A.Ponnambalam v. The Deputy Commissioner of Labour (Appellate Authority under Payment of Gratuity Act)

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.8.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIW.A.No.3934 of 2004A.Ponnambalam.. Appellant/Petitioner in WP No1273/95Vs1. The Deputy Commissioner of Labour (Appellate Authority under Payment of Gratuity Act), Tiruchirapalli-20.2. The Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act, 1972) Tiruchirapalli-20.3. Swami Bodananda Manager, Thapovanam Press Thiruparaithurai.. Respondents/Respondents/ in WP.No.1273/95PRAYER: Appeal under Clause 15 of the Letters Patent against the order ofthe learned Single Judge dated 5.6.2002 made in W.P.No.1273 of 1995.writpetition filed under Article 226 of the constitution of India praying toissue Writ of Certiorari calling for the records pertaining to order ofthe 1st respondent passed in P.G.Apeal No.11/93 dated 30.12.1993 and quashthe same.For Appellant:Mr.D.RajagopalFor Respondents:No appearanceJUDGMENT(Delivered by P.D.DINAKARAN,J.)The unsuccessful petitioner is the appellant in this appeal, whicharises from the order of the learned Single Judge dated 5.6.2002 made inW.P.No.1273 of 1995.2. For the sake of convenience, the parties are arrayed as per theirrank in the writ petition. https://hcservices.ecourts.gov.in/hcservices/

3.1. The genesis of the proceedings leading to the present case,shorn of unnecessary details, may be stated thus:The petitioner was an employee under the third respondent/employer ondaily wage basis. He was appointed under the third respondent/employer on1.1.1956, however, the third respondent/employer closed its operationduring February, 1965 and thereafter, reopened the establishment onlyduring December, 1966 and the petitioner continued to serve the thirdrespondent/employer after reopening of the establishment. When thepetitioner was transferred from Tiruparaithurai to Madurai, he did notreport duty at Madurai, which resulted in his termination on the groundthat he voluntarily abandoned service. After he was terminated fromservice on 9.7.1990, he made an application for payment of gratuity beforethe second respondent/original authority under Section 4(1) of the Paymentof Gratuity Act, 1972 (for brevity, the "Act") on 13.12.1990. 3.2. Before the second respondent/original authority, the thirdrespondent/employer submitted that, in view of his voluntary abandonmentof service, the petitioner is not entitled to gratuity. The thirdrespondent/employer also denied that the petitioner had been in continuousservice for 35 years and stated that the petitioner had put in only 25years service and his daily wage was Rs.21.67.3.3. The second respondent/original authority, by order dated30.3.1992, observing that, even assuming the petitioner has abandoned hisservice, the third respondent/employer has not initiated disciplinaryaction against the petitioner, and following the decision in DCM v.Shambhu Nath Mukherji, (1977) 4 SCC 415 wherein it is held that automaticstriking of name of workman from rolls without passing orders would amountto retrenchment within the meaning of Section 2(oo) of the IndustrialDisputes Act, held that such retrenchment is a termination of service andfalls within the scope of Section 4(1) of the Act entitling the petitionerto gratuity. However, as the petitioner failed to produce any materialsto show that he was in service from 1956 to 1966, the secondrespondent/original authority taking the last drawn daily wage of thepetitioner as Rs.21.67 and his span of service as 25 years, from December,1966 to July, 1990, directed the third respondent/employer to pay a sum ofRs.8,126/- to the petitioner within thirty days from the date of the order.3.4. Against the said order dated 30.3.1992, the petitioner and thethird respondent/employer preferred appeals before the firstrespondent/Appellate Authority. While the petitioner preferred the appealbeing aggrieved against the non-consideration of his service during theperiod from 1956 to 1965 for the purpose of calculating gratuity,contending that the third respondent/Management ought to have produced theservice records, and sought to modify the order of the second respondentand to allow his claim in full with interest, the thirdrespondent/employer preferred the appeal contending that thirdrespondent/employer is a charitable institution and cannot be construed asan establishment and therefore, the provisions of the Act are notapplicable to the case on hand. https://hcservices.ecourts.gov.in/hcservices/

3.5. The first respondent/Appellate Authority, by order dated4.1.1993, even though held that the provisions of the Act would apply tothe third respondent/employer, remitted the matter to the secondrespondent/original authority to determine the length of service based onthe service records.3.6. After remittance, the second respondent/original authority, byorder dated 15.6.1993, finding that no fresh materials were produced,confirmed its earlier order dated 30.3.1992, and the same was confirmed bythe first respondent/ appellate authority by order dated 30.12.1993.3.7. Exasperated, the petitioner has preferred a writ petition inW.P.No.1273 of 1995 seeking issue of a writ of Certiorari to call for therecords pertaining to the order of the first respondent in P.G.ApealNo.11/1993, dated 30.12.1993 and to quash the same as illegal, void andultra vires.3.8. The learned Single Judge, by order dated 5.6.2002, finding thatthe second respondent/original authority and the firstrespondent/appellate authority reached at a conclusion on the basis of thematerials placed before them and observing that the issue raised is purelya question of fact, dismissed the writ petition. Hence, the presentappeal.4. Mr.D.Rajagopal, learned counsel for the petitioner, fairly submitsthat the question of facts as to the daily wage and length of service ofthe petitioner cannot now be agitated before this Court. However, hecontends that the right of the petitioner to seek interest under Section 7(3-A) of the Act from 9.7.1990, viz., the date on which the gratuity hasbecome payable, cannot be denied and both the second respondent/ originalauthority and the first respondent/appellate authority in their ordersreferred to above, have not dealt with the issue regarding interest onthe gratuity amount payable to him. In this regard, the learned counselfor the petitioner places reliance on the decision in H.Gangahanume Gowdav. Karnataka Agro Industries Corpn. Ltd., AIR 2003 SC 1526, wherein it isheld that the claim for interest for the delayed payment of gratuity isstatutory and award of interest is mandatory on the part of theauthorities. 5. There is no representation on behalf of the respondents.6. We have given our careful consideration to the submissions made onbehalf of the petitioner and waded through the materials produced beforeus.7. It is well settled proposition of law that in a petition underArticle 226, the Court has jurisdiction to try issues both of fact andlaw. When the petition raises complex questions of fact which may, fortheir determination, require oral evidence to be taken and on that accountthe Court is of the view that the disputed statement may not be https://hcservices.ecourts.gov.in/hcservices/ appropriately tried in a writ petition, the Court should ordinarilydecline to try the petition. Thus, a Court is not deprived of itsjurisdiction to entertain a petition under Article 226 merely because inconsidering the petitioner’s right, question of fact may fall to bedetermined. Ultimately, the question is one of discretion which is to beexercised in conformity with judicial principles [vide New OkhlaIndustrial Development Authority v. Kendriya Karamchari Sahkari GrihNirman Samiti, (2006) 9 SCC 524].8. In the case on hand, the second respondent/original authority aswell as the first respondent/appellate authority came to the conclusionthat the petitioner is entitled to gratuity, but they have not awarded anyinterest to the petitioner. In our considered opinion, the order of thefirst respondent/appellate authority dated 30.12.1993 borders onperversity to that extent and cannot be sustained, as payment of gratuitywith or without interest, as the case may be, does not lie in the domainof discretion but it is a statutory compulsion. Specific benefitsexpressly given in a social beneficial legislation cannot be ordinarilydenied. Employees on retirement have valuable rights to get gratuity andany culpable delay in payment of gratuity must be visited with the penaltyof payment of interest [vide H.Gangahanume Gowda v. Karnataka AgroIndustries Corpn. Ltd., AIR 2003 SC 1526].For the aforestated reasons, we allow this appeal and modify theorder of the first respondent/appellate authority dated 30.12.1993,thereby granting interest payable as per the provisions of the Act on theamount awarded from the date of termination, viz., 9.7.1990, till the dateof the award, viz., 30.12.1993. The third respondent/employer shallworkout the amount payable and pay the same to the petitioner within threemonths from the date of receipt of copy of this judgment. This writ appealis allowed to the extent indicated above. No costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrarsasi https://hcservices.ecourts.gov.in/hcservices/ To:1. The Deputy Commissioner of Labour (Appellate Authority under Payment of Gratuity Act), Tiruchirapalli-20.2. The Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act, 1972) Tiruchirapalli-20.+ 1 cc to Mr.D.Rajagopal Advocate SR.NO.53113NSM(CO)RD 6.9.07W.A.No.3934 of 2004