U.P.State Sugar Corportation ... vs Smt. Sukli Devi And Others.
2017 Latest Caselaw 7242 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 28
 

 
Case :- SERVICE SINGLE No. - 6173 of 1997
 

 
Petitioner :- U.P.State Sugar Corportation Ltd. Unit Maholi
 
Respondent :- Smt. Sukli Devi And Others.
 
Counsel for Petitioner :- P.K.Sinha
 
Counsel for Respondent :- C.S.C.,B.S. Rawat,Nilish Anand,Pradeep Kumar Tripathi
 

 

 

 
Hon'ble Abdul Moin,J.

1. Heard Sri P.K. Sinha learned Counsel for the petitioner and Sri Pradeep Kumar Tripathi learned Counsel for respondent no.-1.

2. By means of the instant writ petition the petitioner, U.P. State Sugar Corporation Ltd. has challenged the order dated 30.7.1997 passed by learned Labour Court Uttar Pradesh Lucknow in Misc. Case No.-28 of 1993 passed under Section 33-C(2) of the Industrial Disputes Act 1947, whereby the learned Labour Court has allowed the case filed by the deceased-husband of the opposite party no.-1 and has directed the petitioner to pay a sum of rupees 43,134.60/- towards salary and other benefits.

3. The case of the petitioner is that the husband of the opposite party no.-1 late Sri Ghurpatri was working in the Maholi Unit of the U.P. State Sugar Corporation Ltd. (hereinafter referred to as Corporation) as Khalasi in the Engineering Department. He was made permanent and thereafter retired on 30.6.1991 on completion of 60 years of age. After retirement the husband of opposite party no.-1 submitted No Dues Certificate from all departments except from the Labour Office which issues the certificate of no dues in regard to vacation of the quarter. It was in those circumstances that the gratuity due to late Sri Ghurpatri was not paid even though the said amount had been calculated and the cheque amounting to rupees 26,985.08/- had been prepared on 22.09.1991. It is further contended that after his retirement, Sri Ghurpatri never worked and was never in the employment of the factory and consequently he was not entitled for any further payment of wages etc. for the period after 30.6.1991.

4. It is further contended that being aggrieved against non payment of the salary for the period from 1.7.1991 to 31.5.1993 on the ground that till such time he is paid gratuity by the Corporation, he would be deemed to be in service and shall be entitled to full wages, Sri Ghurpatri preferred an application under Section 33-C(2) of the Industrial Disputes Act before the Labour Court. Sri Ghurpatri contended before the Labour Court that despite he having approached the petitioner for payment of the gratuity yet the gratuity was not paid and consequently under the provisions of the Standing Order No.-L.L.8, Sri Ghurpati would be deemed to be continuing in service and hence entitled for salary and other benefits.

5. It is further contended by the petitioner corporation that the said application was registered as Misc. Case No.-28 of 1993 and notices were issued to the petitioners in pursuance of which the petitioners filed their written statement controverting the allegations and specifically contending that Shri Ghurpatri had retired on attaining the age of superannuation on 30.6.1991 but had not vacated the residential quarter provided to him and was retaining the same illegally and unauthorizedly and simultaneously, Shri Ghurpatri had also preferred a claim for payment of the gratuity amount before the authority under the payment of Gratuity Act which was still pending.

6. Here it is pertinent to mention that during pendency of the said case Shri Ghurpatri died in the year 1994 and his wife Smt. Sukli Devi was substituted as the legal heir who is now the opposite party no.-1 in the instant writ petition.

7. The learned Labour Court after considering the pleadings and the evidence led by the parties arrived at a finding that as the gratuity had not been paid to Sri Ghurpatri when he retired from service on 30.6.1991 as such keeping in view the Standing Order No.-L.L.8 he would be deemed to be continuing in service till such time his gratuity was paid. The opposite party no.-2 also considered the relevant Standing Order cited on behalf of Shri Ghurpatri and the corporation namely Standing Order no.-L.L.8 and arrived at a finding that as soon as the retiring employee gave the No Dues Certificate, he would become entitled for being paid the gratuity and because gratuity had not paid to him as such he did not vacate the accommodation and accordingly on account of non payment of gratuity, he would be deemed to be in service, meaning thereby that gratuity was a condition precedent to the workman vacating the quarter and as the petitioner did not pay the gratuity there was no occasion for the workman to vacate the accommodation hence the workman would be deemed to be continuing in service and consequently directed for payment of Rs. 43,134.60/- towards salary and other benefits while deciding the case vide order dated 30.7.1997. It is this order which has been challenged by the petitioner corporation.

8. On the other hand it has been contended by Sri Pradeep Kumar Tripathi learned Counsel for the opposite party no.-1 that the provisions of the Standing Order No.-L.L.8 are categoric in as much as it is only when the Management ( in this case the petitioner) pays the gratuity that the workman is expected to vacate the accommodation and once admittedly the Management did not pay the gratuity as such there was no occasion for the late Shri Ghurpatri to vacate the accommodation and consequently he would be deemed to be in service so long as the employer does not pay the gratuity and hence the award of the Labour Court dated 30.7.1997 is perfectly justified and merits no interference.

9. A supplementary counter affidavit has also been filed on behalf of the opposite party no.-1 contending that the authority under the Payment of Gratuity Act had decided the case filed by Shri Ghurpatri directing for payment of gratuity and the appeal preferred by the petitioner corporation has also been dismissed vide order dated 17.6.2004, in appeal no.-08 of 2001.

10. Having heard the learned Counsels and having perused the record, it transpires the entire case hinges upon the interpretation of standing order no.-L.L.8 which is admittedly applicable on the parties. For convenience sake Standing Order No.-L.L.8 is being reproduced below:-

"L.L.8 : The management shall pay the amount of gratuity to a retiring workman as may be found due to him by the management on receipt of a clearance slip from the workman in respect of articles of stores, advances etc. and the workman shall simultaneously vacate his quarter and handover its possession to the management. The retiring workman shall be deemed to be in service and shall be entitled to full wages and all fringe benefits as long as the employer does not tender the due amount of gratuity to him, but receipt of payment of gratuity found due to the employer shall not prejudice the right of the workman to raise a dispute about it, if he considers the amount disputable even on vacation of the quarter and exit from the service.

If a workman does not vacate his quarter and handover its possession to the management on the date of retirement despite tendering the amount of gratuity, he shall not be deemed in service after the date of retirement."

11. A perusal of the said Standing Order indicates that it stipulates that the Management shall pay the amount of gratuity to a retiring workman as may be found due to him by the Management on receipt of a clearance slip from the workman in respect of articles of stores, advances etc. and the workman shall simultaneously vacate his quarter and handover its possession to the Management. Thus, the condition precedent to the Management paying gratuity to a retiring workman is a receipt of a clearance slip from the workman in respect of the articles of stores, advances etc. and the workman vacating his quarter and handing over its possession to the Management. The words "on receipt of a clearance slip from the workman in respect of articles of stores, advances etc. and the workman shall simultaneously vacate his quarter and handover its possession to the Management" thus stipulate that the payment of gratuity would only be on receiving of a clearance slip from the workman in respect of the articles of stores advances etc. and the workman simultaneously vacating his quarter and handing over its possession to the Management. Thus, in case the workman fails to give the clearance slip and hands over the quarter to the Management, the gratuity would not be payable by the Management. In the instant case, it is admitted that though Shri Ghurpatri had given the clearance slip in respect of the articles of stores, advances etc. yet he did not vacate his quarter and handover its possession to the Management.

12. Thus what this Court would have to consider would be the words "and" as used in Standing Order L.L.8 taking into consideration the argument raised by the learned Counsel for opposite party no.-1 that Standing Order L.L.8 only stipulates payment of gratuity to a retiring workman on receipt of a clearance slip from the workman in respect of articles of stores, advances etc. and that there is no obligation to handover the vacant possession of the quarter which would only be done when he has been handed over the gratuity by the Management. Thus, the entire controversy hinges around the word "and". However, in the opinion of the Court, the interpretation of the word "and" may not detain us in as much as this aspect of the matter has been considered by the Hon'ble Supreme Court in a recent judgment reported in 2016 (1) SCC 780- Spentex Industries Ltd. Versus Commissioner of Central Excise and Others paragraphs- 28 to 32, wherein the Hon'ble Supreme Court after referring to the earlier judgment in the case of Union of India Versus Kamlabai Harjivan Parikh reported in AIR 1968 SC 377 held that the word "and" is normally conjunctive. The Cambridge Advanced Learner's Dictionary describes the word "conjunction" as a "connecting word- a word such as "and" , "but" , "while' or ''although' that connects words, phrases and clauses in a sentence". As such, the word ''and' , as used in Standing Order L.L.8 would be used for combining both the parts of the sentence and thus vacation of the quarter cannot be read in isolation. As such, the word "and" as used in the Standing Order L.L.8 of the workman would entail simultaneous vacation of quarter and handing over its possession to the Management alongwith receipt of the clearance slip in respect of articles of stores, advances etc., meaning thereby that the Management would be bound to pay the amount of gratuity to a retiring workman on receipt of a clearance slip from workman in respect of articles of stores, advances etc. and the workman simultaneously vacating his quarter and handing over its possession to the Management.

13. Thus the word "and" is to be treated as used in a conjunctive manner meaning thereby that it is joined with the words "on receipt of the clearance slip in respect of articles of stores, advances etc."

14. Admittedly, as already indicated above, neither the quarter was vacated nor was its vacant possession handed over to the petitioner Corporation Management and consequently there was no occasion for the petitioner Corporation Management to pay the gratuity to the workman, Shri Ghurpatri. It is only when the workman, on having given a clearance slip and having vacated and handed over the accommodation to the Management, is not paid the gratuity that it can be said that a workman would be deemed to be continuing in service and entitled for all the wages including fringe benefits. The said situation having not arisen in the case, the Court is of the opinion that the learned Labour Court clearly misapplied itself while interpreting Standing Order No.-L.L.8 and holding that the gratuity was not paid by the Management upon Shri Ghurpatri giving the no dues certificate which entailed Shri Ghurpatri deemed to be in service. Thus, the Court holds that there was no occasion for the Labour Court to have directed for calculation of the salary and other benefits after the retirement of Shri Ghurpatri on 30.6.1991 and in passing the impugned order dated 30.7.1997 as challenged in the instant writ petition.

15. Shri P.K.Sinha, learned Counsel for the petitioner has also indicated that the interpretation of Standing Order L.L.8 has engaged the attention of this Court earlier in two writ petitions namely Writ Petition No.-3574(MS) of 2004 in Re: U.P. State Sugar Corporation and Anothers Versus Sukhbeer Singh and Another decided on 21.1.2008 as well as Writ Petition No.-5118(SS) of 1995 in Re: U.P. State Sugar Corporation Unit Mohali and another Versus Chajju Ram Sharma and Another decided on 18.5.2016, and that both the judgments have attained finality.

16. Keeping in view the aforesaid facts, circumstances and the discussions the writ petition is allowed and the order dated 30.7.1997 passed by the learned Labour Court is quashed and set aside.

No order as to costs.

Order Date:-24.11.2017

Jyoti/-