Bombay High Court
Ajay Mittal Chandrapur vs Sau. Baby Ramaji Pakmode & Others on 8 June, 2016
Bench: Z.A. Haq
Judgment 1 wp1391.04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1391 OF 2004
Ajay Mittal,
Shakti Enterprises,
Ganesh Nagar, Tukumb,
Chandrapur.
ig .... PETITIONER.
// VERSUS //
1. Sau. Baby Ramaji Pakmode,
2. Sau. Jaishila Shankar Patil,
3. Sau. Gita Deochand Ramteke,
4. Sau. Rekha Bapurao Gajbhiye,
5. Sau. Jaiwanta Dongre,
6. Sau. Savita Kudmeke,
7. Sau. Uman Uttam Menghare,
8. Sau. Wanmala Markant Thaware,
9. Sau. Kanta Purushottam Meghare,
10. Sau. Girjabai Raipure,
11. Sau. Vatchala Rajesh Humne,
12. Sau. Sharda Rajesh Gadkari,
13. Sau. Sarja Choure,
14. Sau. Ratnamala Dabare,
15. Sau. Fulan Lehandas Bhoyar,
16. Sau. Lalita Shrawan Meshram,
17. Sau. Suryakanta Kewalram Ganvir,
18. Sau. Satyabhama Anandrao Ambade,
19. Shri Abaji Karuji Chaudhari,
20. Shri Shambha Shrirame,
21. Shri Ramesh Bapudas Humne,
22. Shri Sangat Bhadke,
23. Shri Kewalram Ganvir,
24. Shri Shrawan Jairam Meshram,
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Judgment 2 wp1391.04.odt
25. Shri Ramesh Bharve,
26. Shri Narayan Govinda Dakhor,
27. Shri Chandrabhan Tukaram Kshirsagar,
28. Shri Prakash Devidas Supare,
29. Shri Arun Ramraoji Nakate,
30. Shri Sheikh Chand,
31. Shri Ashok Jambhule,
All R/o. C/o. Chandrapur Super Thermal
Power Station, Maharashtra State Power
Generation Company Ltd., Chandrapur,
District : Chandrapur.
32. Assistant Commissioner of Labour,
Chandrapur (Controlling Authority
under the Payment of Gratuity Act)
33. Additional Commissioner of Labour,
Bhosla Chambers, Civil Lines,
Nagpur.
.... RESPONDENTS
.
______________________________________________________________
Shri S.S.Ghate, Advocate for Petitioner.
Shri N.D.Thombre, Advocate for Respondent No. 1 to 31.
Ms H.N. Prabhu, Advocate for Respondent Nos. 32 and 33.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JUNE 08, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
Judgment 3 wp1391.04.odt
2. The respondent Nos. 1 to 31 made claim for amount of
gratuity and interest thereon, contending that they had been in the
employment of the petitioner for more than 5 years and had been
working for more than 240 days in each year. The Controlling
Authority, by the order dated 29th September, 1999 upheld the claim of
the respondent Nos. 1 to 31 and directed the petitioner to pay the
amount of gratuity and to pay interest @ 12% per annum, the interest
being chargeable from 1st December, 1997.
This order was challenged by the petitioner before the
appellate Authority in appeal which is dismissed on 24 th December,
2003. The petitioner, being aggrieved by the above orders, has filed
this petition.
3. Shri S.S. Ghate, learned advocate for the petitioner has
submitted that the petitioner was not the employer, that the respondent
Nos. 1 to 31 have been working with the Maharashtra State Electricity
Board and the petitioner was given contract of some work for a
specified period and therefore, the claim of the respondent Nos. 1 to 31
was not maintainable against the petitioner. It is further submitted that
Judgment 4 wp1391.04.odt
the claim of the respondent Nos. 1 to 31 for the amount of gratuity was
not maintainable as the employee is entitled for the amount of gratuity
on his superannuation or on his retirement or resignation or on his
death or disablement due to accident or disease and in the present case
none of the above mentioned eventualities existed on the basis of
which the respondent Nos. 1 to 31 could have made the claim for
amount of gratuity. It is further submitted that the subordinate
authorities have committed an error by directing the petitioners to pay
interest on the amount of gratuity, overlooking that there was dispute
about entitlement of the respondent Nos. 1 to 31 to receive the amount
of gratuity. The learned advocate has submitted that the subordinate
authorities have not adverted to the point that the amount of gratuity
was not payable to the respondent Nos. 1 to 31 on termination of the
contract and none of the eventualities as contemplated by Section 4 of
the Payment of Gratuity Act, 1972 existed to make the respondent Nos.
1 to 31 entitled for the amount of gratuity on 1 st December, 1997, from
which date the interest is granted.
4. The learned advocate for the petitioner has pointed out
that six other employees had also made claim along with the
respondent Nos. 1 to 31 and it is found that the claim of those six
Judgment 5 wp1391.04.odt
employees was not genuine and considering this aspect, grant of
interest is not proper. Shri Ghate, learned advocate has further
submitted that Section 7 (3)(a) of the Payment of Gratuity Act, 1972
enables the authority to direct the employer to pay simple interest at
such rate not exceeding the rate notified by the Central Government
from time to time for repayment of long term deposits as notified by
the Government and without considering this provision, the
subordinate authorities have directed the petitioner to pay interest @
12% per annum which is unsustainable as there is nothing on record to
show that the Government had notified the above rate of interest at any
point of time. It is prayed that the impugned orders be set aside.
5. Shri N.D. Thombre, learned advocate for the respondent
Nos. 1 to 31 has supported the impugned orders and has submitted
that the Controlling Authority has considered all the material placed on
record and has rightly granted the amount of gratuity and interest to
the respondent Nos.1 to 31. It is submitted that the concurrent
findings recorded by the subordinate authorities are based on proper
appreciation of the evidence and the material on record and cannot be
said to be illegal or perverse which necessitates interference by this
Court in the extraordinary jurisdiction. It is further submitted that the
Judgment 6 wp1391.04.odt
amount of gratuity was deposited by the petitioner before the appellate
Authority and it has been withdrawn long back by the respondent Nos.
1 to 31. He has further pointed out that the amount of interest is
deposited by the petitioner before this Court and it is kept in fixed
deposit. It is prayed that the impugned orders be upheld and the
amount deposited by the petitioner with the registry of this Court be
disbursed to the respondent Nos. 1 to 31 along with interest on it.
6. Ms H.N. Prabhu, learned A.G.P. has submitted that the
respondent Nos.32 and 33 are adjudicatory authorities and have
nothing to do with the lis between the petitioner and the respondent
Nos. 1 to 31.
7. After going through the documents placed on the record of
the petition, I find that the contentions of the petitioner that the
respondent Nos. 1 to 31 had not been in the employment for more than
5 years and had not worked for more than 240 days in each year
cannot be accepted as the petitioner has failed to prove it before the
Controlling Authority. Though it is argued that the Controlling
Authority has committed an error in not accepting the documents on
the record which show that the respondent Nos. 1 to 31 had not
Judgment 7 wp1391.04.odt
worked for more than five years and for more than 240 days in each
year, it goes unexplained as to why the documents were not produced
at the appropriate stage. The Controlling Authority and the Appellate
Authority have dealt with all these aspects and I am not inclined to
consider this controversy.
8. The learned advocate for the petitioner alternatively
prayed for remanding the matter to the Controlling Authority to enable
the petitioner to prove his contention, however, in the facts of the
present case, I am not inclined to accept the request. It is the case of
the petitioner himself that the respondent Nos. 1 to 31 continue to be
in the employment of M.S.E.B. which is not impleaded as party to the
proceedings. The contentions of the petitioner show that the
respondent Nos. 1 to 31 had been in continuous employment of
M.S.E.B. for which the petitioner has worked on contractual basis for
more than five years. The learned advocate for the petitioner stated
that after 1997 i.e. after termination of the contract of the petitioner,
the M.S.E.B. has come up with the policy of putting a term in the
contract itself that the contractor would be liable to deposit the amount
of gratuity payable to the workers employed by the M.S.E.B. and who
have worked for the contractor during the period of contract with the
Judgment 8 wp1391.04.odt
M.S.E.B. Unfortunately, this policy was not in vogue prior to 1997.
The respondent Nos. 1 to 31 cannot be deprived of their legitimate
claim only because of the failure on the part of the M.S.E.B. to come
out with the policy of protecting the entitlement of the workers /
employees for the gratuity as per the provisions of the Payment of
Gratuity Act, 1972. It is not the case of the petitioner that the
respondent Nos. 1 to 31 are paid or will be paid gratuity by the
M.S.E.B. for the period for which the liability is fastened on the
petitioner. In these peculiar facts, the submission made on behalf of the
petitioner, relying on the provisions of Section 4 of the Payment of
Gratuity Act, 1972, is not being considered and the issue is kept open
to be considered in appropriate case.
9. As far as the order granting interest to the respondent Nos.
1 to 31 is concerned, I find that the subordinate authorities have not
considered that there was a genuine dispute regarding the liability of
the petitioner to pay the amount of gratuity on the termination of the
contract of the petitioner.
In my view, the subordinate authorities have committed an
error in directing the petitioner to pay the interest @ 12% per annum
Judgment 9 wp1391.04.odt
to the respondent Nos.1 to 31. This part of the order, in my view, is
unsustainable and has to be set aside.
10. Hence, the following order :
i) The directions given by the subordinate authorities
to the petitioner to pay the amount of gratuity to the
respondent nos. 1 to 31 are maintained.
ii) The directions given by the subordinate authorities
to the petitioner to pay interest @ 12% per annum to the
respondent Nos. 1 to 31, are set aside.
iii) The amount of Rs.1,38,885/-, deposited by the
petitioner with the Registry of this Court, be given back to
the petitioner along with interest, if any, accrued on it.
This amount be given to the petitioner after 90 days.
iv) The orders passed by the subordinate authorities are
modified accordingly.
The petition is partly allowed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
RRaut..
