Super Fastner Corporation vs Shashikant Salunke
2004 Latest Caselaw 809 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. A complaint under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was filed by Mr. Shyamrao Salunke who, it is admitted ground, had worked with the Petitioner as a hand cart puller-cum-helper for 30 years between 1969 and 1999. According to the employer the workman did not report for work while according to the workman he was unlawfully terminated in 1999. On this aspect no more need be said since the complaint is pending and the issues that arise therein will be decided on merits by the Labour Court. During the pendency of the complaint before the Labour Court, the workman expired on June 13, 2002 and is survived by his widow and sons. The legal representatives have been brought on record on July 17, 2002. An application was moved before the Labour Court for a direction to the employer to deposit the legal dues of the deceased workman since his heirs were facing economic starvation. The application was rejected by the Labour Court on January 1, 2003. In revision, the Industrial Court by its order dated April 17, 2004 directed the employer to deposit the amount due and payable by way of gratuity by making the appropriate computation as of the end of April, 1999. Permission has been granted to the legal representatives to withdraw the amount upon deposit.

2. On behalf of the employer, it has been sought to be asserted that the employer was under no legal obligation to pay any amount by way of gratuity; that the Payment of Gratuity Act, 1972 is not applicable and that the Industrial Court has no jurisdiction to issue such a direction. During the course of hearing, counsel appearing on behalf of the Respondent has placed on the record a compilation of documents including a circular issued by Nagdevi Merchants' Associations on September 7, 1998 to its constituents including the Mill Gin Stores Merchants Association. The circular refers to an arbitration award of Shri K.M. Desai which was thereafter the subject matter of a challenge before this Court and which culminated in a judgment of Mr. Justice A.P. SHAH. Counsel appearing on behalf of the Respondent has placed on the record a copy of the Consent Terms which were arrived at before this Court on August 17, 1998 as well as the circular dated September 7, 1998 of Nagdevi Merchants' Associations. In so far as is material the circular makes the following provisions in regard to the payment of gratuity:'

"Gratuity shall be payable to an employee on the termination of his employment after he has completed continuous service for not less than five years.

(a) On his superannuation or,

(b) Retirement or resignation or,

(c) Upon the death or disablement due to accident or disease,

(d) Upon retrenchment, discharge or dismissal at the rate of 15 days wages for every completed year of service or part thereof at excess of six months based on the rate of wages last drawn by the employees."

3. In response to a specific query of the Court, counsel appearing on behalf of the Petitioner repeatedly stated that the Petitioner is not a member of Nagdevi Merchants' Associations and is, therefore, not bound by the circular dated September 7, 1998. However, the Court had called upon the counsel to seek specific instructions from the sole proprietor of the Petitioner who is personally present in the course of the hearing. On seeking instructions, it has transpired that the Petitioner is in fact a member or the Mill Gin Stores Merchants' Association, which as already noted earlier is a constituent of Nagdevi Merchants' Associations. Perhaps, a greater degree of care ought to be taken before statements are made before the Court in response to a query of the Court. Be that as it may, it is now abundantly clear that the terms in regard to the payment of gratuity which are adverted to in the circular dated September 7, 1998 bind the Petitioner as a member of the Mill Gin Stores Merchants' Association. In a matter such as the present, where an employee has expired after rendering 30 years of service, the least that his heirs would be entitled on any view of the matter would be the payment of the legal dues. The Labour Court and the Industrial Court are not powerless in such cases to ensure the passing of a just order, in the absence whereof the heirs of a deceased employee would have to face starvation. The Courts which are constituted under the Industrial Law are Courts of justice and the Court would be failing in its obligation if it were not to pass an order which is manifestly reasonable and fair in a case such as the present. The direction in regard to the deposit of the amount of gratuity cannot, therefore, be faulted. I do not find any reason to interfere with the impugned order passed by the Industrial Court. The petition is rejected.

4. Parties to act on a copy of this order duly authenticated by the Associate/Personal Secretary of this Court.