Calcutta High Court (Appellete Side)

Rampada Sardar vs The State Of West Bengal & Ors on 8 October, 2021

                        IN THE HIGH COURT AT CALCUTTA
                       CONSTITUTIONAL WRIT JURISDICTION
                                 APELLATE SIDE

  The Hon‟ble JUSTICE SUVRA GHOSH

                               W.P.A. 12012 of 2021

                                 Rampada Sardar
                                        Vs.
                          The State of West Bengal & Ors.


  For the Petitioner:                     Ms. Senjuti Sengupta, Adv.
                                          Mr. R. Guha Thakurta, Adv.,



  For the Respondent No. 2 & 3:           Mr. Susovan Sengupta, Adv.

Mr. Bipin Ghosh, Adv., Hearing concluded on: 24.09.2021

Date: 08-10-2021

SUVRA GHOSH, J. :-

1. The petitioner‟s grievance is that he has been deprived of payment of

gratuity to which he is entitled on superannuation.

2. The petitioner who was an employee under respondent no. 5

superannuated on January 01, 2012 and was entitled to receipt of the

gratuity amount as per provision laid down under section 7(3) of the

Payment of Gratuity Act, 1972. Despite such specific provision, no gratuity

was paid to him for which he filed an application before the Controlling

Authority (respondent no. 2) which was registered as case no.

37/15/G/HOW and was disposed of on November 19, 2018. Despite

specific directions by the said order upon respondent no. 5 for payment of

gratuity to the tune of Rs. 3,37,207/- to the petitioner along with

admissible interest, the employer/respondent no. 5 failed and neglected to

disburse such amount for which the Controlling Authority issued

requisition for a certificate under section 8 of the Act of 1972 to the

Collector and District Magistrate, Howrah (respondent no. 3) for recovery of

the amount.

3. The petitioner submits that instead of taking steps for recovery of the

amount under section 8 of the Act, the Certificate Officer (respondent no.

4) pointed out certain defects in the requisition and sent back the same to

the Controlling Authority for rectification. The Certificate Officer observed

in his order dated 21-08-2019 that all the documents showing service of

notice upon the employer were photocopies of the original document and

therefore could not be taken into consideration. The Controlling Authority

furnished a reply to the said letter of the Certificate Officer on 16-09-2019

wherein he placed reliance on section 8 of the Act of 1972 and stated that

the "the duty and power of the Hon‟ble Collector are just restricted to

recover and pay the amount mentioned in the certificate issued by the

Controlling Authority along with compound interest, as arrears of land

revenue, and not beyond that." In reply to the said letter, the Certificate

Officer, vide order dated 21-10-2019, expressed his dissatisfaction with the

requisition and rejected the same.

4. Being aggrieved by such rejection the petitioner has come up before this

court praying for issuance of a writ in the nature of mandamus for

recalling/setting aside the impugned order passed by the Certificate Officer

and also writ in the nature of certiorari, calling upon respondent no. 4 to

execute the certificate dated 23rd April, 2019.

5. It is submitted on behalf of the petitioner that in view of section 8 of the Act

of 1972, the duty of the Certificate Officer is only to execute the Certificate

issued by the Controlling Authority for recovery of the amount as arrears of

land revenue, together with compound interest thereon. It is beyond the

jurisdiction of the Certificate Officer to question the legality, validity or

correctness of the certificate issued by the Controlling Authority. The Act of

1972 is a self contained Code and provides for determination of the amount

of gratuity. Though section 8 of the Act provides for recovery of the gratuity

"as arrears of land revenue" which is dealt with in paragraph 3 of

Schedule- I of the Act of 1913, the provision of the entire Act is not

applicable to the 1972 Act. Moreover, the reply sent to the Certificate

Officer by the Controlling Authority which is annexure P-3 to the writ

petition deals with proof of service of Form-R upon the employer. Referring

to the reply sent to the Certificate Officer on 16-09-2019, learned advocate

points out that nine or more employees listed in the said reply have been

granted their dues either in compliance with court orders or otherwise. The

other employees in the list stand on the same footing and deserve similar

consideration. Learned advocate has placed reliance on a judgment of the

Hon‟ble Supreme Court of India in Jaswant Singh Gill v/s. Bharat Coking

Coal Limited and others reported in 2007 (11) LLJ 206 and judgments of

coordinate benches of this court in Murlidhar Ratanlal Exports Limited

v/s. State of West Bengal and others in 2014 (2) LLJ 74 and Raghunath

Manjhi v/s. The State of West Bengal and Others in W.P.A. 4105 of 2021 in

support of his contention.

6. Per contra, learned counsel for the respondents submits that after

issuance of the certificate by the Competent Authority, the Bengal Public

Demands Recovery Act, 1913 comes into play as there is no provision for

execution of the certificate in the Act of 1972. The Certificate Officer who is

deemed to be a Court under section 57 of the Act of 1913 is well within his

jurisdiction to question the requisition issued by the Controlling Authority.

7. Learned counsel has drawn the attention of the court to the definition of

"Certificate Officer" in section 2 (3) of the 1913 Act. He has referred to

section 5 and section 6 of the Act and has submitted that on receipt of a

requisition in respect of any public demand payable to any person other

than the Collector, the Certificate Officer, upon satisfaction that the

demand is recoverable, shall cause the Certificate to be filed in his office. In

other words, the Certificate Officer does not act like a mere post office and

has the discretion to satisfy himself regarding the recovery of the demand

in question. Learned counsel futher states that in view of the provision laid

down under section 37 of the Act of 1913, a question arising between the

certificate-holder and the certificate-debtor regarding making, execution,

discharge or satisfaction of a certificate shall be determined not by suit but

by order of the Certificate Officer before whom such question arises. He has

also taken the court to section 51 of the 1913 Act which provides for an

appeal against an order made by a Certificate Officer. It is submitted that

petitioner should approach the District Magistrate under section 51 of the

Act for redressal of his grievance.

8. Respondent no. 5 who is the certificate-debtor has supported the

submission made on behalf of the Certificate Officer.

9. Section 8 of the Payment of Gratuity Act, 1972 reads as follows:-

"If the amount of gratuity payable under this Act is not paid

by the employer, within the prescribed time, to the person

entitled thereto, the controlling authority shall, on an

application made to it in this behalf by the aggrieved person,

issue a certificate for that amount to the Collector who shall

recover the same, together with compound interest thereon

[at such rate as the Central Government may, by notification,

specify], from the date of expiry of the prescribed time as

arrears of land revenue and pay the same to the person

entitled thereto;".

10. True, there being no provision for execution of a certificate under the Act of

1972, such execution is governed by section 14 of the Act of 1913. Section

14 of the 1913 Act is reproduced:-

"14. Modes of execution. - Subject to such conditions

and limitations as may be prescribed, a Certificate

Officer may order execution of the certificate-

(a) by attachment and sale, or by sale (without previous

attachment), of any property, or

(b) by attachment of any decree, or

(c) by arresting the certificate-debtor and detaining him in

the civil prison, or

(d) by any two or all of the methods mentioned in clauses

(a), (b) and (c)."

11.There is no quarrel with the proposition that when a written requisition is

sent to the Certificate Officer for any public demand which is due under

the 1913 Act, the Certificate Officer, upon satisfaction that the demand is

recoverable, may sign the Certificate (sections 5 and 6 of the 1913 Act).

Section 51 of the Act states that an appeal lies against an order passed by

the Certificate Officer under the Act of 1913.

12. In the instant case, the petitioner filed an application before respondent

no. 2 for payment of gratuity under section 7 (3) of the Payment of Gratuity

Act, 1972 and the order of the Controlling Authority disposing of the prayer

of the petitioner on 19-11-2018 recites in clear and unambiguous language

that notice for appearance before the Controlling Authority in Form - „O‟

was served upon respondent no. 5 and several opportunities were granted

to the said respondent to appear before the Controlling Authority and

contest the application despite which respondent no. 5 failed and neglected

to appear before the authority even on a single occasion for which the

application was decided ex-parte by the Controlling Authority in favour of

the petitioner on merits. The documents on record further reveal that

notice for payment of gratuity in Form - „R‟ was served upon the fifth

respondent who did not care to comply with the same following which the

Controlling Authority sent a requisition for a certificate to the Collector and

District Magistrate, Howrah (respondent no. 3) for recovery of the gratuity

amount under section 8 of the Act of 1972. Respondent no. 3 delegated the

said power to respondent no. 4 as appears from the record. The entire

exercise is governed by the Payment of Gratuity Act, 1972 and the

Controlling Authority, in exercise of its jurisdiction under the said Act,

dealt with the application filed by the petitioner on merit and disposed of

the same by a speaking order which remains unchallenged till date.

13.Section 8 of the 1972 Act provides for recovery of the gratuity amount

decided by the Controlling Authority under the 1972 Act, by the Certificate

Officer. The authority of the Certificate Officer, in this case, is confined to

recovery of gratuity in execution of the certificate and nothing more. Fresh

adjudication by the Certificate Officer on merit of the application including

satisfaction regarding service of notice upon the certificate-debtor would

mean reopening the entire case and the Certificate Officer sitting in appeal

over the order of the Controlling Authority passed under the 1972 Act.

Revisiting the entire claim of the petitioner on any ground whatsoever by

the Certificate Officer at the stage of recovery of gratuity amount under

section 8 of the Act of 1972 is not enjoined in law. Section 14 of the Bengal

Public Demands Recovery Act, 1913 can be invoked only for the purpose of

recovery of gratuity by executing the certificate under section 8 of the 1972

Act as there is no provision for such recovery under the said Act. Merely

because the gratuity amount should be recovered as arrears of land

revenue as defined under the Act of 1913, the provisions of the Act of 1913

except section 14 can under no stretch of imagination be said to be

applicable in this case. No provision under the Act of 1972 empowers the

Certificate Officer to express any reservation with regard to the contents of

the certificate issued by the Controlling Authority and his authority is

confined to execution of the same under section 14 of the 1913 Act. The

Payment of Gratuity Act, 1972 is a self contained Code and special

enactment subsequent to the Act of 2013. Section 14 of the Act is set out:

"14. Act to override other enactments, etc.- The

provisions of this Act or any rule made thereunder shall

have effect notwithstanding anything inconsistent

therewith contained in any enactment other than this

Act or in any instrument or contract having effect by

virtue of any enactment other than this Act."

14.In view of the overriding provision of this Act, extension of the Act of 1913

to re-agitate the issue of payment of gratuity which is settled under section

7 of the 1972 Act is not enjoined in law and the same would amount to

repetition of the entire process leading to further harassment and

deprivation of the employee whose case has already been decided under

the 1972 Act. This proposition is declared in the judgments relied upon by

the petitioner.

15. It is also not in dispute that nine or more employees listed in the reply

sent to the Certificate Officer on 16-09-2019 have been granted their dues

either in compliance with court orders or otherwise. The petitioner is

similarly placed with the said employees and there is no reason why he

shall be deprived of the same benefit.