Calcutta High Court (Appellete Side)
Jadunath Dhali vs The State Of West Bengal & Ors on 4 December, 2023
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Raja Basu Chowdhury
WPA 3439 of 2020
Jadunath Dhali
Versus
The State of West Bengal & Ors.
For the petitioner : Ms. Senjuti Sengupta
Mr. Rananeesh Guha Thakurta
Ms. Dipa Roy
For the respondent : Mr. Bipin Ghosh
no.3.
For the respondent no. : Ms. Anamika Pandey
4 Ms. Amrita Pandey
Mr. Ghanshyam Pandey
Ms. Sneha Singh
Heard on : 4th December, 2023
Judgment on : 4th December, 2023.
Raja Basu Chowdhury, J:
1. The instant writ petition has been filed, inter alia, challenging the
order dated 21st October, 2019, passed by the respondent no.3,
whereby he had rejected the requisition for certificate issued under
Section 8 of the Payment of Gratuity Act, 1972 (hereinafter referred
to as the "said Act").
2. The petitioner claims to be an ex-employee of the respondent no.4.
According to the petitioner, after serving the respondent no.4 for 38
years, the petitioner was superannuated from service. At the time of
his superannuation his last drawn wages was Rs.206.81 per day.
3. Since, the gratuity was not disbursed in his favour he had filed an
application in Form "N" before the Controlling Authority for
determination of amount of gratuity payable to him. The aforesaid
proceeding was not contested by the respondent no.4 and the same
ultimately culminated in the order dated 16th November, 2018,
thereby determining a sum of Rs.2,52,317/- as due and payable by
the respondent no.4 on account of the gratuity payable to the
petitioner.
4. The aforesaid order records that despite service of notice in Form
'O', the respondent no.4 did not contest the said proceeding.
Consequent upon passing of the aforesaid order a notice in Form 'R'
was issued on 20th November, 2018 calling upon the respondent
no.4 to make payment of gratuity. According to the petitioner, since
the respondent no.4 did not act on the basis of the said notice, the
petitioner was compelled to file an application in Form 'T' before the
Controlling Authority for issuance of a certificate under Section 8 of
the said Act. The Controlling Authority upon issuance of the
Certificate had forwarded the same along with a requisition for
certificate to the Certificate Officer, being the respondent no.3, for
execution thereof.
5. The records reveal that the Certificate Officer had proceeded to
adjudicate on the validity of the said certificate and had ultimately
by the order dated 21st October, 2019, which is impugned in the
present writ petition, rejected the requisition for the said certificate.
6. Ms. Sengupta, learned advocate representing the petitioner submits
that the petitioner despite having its claim determined by the
Controlling Authority has till date not been able to reap the fruits of
such determination. The respondent no.4 had avoided the
Controlling Authority, which compelled the petitioner to seek
enforcement of such determination, by causing a certificate under
Section 8 of the said Act to be issued. When such certificate was
forwarded to the Certificate Officer, the same had been purportedly
rejected by the Certificate Officer. She submits that the Certificate
Officer had exceeded his jurisdiction in going into the question
whether the proceeding before the Controlling Authority had been
appropriately conducted or not. She submits that it is not within
the realm of the authority of the Certificate Officer to question the
determination made under Section 7 of the said Act.
7. By placing reliance on a judgment delivered by a Coordinate Bench
of this Court in the case of Murlidhar Ratanlal Exports Ltd. v.
State of West Bengal and Others, reported in 2014-II-LLJ-74
(Cal), she submits that it is well-settled that the said Act, is a self-
contained Code which provides for remedy by way of execution in
the mode and manner prescribed in Section 8 of the said Act and
the Certificate Officer is incompetent to question the determination
already made.
8. On the same proposition, she has also placed reliance in an
unreported judgment delivered by the Hon'ble Division Bench of
this Court in the case of Delta Limited v. Rampada Sardar &
Ors., in MAT 1242 of 2021 with CAN 1 of 2021.
9. In the given facts it is submitted that the order passed by the
Certificate Officer cannot be sustained and the same should be set
aside and quashed with a further direction upon the Certificate
Officer to forthwith take steps for execution of the certificate issued
under Section 8 of the said Act.
10. Mr. Ghosh, learned advocate representing respondent no.3
submits that there is no mala fide intention on the part of the
respondent no. 3 in rejecting the requisition for certificate. He
submits that the Certificate Officer in exercise of powers conferred
under Section 6 of Bengal Public Demands Recovery Act, 1913 had
rejected the requisition. In any event, it is submitted that the
Certificate Officer has since, proceeded with the execution of the
said certificate. By drawing attention of this Court to the warrant of
arrest dated 20th January, 2023, which is annexed at page 14 of the
report filed by the respondent no.3, he submits that since, the
respondent no.4 was not complying with the directions of the
Certificate Officer, the Certificate Officer has issued a warrant of
arrest for ensuring compliance of his directions and for execution of
the Certificate.
11. Ms. Pandey, learned advocate representing the respondent no.4
on the other hand submits that in the instant case, the respondent
no.4 had never been served with a notice in Form 'R'. As such, the
entire proceeding before the Certificate Officer including issuance of
certificate under Section 8 of the said Act is bad in law. Although, a
review application had been filed before the Controlling Authority,
the same has been illegally rejected. Challenging the aforesaid a
writ petition has since been filed which is pending consideration.
12. Heard the learned advocates appearing for the respective parties
and considered the materials on record. In this case it is noticed
that the claim of the petitioner arise out and in connection with the
employment of the petitioner with the respondent no.4. The
petitioner having superannuated from service of the respondent
no.4 on 12th July, 2006 and having not been disbursed his claim on
account of gratuity, an application in Form 'N' as per the provisions
of the said Act and Rules framed thereunder had been filed before
the Controlling Authority. The respondent no.4 did not contest such
proceeding. The order passed by the Controlling Authority, inter
alia, records as follows:
"The matter was taken up for hearing and
notice in form 'O' with a copy of form 'N' was served
to the O.P. Co. for inviting written statement, if any,
in deuplicat. Form 'O' was issued to applicant also.
Three dates on 01.02.2016, 16.03.2016 and
13.06.2016 were fixed for submission of written
statement, but O.P. Co. did not avail that and finally
the O.P. Co. did not submit any written statement".
13. The documents on record demonstrate that a notice in Form 'R'
was issued on 20th November, 2018 calling upon the respondent
no.4 to make payment of a sum of Rs.2,52,317/- towards gratuity
payable to the petitioner.
14. Since, the respondent no.4 did not comply with the aforesaid
direction, the petitioner had filed an application in Form 'T' for
issuance of a certificate under Section 8 of the said Act. A show-
cause notice calling upon the respondent no.4 to show-cause as to
why a certificate shall not be issued is also on record. Ultimately,
the certificate under Section 8 of the said Act was issued and the
same was forwarded along with the requisition to the Certificate
Officer for execution. Incidentally, the Certificate Officer instead of
calling upon the respondent no.4, being the certificate debtor to
comply with the certificate had initially embarked upon an enquiry
to ascertain whether the proceeding under Section 7 of the said Act
had been completed in compliance with due formalities, and
whether notice in Form 'R' had been issued calling upon the
respondent no.4 to make payment of the gratuity.
15. It is in consideration of the same that the Certificate Officer by an
order dated 21st October, 2019 expressing his dissatisfaction with
the requisition had rejected the requisition for the said certificate.
16. The question that falls for consideration in the present petition is
whether the Certificate Officer was at all competent to ascertain the
correctness or otherwise of proceeding held before the Controlling
Authority, while executing the certificate under Section 8 of the said
Act. As rightly pointed out by Ms. Sengupta the said Act is self-
contained Code which, inter alia, provides for the mode and manner
in which the gratuity shall be recovered. While, Section 7 of the said
Act provides for determination, Section 8 of the said Act provides for
recovery of gratuity. To morefully appreciate the aforesaid
provisions, Section 8 of the said Act is reproduced hereinbelow:-
"8. 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 form the date of expiry of the
prescribed time, as arrears of land revenue and pay
the same to the person entitled thereto.
Provided that the Controlling Authority shall,
before issuing a certificate under this section, give the
employer a reasonable opportunity of showing cause
against the issue of such certificate; Provided further
that the amount of interest payable under this section
shall , in no case, exceed the amount of gratuity
payable under this Act".
17. From the aforesaid, it will be crystal clear that the mode and
manner and execution of certificate has also been provided in the
said Act itself. In this context, it will be relevant to notice the
observations made by a Coordinate Bench of this Court in
paragraph 13 in the case of Murlidhar Ratanlal Exports Ltd.
(supra).
"13. Mr. Bhanja Chowdhury submits that even
in such execution proceeding the executing authority
had the power to set aside the order by which the
liability was determined. Mr. Chowdhury even had
gone to the extent in contending that in such
proceeding the executing authority could go to the
merit of the claim which had attained finality. If such
interpretation is accepted, then the provision of
appeal would be rendered otiose and executing
authority would be bestowed with a power which the
statute does not confer or contemplate. The statutory
time to prefer an appeal had expired. It was only
thereafter such applications were filed before the
respondent Nos. 3 and 4 with such untenable pleas
in an attempt to reopen the issue and to deny a just
claim. The Bengal Public Demands Recovery Act,
1913 was enacted to consolidate and amend the law
relating to recovery of public demands in Bengal. The
Payment of Gratuity Act, 1972 was enacted to
provide for a scheme for the payment of gratuity but
employees engaged in factories, mines, oil fields,
plantations, space, railway companies, shops or
other establishments and for matters connected
therewith or incidental thereto. The said Act is a self-
contained Code. The said Act is a special Act an a
subsequent Act. The said Act provides for
determination of the amount of gratuity and also
there is a provision for appeal. The mode of
execution is also prescribed in Section 8 of the said
Act which prescribes that if the amount of gratuity
payable under the Act is not paid by the employer
within the prescribed time to the person entitled
thereto, the Controlling Authority shall, on an
application be made to it in this behalf by the
aggrieved person would issue a certificate for that
amount to the collector who shall recover the same
together with compound interest as arrears of land
revenue and pay the same to the person entitled
thereto. It is because of this provision that the
collector as an executing authority recovers and
realizes the amount under the Public Demands
Recovery Act. The provisions of the Public Demands
Recovery Act cannot be extended to an aggrieved
person to re-agitate the issue which is the subject
matter of determination under Section 7 of the
Gratuity Act, 1972 either before the Certificate Officer
or the appellate authority under the Public Demand
Recovery Act. The appellate authority under the
Public Demand Recovery Act does not exercise any
appellate power over and in respect of the order
passed by the Controlling Authority. If such an
interpretation is given and power is extended to the
collector and the appellate authority under the Public
Demands Recovery Act then the entire procedure
prescribed under the Payment of Gratuity Act would
become otiose and nugatory. It would not only lead to
absurdity and militate against the provisions of the
Gratuity Act but also it would be open for an
aggrieved employer to question the determination of
liability before the collector by passing the provision
of appeal under Section 7(7) of the said Act and
disregarding the special period of limitation".
18. I also notice that the Division Bench of this Court in the case of
Delta Limited (supra) has held that once, a certificate is issued
under Section 8 of the said Act, the District Collector or delegated
authority has to recover the amount as though the same is due as
land revenue. Since, there is no specific provisions or procedure
under the said Act for execution and recovery of the amount of
gratuity determined by the Controlling Authority, section 14 of the
Public Demands Recovery Act, 1913 (in short "1913 Act") comes
into play and the Certificate Officer has to execute the certificate in
the mode and manner provided for therein. Apart from Section 14 of
1913 Act, no other provision of the 1913 Act is applicable for
execution of the certificate issued by the authority under the
Payment of Gratuity Act. Such findings have been returned by the
Division Bench by placing reliance on Section 14 of the said Act. It
would appear that Section 14 of the said Act provides that the
provisions of the said Act or any rule made thereunder shall have
effect notwithstanding anything inconsistent therewith contained in
any enactment other than the said Act or in any instrument or
contract having effect by virtue of any enactment other than the
said Act. Having regard to the aforesaid once a certificate is issued
under Section 8 of the said Act and forwarded to the Certificate
Officer for execution, he is bound to execute the same.
19. It is true, that non-service of a notice in From 'R' may vitiate a
certificate but not the determination already made. In any event,
the Certificate Officer is not competent to adjudicate the same.
20. It would, however, appear from the affidavit filed by the
respondent no.4 that the factum of issuance of notice in Form 'O'
and the notice of show-cause prior to issuance of the certificate
under Section 8 of the said Act remains un-controverted. The
defence set up by the respondent no.4 is the failure on the part of
its advocate to take proper steps for defending the case before the
Controlling Authority which had resulted the matter to be disposed
of on 20th November, 2018. The same would appear from paragraph
3 of the review application which is annexed to the affidavit in
opposition, filed on behalf of the respondent no.4.
21. Admittedly, there is also no appeal filed on behalf of the
respondent no.4 challenging the determination made under Section
7 of the said Act. I find that the matter is pending for several years.
The order determining gratuity was passed on 28th November, 2018.
No serious attempt at any stage was made by the respondent no.4
to contest the order of the Controlling Authority, even after coming
to learn of the said order, by filing an appeal under Section 7 of the
said Act. Although, a belated review application was filed by the
respondent no.4 after more than a year from the date of the order,
the same was ultimately dismissed on 20th January, 2023.
Admittedly, even thereafter, no statutory appeal has been filed. A
writ petition questioning the aforesaid rejection, as submitted by
Mr. Pandey has only been filed in the year 2023 that too after filing
of the affidavit in opposition. No order restraining the Certificate
Officer from proceeding with the execution of the certificate has
been disclosed. Notwithstanding the aforesaid the respondent no.4
and its Directors are avoiding execution, not only of the certificate
but also of the warrant of arrest.
22. In the facts noted above, the order dated 21st October, 2019
cannot be sustained, the same is set aside and quashed. Further
taking into consideration the factum of issuance of warrant of arrest
and non-execution thereof, I am of the view that the respondent no.
4 and its Directors cannot be permitted to evade due process of law.
In view thereof, I was prompted to direct the Officer-in-Charge, Hare
Street Police Station to forthwith execute the aforesaid warrant of
arrest, if the same had not already been executed. However, at this
stage Ms. Pandey learned advocate submits that his clients do not
intend to overreach the order passed by any Court of law or any
quasi judicial authority and the Directors of the respondent no.4
are all law abiding citizens and by reasons of pendency of the
aforesaid writ petition that the Directors of the respondent no.4 had
not surrendered. She prays for 2 weeks time for the Directors of the
respondent no.4 to surrender. Considering her prayer, I permit the
Directors of respondent no.4 to surrender before the Certificate
Officer on or before 22nd December, 2023.
23. Let the Directors of the respondent no.4 be added as parties to
the present proceedings. The petitioner's advocate-on-record is
granted leave to add the Directors of the respondent no.4 whose
names featured in the warrant of arrest dated 20th January, 2023,
as party respondents to the present proceedings.
24. Ms. Pandey, learned advocate through her junior Ms. Sneha
Singh, learned advocate who is present in Court accepts service on
behalf of the added respondents, save and except Sri Dipak
Kejriwal, who she claims is no longer the Director of the respondent
no.4.
25. Taking into consideration the fact that the proceedings are
pending for several years and since, the aforesaid matter pertains to
payment of gratuity, it is only expected that the Certificate Officer
shall expeditiously dispose of the aforesaid proceeding preferably,
within a period of six months from the date of communication of
this order.
26. It is made clear that the aforesaid added respondents/Directors
of the respondent no.4 be not taken into custody till 22nd December,
2023, however, if they do not surrender within the time specified,
the Officer in Charge, Hare Street Police Station, shall promptly
execute the said warrant.
27. With the aforesaid observations/directions the writ application
stands disposed of.
28. There shall, however, be no order as to costs.
29. The Registry is directed to return the original records to the
learned advocate representing the State upon obtaining proper
receipt.
30. Urgent photostat certified copy of this order, if applied for, be
given to the parties upon compliance of necessary formalities.
(Raja Basu Chowdhury, J.)
sb.
