Bombay High Court

Chief Executive Officer vs The Assistant Labour ... on 27 November, 2013

Bench: R.V. Ghuge

                                           ( 1 )                     Writ Petition No.1855 of 2012




                                                                                  
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD




                                                        
                     WRIT PETITION NO.1855 OF 2012

    Chief Executive Officer,




                                                       
    Zilla Parishad, Beed                                              PETITIONER
                                        
           VERSUS




                                           
    1.     The Assistant Labour Commissioner,
                          
           and Controlling Authority
           (Under Payment of Gratuity Act 1972)
           Latur
                         
    2.     Madhukar Dhondiram Nagargoje,
           Age-60 years, Occu-Retired,
           R/o.Nagdara, Tq.Parli (V.)
      


           Dist.Beed                                                RESPONDENTS

Mr.S.S.Dambe, Advocate for petitioner.

Mr.N.B.Patil, A.G.P. for respondent No.1.

Mr.N.L.Dhobale h/f. Mr.B.R.Kawre, Advocate for respondent No.2.

(CORAM : RAVINDRA V.GHUGE, J.)

DATE : 27/11/2013

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard by consent of the

parties.

2. Admitted fact emerging from the petition is that the judgment

and order dated 23/08/2011 passed by respondent No.1 Assistant

( 2 ) Writ Petition No.1855 of 2012

Labour Commissioner and Controlling Authority under the Payment of

Gratuity Act, 1972 (Hereinafter referred to as "Gratuity Act"), Latur in

P.G.A.No.19/2010 has been challenged.

3. Short point that arises for my consideration is as to whether the

provisions of Section 7(7) r/w. the proviso thereunder of the Gratuity

Act can be by-passed to invoke the writ jurisdiction of this Court under

Article 226 and 227 of The Constitution of India.

4. In early days, this scheme was introduced in those

establishments only where the employers were so kind and generous

to the workers or there was an agreement between the employers and

the workers. This scheme was confined to the particular

establishments and even within those establishments, to certain

categories of staff. There was no general legislation for the payment of

Gratuity to all industrial workers. In due course of time, it was felt

that the workers should get gratuity as a right in return of their long

dedicated services to the industry. Industrial Tribunals and Supreme

Courts dealt with the disputes on the subject and their awards and

decisions brought revolutionary changes in Social Security

Legislations in Indian industrial sector.

5. In the case of Delhi Cloth and General Mills Co. Ltd. Vs

Workmen and others (AIR SC 1970 919) the Honourable Supreme

Court has held that the object of providing a gratuity scheme is to

provide a retiring benefit to the workman who has rendered long and

( 3 ) Writ Petition No.1855 of 2012

unblemished service to the employer and thereby contributed to the

prosperity of the employer. In the Working Journalists (Conditions of

Service) & Miscellaneous Provisions Act, 1955, the provision to pay

the gratuity to the working journalists was made.

6. After few years, the Government of Kerala enacted the Kerala

Industrial Employees Payment of Gratuity Act, 1970 making gratuity

a statutory right of the employees. West Bengal Government enacted

the West Bengal Employees Payment of Gratuity Act, 1971 relating to

the subject. The other states were also thinking to legislate such

enactments. Thus, it was felt that there should be a uniform central

legislation for the whole country instead of state legislations for each

and every separate states. The whole matter was discussed in the

Labour Ministers' Conference held on 24th August 1971 and

thereafter in the Indian Labour Conference held on 22nd and 23rd

October 1971 it was agreed that the central legislation on the

payment of gratuity should be undertaken. Accordingly, the

payments of Gratuity Act, 1972 was enacted, largely based on the

West Bengal legislation, which came into force on 16th September,

1972.

7. The payment of Gratuity Act,1972 is thus an enactment of the

Parliament. It has a specific scheme providing for payment of gratuity

to the employees engaged in different establishments/industries and to

deal with matters connected therewith. Nevertheless, the Parliament

has made provisions for dealing with several incidental issues,

( 4 ) Writ Petition No.1855 of 2012

naturally for entertaining disputes as regards admissibility of gratuity,

amount of gratuity and many others arising out of non payment of

gratuity. The machinery to deal with such cases is in place and there

is a mechanism provided for adjudicating upon such disputes.

8. Section 3 of the Gratuity Act defines the Controlling Authority.

Section 4 of the Gratuity Act provides for the payment of gratuity after

the determination of employment of an employee who has rendered not

less than 5 years in continous service. Similarly, section 7 determines

the amount of gratuity and sub section 7 enables a party to prefer an

appeal to the appropriate Government or such other authority as may

be specified by the appropriate Government in this behalf. Limitation

period of 60 days is provided with a pre-condition of depositing the

amount equal to the amount of gratuity as is determined.

9. Section 7(7) and its two proviso read as under :

"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

( 5 ) Writ Petition No.1855 of 2012

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

appellant authority such amount.]"

10. The question therefore is when a specific act has been put in

place to deal with all connected and incidental issues to payment of

gratuity, whether it would it be appropriate for any party, in order to

avoid the pre-condition of deposit of entire amount while filing appeal,

to by -pass the said provision and invoke the writ jurisdiction of this

Court.

11. The payment of gratuity and its provisions is a part of social

security legislation which not only has to be dealt with on a broader

spectrum, but with a high degree of sensitivity.

12. I have therefore no hesitation in concluding that this writ

petition, filed with an intent and object of avoiding deposit of the

determined amount while preferring an appeal, is not maintainable