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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th July, 2011
+ W.P.(C) 8591/2008
THE MANAGEMENT OF HOTEL ASHOK ..... Petitioner
Through: Mr. Karunesh Tandon, Advocate.
Versus
DEPUTY LABOUR COMMISSIONER
& ANR ..... Respondents
Through: Mr. L.A. Vashishtha and
Mr. Sunil Gautam, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition impugns, (i) the order dated 27th December, 2006 of the Controlling Authority under the Payment of Gratuity Act 1972 holding that the respondent no.2 Mr. Vinod Saxena is entitled to an amount of Rs.2,90,150/- as gratuity from the petitioner and directing the petitioner to WP(C)8591/2008 Page 1 of 6 pay the said amount to the respondent no.2 together with interest at 10% per annum till the date of payment; and (ii) the order dated 6 th February, 2008 of the Appellate Authority under the said Act dismissing the appeal of the petitioner.
2. A perusal of the orders shows that there was no dispute that the respondent no.2 upon superannuation from the employment with the petitioner was entitled to gratuity in the sum of Rs.2,90,143/-. The said gratuity was not paid by the petitioner owing to the respondent no.2 having not been able to obtain No Dues Certificate from the Chanakya Co-operative Thrift & Credit Society Ltd, as required to obtain as per the Form prescribed by the petitioner for release of gratuity. The orders further record that a sum of Rs.90,243/-was stated to have been due from the respondent no.2 to the said Society.
3. Though the counsel for the petitioner has argued that there is an agreement between the Society and the petitioner that the amounts due to the Society from its members who are employees of the petitioner shall be deducted from the salary and the remaining dues if any from the gratuity, but the said agreement has not been placed on record. The authorities under the Gratuity Act held the action of the petitioner of withholding the gratuity WP(C)8591/2008 Page 2 of 6 owing to the aforesaid reason to be invalid and not within the ambit of Section 4(6) of the Act.
4. The counsel for the petitioner while reiterating the same argument before this Court has in addition also contended that the orders passed by the Controlling Authority and the Appellate Authority are without jurisdiction inasmuch as in the case of the petitioner, being an establishment belonging to or under the control of the Central Government and having branches in more than one State, the "appropriate Government" in terms of Section 2(a) of the Act is the Central Government. It is contended that the respondent no.2 approached the Controlling Authority and the Appellate Authority appointed by the State Government and not by the Central Government and their orders are therefore liable to be set aside.
5. This Court while issuing notice of the petition had stayed the operation of the said orders. It is however informed that as a condition for filing the appeal, the amount in terms of the order of the Controlling Authority was deposited before the Appellate Authority and which had been released to the respondent no.2 even prior to filing of this petition. The counsel for the respondent no.2 however states that a further sum of approximately Rs.35,000/- is still due to the respondent no.2 in terms of the order of the WP(C)8591/2008 Page 3 of 6 Controlling Authority.
6. The counsel for the petitioner inspite of being called upon to, has been unable to show any provision in the Act whereunder the petitioner would be entitled to withhold or make such deduction from the gratuity amount due to the respondent no.2.
7. Section 4(6) of the Act permits only the amounts specified therein to be deducted from the amount of gratuity. The amount if any owed by the respondent no.2 to the Society aforesaid does not admittedly fall within the ambit of Section 4(6). The Supreme Court in Jaswant Singh Gill v. Bharat Coking Coal Ltd. (2007) 1 SCC 663 reiterated that the Act is a complete code creating not only a right to payment of gratuity but also laying down the principles for quantification thereof as also the conditions on which it may be denied. Right to gratuity is a statutory right and the Act contains an unequivocal and unambiguous mandate for payment of gratuity. The Supreme Court in the said judgment held that non statutory rules framed by the employer for withholding gratuity on grounds other than those provided under Section 4(6) cannot prevail over the provisions of the Act. It was held that Section 4(6) has to be scrupulously observed and if the conditions laid down therein are not satisfied, gratuity has to be paid. No error is thus found WP(C)8591/2008 Page 4 of 6 in the orders impugned, of the amounts if any due by the respondent no.2 to the Society being not deductible from the amount of gratuity payable by the petitioner.
8. It has been enquired from the counsel for the petitioner, as to why the present petition was preferred when the monies in terms of the orders impugned already stood paid. The counsel replies that this petition was necessitated owing to the respondent no. 2 having preferred complaint of unfair labour practice within the meaning of Section 2(ra) of the Industrial Disputes Act against the Managing Director of the petitioner. The counsel for the respondent no.2 has fairly stated that subject to the balance amount if any being released to the respondent no.2 within eight weeks of today, the respondent no.2 is not interested in pursuing the said complaint.
9. In the circumstances, it is not deemed expedient to adjudicate upon the plea, of the authorities whose orders are impugned being not competent to deal with complaints of withholding/non-payment of gratuity of employees of the petitioner.
10. Accordingly, the petition is disposed of as follows:
A. It is declared that the respondent no.2 is entitled to the entire gratuity amount as found due by the Controlling Authority together with interest at 10% per annum from the date of superannuation till WP(C)8591/2008 Page 5 of 6 the date of deposit of the amount by the petitioner with the Appellate Authority.
B. If there is any deficiency in the amounts so deposited, the same be paid to the respondent no.2 within eight weeks of today. The petitioner is directed accordingly.
C. If there is any controversy as to the amount due in terms of this order, the parties if unable to resolve the same themselves shall have liberty to approach this Court.
D. The respondent no.2 shall within two weeks from today withdraw the complaint aforesaid preferred by him.
No order as to costs.
RAJIV SAHAI ENDLAW, J JULY 11, 2011 M WP(C)8591/2008 Page 6 of 6