Calcutta High Court (Appellete Side)
And Rural Development Bank Ltd vs The State Of West Bengal & Ors on 23 November, 2022
9 IN THE HIGH COURT AT CALCUTTA
23.11.2022 CONSTITUTIONAL WRIT JURISDICTION
sb
Ct 550 APPELLATE SIDE
WPA 23522 of 2022
Burdwan Co-operative Agriculture
and Rural Development Bank Ltd.
Vs.
The State of West Bengal & Ors.
Mr. Saikat Banerjee
Mr. Arnab Ray
... For the petitioner.
Mr. Susovan Sengupta,
Mr. Manas Kumar Sadhu
... For the State.
Mr. Debobrata Saha Roy
Mr. Indranath Mitra
Mr. Saukha Biswas
... For the respondent no.4.
Affidavit of service filed in Court today is taken on
record.
An interesting question has come up for
consideration in the present application as to whether a
settlement entered into by and between the employee on
the one hand and the employer on the other can have an
overriding effect insofar as payment of gratuity is
concerned, notwithstanding the terms of such settlement
not providing for better terms than provided for in the
payment of gratuity Act, 1972 (hereinafter referred to as
the "said Act").
Mr. Banerjee, learned advocate representing the writ
petitioner submits that the private respondent was an
employee of the writ petitioner company. By referring to a
settlement dated 30th November, 2011, it is submitted
that the parties on the basis of collective bargaining
determined that the gratuity limit will be raised from the
existing limit of 3.5 lakh to 6 lakh. The private respondent
no.4 has since retired from services. Consequent upon his
retirement, the petitioner has disbursed the entire gratuity
amount as admissible to him under the aforesaid
settlement. According to Mr. Banerjee, there is no due on
account of gratuity payable to the private respondent. He
says that the private respondent was himself a signatory
to the aforesaid settlement and as such cannot be
permitted to ignore such settlement and fallback on the
provisions of the said Act to claim additional amounts on
account of gratuity.
By relying on a judgment delivered by the Hon'ble
Supreme Court in the case of Beed District Central
Coop. Bank Ltd. Vs. State of Maharashtra and Others
reported in (2006) 8 SCC, 514, he submits that the
Hon'ble Supreme Court has recognized the authority of an
employee to opt for better terms insofar as payment of
gratuity is concerned. He also refers to the provisions of
sub-section (5) of Section 4 of the said Act. He submits
that the Appellate Authority under the said Act did not
take into consideration the principles laid down in the
judgment delivered in the case of Beed District Central
Coop. Bank Ltd. Vs. State of Maharashtra and Others
(supra) and by ignoring such decision has determined the
gratuity payable to the private respondent in the terms of
the provisions contained in the said Act. According to Mr.
Banerjee the Appellate Authority acted illegally and with
material irregularity in passing the aforesaid order. He
further submits that if the private respondent is permitted
to enforce the aforesaid order passed by the Appellate
Authority under the said Act, the present writ application
will become infructuous. As such, he prays for stay of the
operation of the order dated 31st August, 2022.
Per contra, Mr. Mitra, learned advocate representing
the private respondent submits that the private
respondent consequent upon his retirement was not
disbursed the entirety of his gratuity amount and other
benefits. In the circumstances as aforesaid, by a letter
dated 1st February, 2013, which is at page 46 of the
present writ application, had called upon the writ
petitioner to pay the lawful dues of the private respondent.
Since the writ petitioner did not disburse the lawful dues,
a writ application was filed. Subsequently, however, he
had proceeded before the Controlling Authority under the
said Act. Ultimately, the same was disposed of by an order
dated 7th September, 2021 passed by the Controlling
Authority, inter alia, directing the writ petitioner to pay the
differential amount of Rs.3,48,620/- on account of
gratuity along with additional interest of Rs.2,99,527/-.
Challenging the aforesaid order an appeal was preferred
which has since been dismissed by the Appellate
Authority. He further submits that the Appellate Authority
had taken into consideration all aspect of the matter
including the legality and/or validity of the bipartite
agreement between the parties and passed the final order.
He submits that the order passed by the Appellate
Authority is a reasoned order. Ordinarily, in such case, no
interference is called for. This Hon'ble Court ought not to
entertain the present writ application.
I have heard the submissions made by the
advocates appearing for the respective parties and
considered the materials on record. I find that in terms of
the provisions contained in Section 7 sub-Section (3) of
the said Act, the employer is obliged to pay the gratuity
within 30 days from the date it becomes payable. Private
respondent complains of delay in payment of gratuity. As
noticed earlier an interesting question has come up for
consideration as to whether a settlement entered into by
and between the employee on the one hand and the
employer on the other can have an overriding effect
insofar as payment of gratuity is concerned
notwithstanding the terms of such settlement not
providing for better terms than provided for in the said
Act, also requires to be answered.
Since, it is submitted on behalf of the petitioner that
a sum of Rs.3,48,620/- and a sum of Rs.2,99,527/- has
already been deposited by the writ petitioner with the
Controlling Authority and the aforesaid amounts have
already been secured, there shall be an interim order
restraining the private respondent from realizing the said
amount till disposal of the present application.
Mr. Mitra has already indicated that all documents
filed before the Controlling Authority and the Appellate
Authority are on record, as such he does not wish to file
affidavit in opposition.
Let the aforesaid writ application be listed in the
Combined Monthly List of December, 2022 under the
heading "For Hearing".
(Raja Basu Chowdhury, J.)
