Managing Director, Mahanadi Coalfields Limited v. Rabindranath Choube
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 757 of 2019 The Chairman-cum-Managing Director, M/s Heavy Engineering Corporation Ltd., having its office at HEC HQRs., Plant Plaza Road, Dhurwa, P.O. & P.S. – Dhurwa, District – Ranchi through its Incharge Law Amit Kumar Srivastava, son of Late Dr. H.S. Verma, aged about 43 years, resident of Qr. No. E – 182, Sector – II, HEC Colony, Dhurwa, P.O. & P.S. – Dhurwa, District - Ranchi … … Appellant Versus 1. Union of India, Ministry of Labour & Employment through its Regional Labour Commissioner (Central), Ranchi having its office at E-191/Sector – II, H.E.C. Colony, P.O. & P.S. – Dhurwa, District – Ranchi 2. Sri Avinash Chandra Deogharia, father’s name late S.C. Deogharia, Ex Chief of Township (General Manager P&A), Qr. No. E – 31, Sector – 3, P.O. – Dhurwa, P.S. – Dhurwa, District … Respondents … Ranchi 834004 --- CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the Respondents --- : Mr. Shresth Gautam, Advocate : Mr. Vijay Bahadur Singh, Advocate --- Order No. 06/04th September 2023 Per Anubha Rawat Choudhary, J. 1. This Letters Patent Appeal has been filed against the judgment dated 29th August 2019 passed in W.P.(C). No.338 of 2019 whereby
Decision
the writ petition filed by the appellant has been dismissed. 2. The learned counsel for the appellant, while assailing the impugned judgment passed by the learned writ Court, has submitted that the respondent–employee had attained the age of superannuation on 31st January 2017 and the amount of gratuity was not payable to him on account of the fact that the departmental proceeding was contemplated against the said employee. He submits that the authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as “the Act of 1972”) has directed payment of gratuity amount to the extent of Rs.10,00,000/- with interest @ 10%. Against the said order of the authority an Appeal was filed, but the appellate authority declined to entertain the Appeal on account of non-deposit of the 2 L.P.A. No. 757 of 2019 statutory pre-deposit in terms of section 7 (7) of the Act of 1972. The learned counsel has submitted that on the date the petition for payment of gratuity was filed by the respondent-employee before the authority, the petition itself was not maintainable. However, subsequently the order of punishment has been passed against the respondent-employee on 18th October 2018. 3. The learned counsel has relied on judgments passed by the Hon'ble Supreme Court in “Chairman-cum-Managing Director, Mahanadi Coalfields Limited Vs. Rabindranath Choubey” (2020) 18 SCC 71 and “Secretary, Local Self-government Department and others, State of Kerala Vs. K. Chandran and others” (2022) 12 SCC 104 to submit that the due date for payment of gratuity was yet to crystalize on account of the contemplated disciplinary proceedings but, in the meantime, the impugned order was passed which is illegal and without jurisdiction. 4. The learned counsel submits that the learned writ Court interpreted the provision of section 7 of the Act of 1972 but erroneously held that the appellant was to deposit the entire amount inclusive of interest in order to maintain the Appeal. The learned counsel submits that the interest component was not required to be deposited and, therefore, the impugned order calls for interference. 5. The learned counsel appearing on behalf of the respondent- employee, on the other hand, has submitted that the amount of gratuity of Rs.10,00,000/- was payable to the employee is not in dispute and the application was filed at the time when the disciplinary proceeding was only in contemplation and, therefore, the judgments which have been relied on by the appellant do not apply to the facts and circumstances of this case. He has relied on the judgment passed by the Hon'ble Supreme Court in “UCO Bank and another Vs. Rajinder Lal Capoor” (2007) 6 SCC 694. 6. The learned counsel has submitted that the arguments which have been advanced by the appellant are essentially to be seen at the appellate stage and the learned Single Judge has also granted liberty to the appellant to approach the appellate authority by making the required pre-deposit. The learned counsel has submitted that statutory Appeal is admittedly available to the appellant which the appellant 3 L.P.A. No. 757 of 2019 may avail, and the aforesaid issue may not be decided at this stage in this Letters Patent Appeal. 7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the respondent-employee had approached the authority under the Act of 1972 for claiming gratuity amount to the extent of Rs.10,00,000/- with interest. It appears that at the relevant point of time, the departmental proceeding against the respondent-employee was contemplated. 8. The authority under the Act of 1972 directed payment of Rs.10,00,000/- with interest to the respondent-employee. The appellant filed statutory Appeal but the Appeal was not entertained on the ground that the statutory amount was not deposited. It is also clear from the records that the appellant did not even offer deposit of Rs.10,00,000/- much less deposit of Rs.10,00,000/- plus 10% interest. The learned writ Court has considered the provisions of section 7 (4) read with section 7 (7) of the aforesaid Act of 1972 and passed a detailed judgment in connection with the requirement of pre-deposit for maintaining the Appeal. The learned writ Court has held that the Appeal was maintainable upon deposit of the principal amount as well as interest amount. 9. This Court has gone through the judgment passed by the learned writ Court and do not find any error in the said judgment holding that the statutory appeal was maintainable upon pre-deposit of the principal amount as well as interest amount. The learned writ Court has given liberty to the writ petitioner, which is the appellant before this Court, to approach the appellate authority after complying with the conditions of pre-deposit in terms of section 7 (7) of the Act of 1972. 10. This Court is of the considered view that the matter regarding payment of gratuity involves consideration of the rules which govern the parties and such exercise has rightly not been undertaken by the learned writ Court when efficacious appellate remedy is available to the appellant. The appellate authority having declined to entertain the appeal on account of non-deposit of statutory pre-deposit, the learned writ Court decided the point regarding pre-deposit and has rightly 4 L.P.A. No. 757 of 2019 given liberty to the appellant to approach the appellate authority after complying with the conditions of pre-deposit in terms of section 7 (7) of the Act of 1972. Moreover, the applicable rules regarding payment of gratuity to the respondent-employee are required to be considered by the authority at the first instance and the appellate remedy as provided under the Act of 1972 is efficacious and appropriate. This Court also finds that before the learned writ Court, it was submitted on behalf of the appellant that there was no difficulty in approaching the appellate authority by depositing the amount of gratuity exclusive of the interest @ 10% (simple) since the mandate of the Act of 1972 does not provide to deposit the amount of gratuity along with any interest in addition to that. On the basis of such submissions, the learned writ Court confined its adjudication to the requirement of pre-deposit while filing Appeal under the Act of 1972 i.e. whether it would be Rs.10,00,000/- or Rs.10,00,000/- plus 10% interest. The learned writ Court considered the provision dealing with the requirement of pre- deposit while availing the remedy of Appeal and held as follows:- 6. This Court for answering this question, deem it fit and proper to refer the provision of Section 7 (7) which reads as under: “7 (7) Any person aggrieved by an order under sub- section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf: Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days. [Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate authority such amount.]” It is evident from sub-section 7 of Section 7 which provides that if a person is aggrieved by an order under sub-section 4 may, within sixty days from the date of receipt of the order prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf, which contains two provisos and the relevant herein is the second proviso, which contains a condition for entertaining the appeal to the effect that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount. 5 L.P.A. No. 757 of 2019 7. It is evident from second proviso to sub section 7 to Section 7, wherein it has been stipulated that an amount equal to the amount of gratuity is required to be deposited under sub section 4, therefore, sub section 4 of Section 7 also needs to be referred herein which reads as under: “7 (4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. [(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.] [(c)] The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.] [(d)] The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto. [(e)] As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit- (i) to the applicant where he is the employee; or (ii) where the applicant is not the employee, to the [nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.” It is evident from sub section 4 to Section 7 that percolates about in situation of disbursement of gratuity payable to an employee or about the admissibility of the claim or in relation to an employee for payment of gratuity, in case of such dispute with regard to any matter or specified in Clause (a) the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding their dispute and the controlling authority shall, after due enquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such enquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount, the word “any amount is found to be “payable” to the employee which the controlling authority is directed to be paid to the employee by the employer” will be said to be the amount required to be deposited under sub section 4 as provided under second proviso to sub section 7 of Section 7. Such conclusion is based upon the reason that sub section 4 to Section 7 since provides the provision for adjudication of the dispute and after adjudication any conclusion is being arrived by the controlling authority with respect to determination of the amount of gratuity, the same will only be questioned before the appellate authority by the employer and therefore, the word “found to be payable” is of significance since the employer will be said to be aggrieved with the amount to be payable and if the amount to be payable is along with interest, the entire amount will be said to be payable by the employer 6 L.P.A. No. 757 of 2019 against which the appeal is to be filed as per the provision under sub section 7 of Section 7 of the Act, 1972.” 11. The learned writ Court found no reason to issue a writ of certiorari under Article 226 of the Constitution of India to quash the order requiring pre-deposit of Rs.10,00,000/- plus 10% interest to maintain an Appeal under the Act of 1972, and left it open to the appellant to approach the appellate authority subject to fulfillment of the condition as stipulated under sub-section 7 of section 7 of the Act of 1972. 12. After having gone through the impugned order, this Court finds no reason to differ with the findings and observations of the learned writ Court. Accordingly, this Letters Patent Appeal is dismissed. 13. Pending I.A., if any, is closed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Saurav/Pankaj