The Management of Coimbatore Murugan Mills v. The Assistant Labour, Commissioner (Central)-I Shastri Bhavan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 8.4.2008CoramThe Hon'ble Mr. Justice K.CHANDRUW.P. No.13430 of 1998The Management of Coimbatore Murugan Mills,rep.by General Manager,Muttupalayam Road,Coimbatore 641 043.. Petitioner vs.1.The Assistant Labour, Commissioner (Central)-I Shastri Bhavan, 26, Haddows Road, Chennai-600 006.2.The Regional Labour Commissioner, (Central), Shastri Bhavan, 26, Haddows Road, Chennai-600 006.3.P.Angannan,... Respondents Petition filed under Article 226 of the Constitution of India toissue a writ of certiorari to call for the records of the 2ndrespondent and quash its order in Gratuity Appeal No.175/97 dated29.4.98 confirming the order of the 1st respondent in G.A.No.46 of 1994dated 13.5.1997.For Petitioner : Mr.Ravindran for M/s.T.S.Gopalan & coFor Respondents : Mr.K.M.Ramesh for R3 O R D E RThe petitioner is a Textile Mill, taken over by the NationalTextiles Corporation. A dispute arose with reference to theentitlement of gratuity made by the 3rd respondent. Since fullgratuity was not paid, the 3rd respondent filed a Gratuity Applicationbefore the first respondent, who is the Controlling authority,notified by the Central Government. The said gratuity application wastaken on file as Gratuity Application No.46 of 1994. https://hcservices.ecourts.gov.in/hcservices/

2. Two specific questions arose before the first respondent. Thefirst question is whether the 3rd respondent/workman is entitled forgratuity for a period of six years, namely 1974, 1979, 1989, 1990,1991 and 1997, during which period allegedly there was a strike in themills. The second question is that the mill, in which the 3rdrespondent/workman was working, was originally owned by a privatecompany and on account of prolonged closure (nearly for three years),the mill was subsequently taken over by National Textiles CorporationLtd., through a Parliamentary enactment. In that event whether the 3rdrespondent/workman is entitled for gratuity for the said closureperiod.3. The first respondent directed payment of the unpaid gratuityfor a total period of 9 years, which includes 6 years for the illegalstrike and 3 years for the period of closure. The petitionermanagement filed an appeal before the second respondent/appellateauthority, constituted by the Central Government, and the said appeal,which was numbered as G.A.No.175 of 1997, was partly allowed by anorder dated 29.4.1998. However, the appellate authority disallowedthe claim of gratuity for the closure period, basing upon the judgmentof this Court in respect of similar mills taken over by the NationalTextiles Corporation. Since that portion of the order is not underchallenge, it is unnecessary to go into the said issue. However, theappellate authority held that the workman having been allowed to workfor more than 240 days, including the holidays those six years hecannot be denied gratuity. 4. Mr.Ravindran, learned counsel representing M/s.T.S.Gopalan,brought to the notice of this Court Section 2-A of the Payment ofGratuity Act(hereinafter referred to as the P.G.Act) and contendedthat the said definition of 'continuous service' will clearly excludethe period in which the workman had gone on strike, and thereforesubmitted that the orders of the first and second respondents sufferfrom material irregularity.5. It is brought to the notice of this Court that the attempt bythe 3rd respondent/workman as well as the appeal by the writ petitionerin moving the authorities constituted by the Central Government forgratuity is totally misconceived. Even though the mills (CoimbatoreMurugan Mills), in which the 3rd respondent/workman was working, wastaken over by the National Textiles Corporation, still in so far asthe mill is only a Factory and the fact that the National TextilesCorporation Ltd. is having several factories all over India, has norelevance for holding that the Central Government was the appropriateGovernment. On the contrary, as per the definition of Section 2a(ii)of the P.G.Act, it can only be the State Government (See JeevanlalLtd., vs. Controlling Authority under the P.G.Act reported in 1982(1)LLJ 84. https://hcservices.ecourts.gov.in/hcservices/

6. However, at this point of time, it is unnecessary to set asidethe orders of the two lower authorities on such a technical ground.In this context it is relevant to refer to the judgment of the SupremeCourt rendered in the STATE OF PUNJAB VS. LABOUR COURT JULLUNDUR ANDOTHERS - (1981(1) LABOUR LAW JOURNAL 354), wherein the Supreme Courtafter holding that the Labour Court has no jurisdiction to deal witha gratuity claim and only the authority under the Payment of GratuityAct alone can deal with the said issue being a special enactment, yetthe Supreme Court observed that it was unnecessary to drive theparties after so many years of litigation to the special forum andconfirmed the order of the Labour Court in the special circumstancesof the case. In the light of the said principle, this Court is notinclined to set aside the orders on the ground of want of jurisdictionby the first and second respondents. 7. On the contention raised by Mr.Ravindran, learned counsel forthe petitioner that the term 'strike' found in Section 2-A of theP.G.Act will disentitle the workman from claiming gratuity in respectof the period in which there was a strike and in those years theworkman will have to prove that he had actually worked 240 days in themills and that any shortfall from 240 days he will not get gratuityfor those years, it must be stated that the said term 'strike' isqualified by the term 'not due to any fault of the employee'.8. The definition under Section 2-A even though borrows heavilysimilar terminology defining 'continuous service' found in Section 25-B of the Industrial Disputes Act 1947, there is material differencebetween the two definitions. While in the case of Industrial DisputesAct, the law making authorities were careful enough in making an'illegal strike' as being the disqualification for computing theperiod of continuous service, in the case of Payment of Gratuity Act,(that too, by an amendment introduced by Central Act 26/84)incorporating Section 2-A there is a deliberate departure. The word'strike' and other terms like 'lock-out' or 'cessation of work' isfurther qualified by the term 'not due to any fault of the employee'.9. In the present case both the authorities have concurrentlyfound that the workman had completed 240 days', even though it isdiscontinuous. Therefore it is really unnecessary to go into thequestion whether due to the strike the 3rd respondent/workman would bedisqualified from receiving any amount for the said period. Howeverthis Court is of the view that it is the obligation of the employer toprove before the authority that the strike was 'due to the fault ofthe employee' and not merely produce a tabulated statement to showthat there was a strike during the period and that the workman'sservice was automatically discontinuous and in such of those years hewill not get gratuity if he had not worked 240 days in an year. https://hcservices.ecourts.gov.in/hcservices/

10. The learned counsel for the petitioner strenuously contendedthat in such a case the burden is on the workman and not on theemployer. This Court is unable to agree with the said contentionbecause the obligation to pay gratuity arises the moment any one ofthe contingencies found in Section 4 of the Act arises and it was theobligation of the employer to pay gratuity to the workman. Furtherthe breach in such cases will be visited by a penalty also. In thiscontext this Court is of the view that it is for the employer to provethat the strike, in which the workman had allegedly participated, issolely due to the fault on the part of the employee. In his case bothfirst and second respondents have found against the petitioner and thesaid finding of fact do not call for any interference.11. It must also be noted that the amount involved in thepresent case is very small. By the orders of this Court, thepetitioner had already deposited before the first respondent theentire amount and the stay has also been made absolute by this Courton 26.12.2002. As this Court is not agreeing with the contention ofthe petitioner management, the 3rd respondent/workman is entitled towithdraw the amount lying in deposit with the first respondent.12. However, at this stage, the learned counsel for the 3rdrespondent/workman has brought to the notice of this Court that the 3rdrespondent/workman is no more. In that context, without driving theparties to take further steps, it is made clear that the legalrepresentatives of the 3rd respondent are entitled to seek forwithdrawal of the deposited amount lying with the first respondent tothe credit of G.A.No.46 of 1994, after proving to the satisfactionauthority that they are the legal heirs of the 3rd respondent.13. The writ petition is dismissed with the above directions.But considering the peculiar circumstances of the case there is noorder as to costs. Sd/Asst. Registrar/true copy/Sub Asst.Registrarmsk To1.The Assistant Labour, Commissioner (Central)-I Shastri Bhavan, 26, Haddows Road, Chennai-600 006. https://hcservices.ecourts.gov.in/hcservices/

2.The Regional Labour Commissioner, (Central), Shastri Bhavan, 26, Haddows Road, Chennai-600 006.+1 cc to Mr.T.S.Gopalan, Advocate, SR.No.19618.+1 cc to Mr.K.M.Ramesh, Advocate, SR.No.19469.Akr (Co)krd / 17.4W.P.No.13430 of 1998