Devidayal Stainless Steel ... vs Sharda S. Rao And Ors.
2001 Latest Caselaw 158 Bom

ORDER

A.M. Khanwilkar, J.

Rule. Rule returnable forthwith by consent.

1. This petition under Article 227 of the Constitution of India takes exception to the order passed by the Appellate Authority under the : Payment of Gratuity Act, 1972 dated November 4, 2000 in PGA Appeal No. 4-21 of 1999.

2. The respondent No. 1 herein filed an application being PGA Application No. 99 of 1997 before the Controlling Authority under the provisions of the Payment of Gratuity Act, 1972 praying that the petitioner be directed to pay an amount of Rs. 1,00,000/- being the gratuity payable to her late husband Shri Rao, along with interest at the rate of 18% per annum from the date the gratuity became due till the Opponent Company pays the said amount. The Controlling Authority allowed the said application. Against the said decision, the petitioner took the matter in appeal before the Appellate Authority which in turn dismissed the appeal preferred by the petitioner.

3. Broadly stated the facts which are relevant for adjudication of the present matter are that the husband of respondent No. 1 was in service as Personnel Manager in the Petitioner Company. Sometime on August 21, 1990, respondent No. 1's husband wrote a letter to the Managing Director, which is purported to be resignation letter. The letter clearly asserts that the age of superannuation is January 24, 1992. On the said basis, respondent No. 1's husband gave notice to the Managing Director of the Petitioner Company that he wanted to resign due to the violent and aggressive situation while carrying on his duties which was experienced by him for last few years. The letter states that it was causing severe tension, stress and strain and was affecting his health and therefore he wanted to voluntarily retire from service. In other words, the letter is clearly in the nature of resignation letter with the condition that the voluntary retirement from service be treated to have come into effect after three months from the date of the letter and he may be allowed to enjoy his leave due to exigencies of work during the said period. In continuation of the said letter, Respondent No. 1's husband sent another letter to the Managing Director of the Petitioner Company on August 28, 1990. The tenor of the said letter clearly indicates that respondent No. 1's husband acted upon his intention to resign reflected in letter dated August 21, 1990 and in the process handed over the charge to Mr. Monterio, Administrative Officer of the petitioner-company. It is however stated that respondent No. 1's husband sent another letter on November 16, 1990 addressed to the Managing Director in effect withdrawing the letter of resignation dated August 21, 1990.

4. There is dispute between the parties about the receipt of the said letter. The respondent No. 1 contends that the said letter dated November 16, 1990 was handed over to one Mr. Mukhi, who was the Personnel Manager looking after the Reay Road Office. It is not in dispute that respondent No. 1's husband was working at Kanjurmarg Office which is a different unit of the Petitioner-Company. However, details of this aspect would be highlighted a little later. The fact remains that the resignation letter issued by respondent No. 1's husband is not disputed. If the said letter was to be given effect to, the respondent No. 1 's husband was to retire voluntarily on November 21, 1990, J i. e. three months after the date of resignation on August 21, 1990. In which case, the relationship of employer and employee between the parties would have come to an end. Even assuming that respondent No. 1's husband can be said to have withdrawn his resignation on November 16, 1990, even then he would have attained the age of superannuation and retired on January 24, 1992.

5. On the other hand, respondent No. 1 contends that since there was no formal communication sent by the petitioner of terminating services or terminating the relationship, the services of respondent No. 1's, husband continued till the date when he died on August 15, 1994. Both the authorities have accepted this stand taken by respondent No. 1. The Appellate Authority has in substance concluded that respondent No. 1's husband was employed in Executive post and was not covered by the provisions of standing Order and that the practice was not to retire the Executive Officer on reaching certain age. In other words, both the Authorities have proceeded on the assumption that there was no practice to retire Executive: Officers on attaining the age of 58 years, which was obviously inconsistent to the stand taken by the respondent No. 1's husband in this letter of resignation.

6. Therefore, the crucial question that arises for consideration is whether there was practice of retiring Executive Officers on attaining the age of 58 years. In this behalf, it will have to be noticed that there is no specific pleading in the complaint filed before the Authorities below. There is no specific averment that the practice in the Petitioner Company was to continue the Executive Officers beyond the age of 58 years. On the other hand, the complaint merely asserts that the Petitioner Company did not terminate the services of late Shri Rao and that late Shri Rao continued to be in the employment of the Petitioner Company till the date of his sad demise. There is no dispute that the provisions of the standing orders have no application with regard to the persons holding the executive post. Therefore, the only question that falls for consideration of this Court is the correctness of the finding recorded by the Authorities below that in the absence of the communication from the Petitioner Company informing the deceased employee regarding superannuation, the respondent No. 1's husband continued in employment till the date of his death on August 15, 1994.

7. Having considered the relevant records, including the pleadings and evidence on record, I have no hesitation in concluding that the stand taken by respondent No. 1 is totally misconceived. In fact, respondent No.1 cannot be permitted to take a stand which is not in conformity with the stand taken by the husband. The letters on record sent by her husband at the relevant time would clearly indicate that he had understood the policy of the Petitioner Company to mean that on attaining the age of 58 years, he would stand superannuated. It is on that basis that respondent No. 1's husband sent the letter of resignation. Even the subsequent letter sent by respondent No. 1's husband on August 28, 1990 would clearly support this position. Merely because the petitioner in its letter dated August 1, 1993 addressed to respondent No. 1' s husband mentioned that he had abandoned the services, does not presuppose that he was still continuing in service. On the other hand, the understanding between the parties was very clear that on attaining the age of 58 years, respondent No. 1's husband would stand superannuated. Even respondent No. 1 in her deposition has admitted that the date of superannuation of Mr. Rao was January 24, 1992. Having regard to this admission, it is not open for respondent No. 1 to contend that there was no age of superannuation on attaining a particular age. In other words, in absence of pleadings as well as positive evidence, it was wholly improper for the Authorities below to record a finding that the practice was not to retire the Executive Officers on reaching certain age. On the other hand, the material on record clearly indicates to the contrary.

8. Reliance was placed on the evidence of Mr. Mukhi. The Authorities below have relied on the said evidence of Mr. Mukhi who was Personnel Manager in the Head Office. However, the Authorities below have clearly overlooked the crucial aspect of the matter and committed error in holding that Mr. Mukhi had handed over the withdrawal letter dated November 16, 1990 to the Managing Director. In my view, this evidence of Mr. Mukhi cannot ] be given credence for the reason that Mr. Mukhi is interested to the extent when he says that there was no age of superannuation. It is not in dispute that Mr. Mukhi was concerned with the affairs of the Reay Road Branch and had no concern with the Kanjurmarg Office where respondent No. 1 's husband was employed. In the circumstances, there is nothing on record to indicate that Mr. Mukhi had any authority to receive the letter in question. Besides this, the Managing Director of the petitioner- Company has entered the witness box and has categorically asserted that no withdrawal letter was handed over to him by Mr. Mukhi. Thus the evidence of the complainant of delivery of withdrawal letter dated November 16, 1990 stands rebutted by the petitioner- Company. Admittedly no other positive evidence has been adduced by the respondent No. 1 to prove that the letter was delivered. Consequently it cannot be assumed that the respondent No. 1 's husband had withdrawn his resignation as alleged. In other words, the respondent No. 1's husband stood voluntarily retired from service with effect from November 21, 1990.

9. However, instead of elaborately going into the factual matrix of the case in this regard, I would think it apposite to examine the matter on purely legal basis. The fact remains that the resignation was tendered by respondent No. 1's husband. The letter dated November 16, 1990, assuming that it was delivered, would only indicate that the resignation letter dated August 21, 1990 stood withdrawn. Even assuming that the resignation stood withdrawn, the fact remains that according to the understanding between the parties, in particular that of the husband of respondent No. 1, the superannuation age of respondent No. 1 's husband was January 24, 1992. I have, therefore, no hesitation in recording that the respondent No.1's husband was fully aware that the age of superannuation was January 24, 1992, which is obvious from the letter dated August 21, 1990 itself, coupled with the evidence of respondent No. 1 where she admits that the superannuation age of her husband was January 24, 1992. Once this finding is recorded, it is not necessary to go into the other question as to whether respondent No. 1's husband continued in service because of not sending any communication determining the relationship of employer and employee between the parties. That occasion would not arise when the parties are ad idem on the principle that the superannuation date was January 24, 1992. Examining the records in this perspective, the findings recorded by the Authorities below cannot be sustained.

10. Once we over turn the conclusion reached by the Authorities below that due to non-sending of any communication determining the relationship between employer and employee, Respondent No. 1's husband continued in service till the date of his death, a fortiori, in any case, he stood retired on January 24, 1992. It is not in dispute that even if respondent No. 1's husband had retired on January 24, 1992, in that case respondent No. 1 would not be entitled for the relief claimed in the complaint, for the relevant provisions will have no application to the case on hand as it came into effect from May 24, 1994. Accordingly, the order passed by the Authorities below allowing the application cannot be sustained.

11. In the circumstances, the petition succeeds. The impugned orders are quashed and set aside. Rule made absolute in the above terms. No order as to costs.

12. Since this petition succeeds, it will be open to the petitioner to apply to the Appellate Authority to withdraw the amount which has already been deposited in that Court towards pre-deposit.

13. A copy of this order duly authenticated by the Sheristedar be made available to the parties.