High Court
Case Details
WP(C) 541/2005 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral)
Legal Reasoning
Heard Mr. RC Paul, learned counsel for the petitioner and Mr. H. Rahman, learned counsel appearing for the respondent No.1. None appears for the respondent No. 2, despite reflection of the names of the learned counsel appearing for the said respondent in the cause list. [2] The petitioner, who is admittedly the employer of the respondent No.2, by the present petition has challenged the order dated 20th August, 2004 passed by the learned Assistant Labour Commissioner and Controlling Authority un der the provisions of the Payment of Gratuity Act, 1972 (in short, (cid:28)the Act (cid:29)) in Case No.24/2004, whereby and whereunder, it has been held that the respondent N o.2 is entitled to gratuity under the provisions of the said Act and hence, dire cted to pay the remaining amount of Rs.16,903.84 with interest @ 10% per annum. The Assistant Labour Commissioner, however, waived the payment of interest, con sidering the nature of organization and management, provided the amount so award ed, is paid immediately. Mr. Paul, learned counsel for the petitioner submits that since [3] the petitioner never, at any point of time, employed 10(ten) or more persons, it is not covered under the provisions of the 1972 Act and hence, the Assistant La bour Commissioner ought not to have passed the order holding that the respondent No.2 is entitled to gratuity under the provisions of the said Act. The learned counsel referring to the decision of the petitioner taken in its proceeding dat ed 4th July, 2003 has submitted that though the employees of the petitioner are not covered under the provisions of the said Act, the petitioner has taken a dec ision to pay the gratuity to the staff, who have completed 25(twenty-five) years of service or more at the rate of 15(fifteen) days salary per year from the dat e of confirmation till the date of retirement, subject to maximum of Rs.30,000/- , which amount admittedly has been paid to the respondent No.2.
Decision
[4] It appears from the materials available on record that the respo ndent No.2, who is admittedly an employee of the writ petitioner, after his reti rement, filed an application before the Controlling Authority for directing the petitioner to pay the gratuity payable under the provisions of the aforesaid Act , contending inter alia that though he is entitled to such payment, the petition er has paid only an amount of Rs.30,000/- pursuant to its earlier decision dated 4th July, 2003. The learned Assistant Labour Commissioner on receipt of the sa id complain, registered the same as Case No.24/2004 and issued notice to the pet itioner. The petitioner on receipt of the notice filed the objection, which rea ds as follows:- (cid:28)To The Asstt. Labour Commissioner, Tinsukia, (Assam) Sub: Case No.24/2004 dtd. 10.8.04 (Gratuity) Ref: Your letter No.PGA/2/94/5312-13 dtd. 10.8.04 Sir, In reference to your above letter it is to inform you that as per managing Commi ttee’s Proceeding held on 4-7-03, regarding payment of Gratuity, the Committee h as decided to pay to the Staff of Railway Employee Consumer Co-operative Hijugur i after retirement as per slab. Extract of the slab of Item No.1 which related to this case is given below:- 1. Item No.1 - ’The Staff who completed 25 years of the service or more he is admissible Gratuity - 15 days per year from date of Confirmation till retirem ent subject to maximum of Rs.30.000/- (Rupees Thirty Thousand) only.’ So, the payment of Gratuity has made to Shri K.L. Paul (ex-Sales Manager ) as per proceeding fixed by the Managing Committee mentioned above. This is for your kind information please. Yours faithfully Secretary (cid:29) [5] In the said objection, it has not been disputed that the respond ent No.2 is an employee of the petitioner. According to the petitioner, the res pondent No.2 is not entitled to any amount other than Rs.30,000/-, which has alr eady been paid, as the provision of the Act is not applicable. It is not the ca se of the petitioner in the said objection that its employees are not covered un der the provisions of the 1972 Act, as the petitioner never employed 10(ten) or more persons. Such plea though was taken in the review petition filed, the said review petition has also been rejected. The petitioner also could not demonstr ate before this Court that it never employed 10(ten) or more persons. Sub-Section 3(b) of Section 1 of the Act provides that every sho [6] p or establishment within the meaning of any law for the time being in force in relation to shops and establishment in a State, in which ten or more persons are employed, or were employed, on any day of the preceding 12(twelve) months, the provisions of the said Act would apply. Section 4 provides that the gratuity sh all be payable to an employee on the termination of his employment after he has rendered continuous service for not less than 5(five) years (a) on his superannu ation; (b) on his retirement or resignation; and (c) on his death or disablement due to accident or disease. The first proviso stipulates that the completion o f continuous service of 5(five) years shall not be necessary, where the terminat ion of the employment of any employee is due to death or disablement. Sub-Secti on (2) of Section 4 of the aforesaid Act provides that for every completed year of service or part thereof in excess of 6(six) months, the employer shall pay gr atuity to an employee at the rate of 15(fifteen) days wages based on the rate of wages last drawn by the employee concerned. The amount of gratuity payable to an employee, however, would not exceed Rs.3,50,000/- at the relevant point of t ime. [7] Since the petitioner has failed to demonstrate that it has never employed 10(ten) or more persons, they are liable to pay the gratuity to the re spondent No.2 under the provisions of the Act. The amount payable pursuant to t he decision taken by the petitioner in its proceeding dated 4th July, 2003 being less than the gratuity payable to the respondent No.2, the petitioner has to pa y the balance amount, as determined by the Controlling Authority. In view of the above, I do not find any merit in the writ petiti [8] on to disturb the direction issued by the learned Assistant Labour Commissioner vide order dated 20th August, 2004. The petitioners shall pay the amount of Rs. 16,903.84, with interest, as awarded by the learned Assistant Labour Commissione r, Tinsukia, provided the said amount has not already been paid. In case, the s aid amount has already been paid immediately after the order was passed by the l earned Assistant Labour Commissioner, interest need not be paid. [9] The writ petition is accordingly dismissed. No costs.