High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 2.3.2012CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.40680 of 2002 Mr.S.Jagadeesan. ... Petitioner -Vs.-1.The Tamil Nadu Electricity Board, represented by its Chairman, No.800, X Floor, K.R.R. Maaligai, Anna Salai, Chennai-600 002.2.The Secretary, Tamil Nadu Electricity Board, No.800, K.R.R. Maaligai, Anna Salai, Chennai-600 002.3.The Assistant Commissioner of Labour-II, Office of the Deputy Commissioner of Labour, Labour Welfare Board Building, I Floor, D.M.S. Compound, Teynampet, Chennai-600 006.4.The Government of Tamil Nadu, represented by its Secretary, (Labour and Employment), Fort St. George, Chennai-600 009. ... Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Mandamus, directing the respondents1 and 2 to adopt the method of calculation of gratuity of thepetitioner in accordance with the calculation provided under thePayment of Gratuity Act 1972, and pay the petitioner the differencein gratuity amounting to Rs.23,481/- with interest from the date thesame has become due. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mrs.V.Pushpa,For respondents : Mrs.R.Varalakshmifor R1 and R2Mr.S.V.Durai Solaimalai,Additional Government Pleader,for R3 and R4.O R D E R Writ Petition is filed praying to issue a Writ of Mandamus,directing the respondents 1 and 2 to adopt the method of calculationof gratuity of the petitioner in accordance with the calculationprovided under the Payment of Gratuity Act 1972, and pay thepetitioner the difference in gratuity amounting to Rs.23,481/- withinterest from the date the same has become due.2. Though the writ petition has been filed for the relief asabove, learned counsel for the petitioner pleads that a similar issuewas considered by this Court and an order has been passed in W.P.(MD)No.33704 of 2002 dated 4.3.2011. In that case the very samerespondents were directed to calculate the gratuity of the petitionertherein in terms of the calculation provided under the Payment ofGratuity Act, 1972 with statutory interest. The operative portion ofthe decision reads as follows:-“43. In view of the above categorical pronouncement oflaw on this point, the petitioner is entitled to gratuity.Though the petitioner has not challenged the orders passedby the authorities under the Payment of Gratuity Act,considering the beneficial legislation and the judgments ofthe Courts, this Court is of the view that the petitionerhas been denied of the benefit of gratuity under the Act,which is more beneficial than the one granted under theTamil Nadu Pension Rules and therefore, entitled to seek fora Mandamus. When mandamus can be issued, it is useful torefer to a few decisions of the Apex Court,(i) In the decision reported in (1996) 9 SCC 309 (Stateof U.P. and Ors. v. Harish Chandra and Ors.) in paragraph10, the Apex court held as follows:10..... Under the Constitution a mandamuscan be issued by the court when the applicantestablishes that he has a legal right to theperformance of legal duty by the party againstwhom the mandamus is sought and the said right https://hcservices.ecourts.gov.in/hcservices/ was subsisting on the date of the petition....(ii) In the decision reported in (2004)2 SCC 150 (Unionof India v. S.B. Vohra) the Supreme Court considered thesaid issue and held that for issuing a writ of mandamus infavour of a person, the person claiming, must establish hislegal right in himself. Then only a writ of mandamus couldbe issued against a person, who has a legal duty to perform,but has failed and/or neglected to do so.(iii) In the decision reported in (2008)2 SCC 280(Oriental Bank of Commerce v. Sunder Lal (Jain) inparagraphs 11 and 12 the Supreme Court held thus,11. The principles on which a writ ofmandamus can be issued have been stated as underin The Law of Extraordinary Legal Remedies by F.G.Ferris and F.G. Ferries, Jr.:Note 187. - Mandamus at common law, is ahighly prerogative writ, usually issuing out ofthe highest court of general jurisdiction, in thename of the sovereignty, directed to any naturalperson, corporation or inferior court within thejurisdiction, requiring them to do some particularthing therein specified, and which appertains totheir office or duty. Generally speaking, it maybe said that mandamus is a summary writ, issuingfrom the proper court, commanding the official orboard to which it is addressed to perform somespecific legal duty to which the party applyingfor the writ is entitled of legal right to haveperformed.Note 192. - Mandamus is, subject to theexercise of a sound judicial discretion, theappropriate remedy to enforce a plain, positive,specific and ministerial duty presently existingand imposed by law upon officers and others whorefuse or neglect to perform such duty, when thereis no other adequate and specific legal remedy andwithout which there would be a failure of justice.The chief function of the writ is to compel theperformance of public duties prescribed bystatute, and to keep subordinate and inferiorbodies and tribunals exercising public functionswithin their jurisdictions. It is not necessary,however, that the duty be imposed by statute;mandamus lies as well for the enforcement of acommon law duty. https://hcservices.ecourts.gov.in/hcservices/ Note 196. - Mandamus is not a writ of right.Its issuance unquestionably lies in the soundjudicial discretion of the court, subject alwaysto the well-settled principles which have beenestablished by the courts. An action in mandamusis not governed by the principles of ordinarylitigation where the matters alleged on one sideand not denied on the other are taken as true, andjudgment pronounced thereon as of course. Whilemandamus is classed as a legal remedy, itsissuance is largely controlled by equitableprinciples. Before granting the writ the courtmay, and should, look to the larger publicinterest which may be concerned-an interest whichprivate litigants are apt to overlook whenstriving for private ends. The court should actin view of all the existing facts, and with dueregard to the consequence which will result. Itis in every case a discretion dependent upon allthe surrounding facts and circumstances.Note 206. - .... The correct rule is thatmandamus will not lie where the duty is clearlydiscretionary and the party upon which the dutyrests has exercised his discretion reasonably andwithin his jurisdiction, that is, upon factssufficient to support his action.12. These very principles have been adoptedin our country. In Bihar Eastern GangeticFishermen Coop. Society Ltd. v.Sipathi Singh afterreferring to the earlier decisions in LekhrajSathramdas Lalvani v. N.M.Shah, Rai ShivendraBahadur (Dr.) v.Nalanda College and Umakant Saran(Dr.) v. State of Bihar this Court observed asfollows in para 15 of the Reports (SCC) : (SipahiSingh case, SCC pp. 152-53)15..... There is abundant authorityin favour of the proposition that a writof mandamus can be granted only in acase where there is a statutory dutyimposed upon the officer concerned andthere is a failure on the part of thatofficer to discharge the statutoryobligation. The chief function of awrit is to compel performance of publicduties prescribed by statute and to keepsubordinate tribunals and officers https://hcservices.ecourts.gov.in/hcservices/ exercising public functions within thelimit of their jurisdiction. Itfollows, therefore, that in order thatmandamus may issue to compel theauthorities to do something, it must beshown that there is a statute whichimposes a legal duty and the aggrievedparty has a legal right under thestatute to enforce its performance... Inthe instant case, it has not been shownby respondent 1 that there is anystatute or rule having the force of lawwhich casts a duty on Respondents 2 to 4which they failed to perform. All thatis sought to be enforced is anobligation flowing from a contractwhich, as already indicated, is also notbinding and enforceable. Accordingly,we are clearly of the opinion thatRespondent 1 was not entitled to applyfor grant of a writ of mandamus underArticle 226 of the Constitution and theHigh Court was not competent to issuethe same.Therefore, in order that a writ of mandamusmay be issued, there must be a legal right withthe party asking for the writ to compel theperformance of some statutory duty cast upon theauthorities....”44. Hence, the respondents are directed to calculatethe gratuity of the petitioner, in accordance with thecalculation provided under the Payment of Gratuity Act, 1972and pay him the difference in gratuity, with statutoryinterest, as per the Payment of Gratuity Act, from the dateof entitlement.45. In the result, the writ Petition is allowed. Nocosts.” 3. In view of the above reasoning to which I agree, therespondents are directed to calculate the gratuity of the petitioner,in accordance with the calculation provided under the Payment ofGratuity Act, 1972 and pay him the difference in gratuity, with https://hcservices.ecourts.gov.in/hcservices/ statutory interest, as per the Payment of Gratuity Act, from thedate of entitlement. This Writ Petition is allowed as above. Nocosts. Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.tsTo1.The Chairman, Tamil Nadu Electricity Board, No.800, X Floor, K.R.R. Maaligai, Anna Salai, Chennai-600 002.2.The Secretary, Tamil Nadu Electricity Board, No.800, K.R.R. Maaligai, Anna Salai, Chennai-600 002.3.The Assistant Commissioner of Labour-II, Office of the Deputy Commissioner of Labour, Labour Welfare Board Building, I Floor, D.M.S. Compound, Teynampet, Chennai-600 006.4.The Secretary to Government, (Labour and Employment), Fort St. George, Chennai-600 009. 1 cc to M/s.V.Pushpa, Advocate, SR No.15366 W.P.No.40680 of 2002ksj[co]gp/22.3