Mazdoor Sabha Vs. Hindustan Lever Limited & Anr. [(1998) 8
Decision
SCC 349]. He has submitted that in view of the above referred two judgments, a fresh cause of action arose for the writ petitioner to Patna High Court LPA No.1308 of 2011 (10) dt.20-08-2013 5/6 claim the difference in amount of gratuity. The controlling authority and the learned single Judge have rightly allowed the said claim. We are unable to agree with Mr. Sanjay Singh. At the outset we may note that neither of the aforesaid judgments gave a fresh cause of action to the writ petitioner. A matter which had been settled as early as in 1979 could not have been reopened in 2002. Besides, the claim of the writ petitioner in respect of the last pay of late Pulak Mukherjee was not substantiated by any evidence. On the contrary, the claim was contrary to the evidence on record. Such a claim could not have been accepted by the controlling authority. The matter of Hindustan Lever Mazdoor Sabha (supra) arose from a contempt petition. All that the Court held was that the judgment dated 5th January 1984 (AIR 1984 SC 516) gave a fresh cause of action to the complainant to agitate the matter which was unilaterally blocked by the management by its order of June 1975. It is apparent that the said observation was not made with a view to throwing open the Pandora‟s Box so as to reopen all claims settled decades earlier. As recorded hereinabove, the claim made by the writ petitioner was not substantiated. Moreover, it was barred by limitation provided under Rule 7(3) of The Payment of Gratuity (Central) Rules, 1972. The application before the controlling authority was also barred by limitation as provided under Rule 10(1) (iii) of the aforesaid Rules of 1972. For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 9th May 2011 passed by the learned single Judge in CWJC No. 15398 of 2008 is set aside. Patna High Court LPA No.1308 of 2011 (10) dt.20-08-2013 6/6 CWJC No. 15398 of 2008 is dismissed. The order dated 13th August 2008 of the appellate authority is restored. Interlocutory Application No. 6416 of 2011 stands disposed of. (R.M. Doshit, CJ) Dilip. (Ashwani Kumar Singh, J)