Food Corporation Of India vs Union Of India & Ors
2023 Latest Caselaw 4019 Cal

Form No.J(2)


                IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                        APPELLATE SIDE

Present :
The Hon'ble Justice Raja Basu Chowdhury

                             WPA 8951 of 2023


                         Food Corporation of India
                                    Vs.
                           Union of India & Ors.


For the Petitioner       :     Mr. Kamal Kumar Chattopadhyay

For the Union of India   :     Mr. Shiv Chandra Prasad

For the Respondent No.4:       Mr. Samiran Mondal

Mr. Abhinaba Dan Mr. Nitish Samanta

Heard on : 20.04.2023

Judgment on : 03.07.2023

Raja Basu Chowdhury, J:

1. Since it has been joint submitted by the learned advocates for the

parties that all relevant documents are already on record the

aforesaid application is taken up for hearing. The present writ

application has been filed, inter alia, challenging the orders dated

9th September, 2022 and 30th January, 2023 passed by the

Controlling Authority and the Appellate Authority, under the

Payment of Gratuity Act, 1972 (hereinafter referred to as the "said

Act").

2. It is the petitioner's contention that at all material point of time, the

job of handling and transport of food grains and for supply of

casual labourers were performed by the handling contractors. The

husband of the respondent no.4 was originally appointed as

contract/casual labourer under the handling contractor under a

two year contract period. According to the petitioner, the husband

of the respondent no.4 is not its employee and had not been

employed in terms of the FCI Staff Regulation, 1971 (hereinafter

referred to as the "said Regulation").

3. Notwithstanding the fact that at all material point of time, the

husband of the respondent no.4 having been paid through handling

contractors, and a dispute having arisen in connection with the

disbursal of wages to the husband of the respondent no.4, a writ

application was filed before this Hon'ble Court. The lis between the

parties travelled up to the Hon'ble Supreme Court and finally by

and in terms of the order dated 14th January, 2010, the petitioner

had been disbursing wages directly to all such contract labourers

including the husband of the respondent no.4.

4. Despite gratuity not being payable to the husband of the

respondent no.4, in terms of the said Regulation or in terms of the

order passed by the Hon'ble Supreme Court, the respondent no.4

had applied in Form 'N' before the Controlling Authority.

5. The petitioner had duly contested such proceedings. By an order

dated 9th September, 2022, the Controlling Authority determined

the gratuity payable in favour of the respondent no.4 on account of

her late husband and issued a notice in Form 'R' calling upon the

petitioner to make payment of the gratuity so determined.

6. Being aggrieved, the petitioner filed an appeal before the Appellate

Authority by making pre-deposit, as required under the said Act. By

an order dated 30th January, 2023, the said appeal was also

dismissed.

7. Challenging the aforesaid orders, the aforesaid writ application has

been filed.

8. Mr. Chattopadhyay, learned advocate representing the petitioner

submits that there was no employee-employer relationship between

the petitioner and the husband of the respondent no.4. It is claimed

that since, the husband of the respondent no.4 along with other

similarly placed persons which, inter alia, includes contract

labourers and casual workers, employed by FCI, were not being

paid wages at par with the FCI staff, a writ application was filed

before this Court, which was registered as WP No. 1491 of 1997.

The same ultimately culminated in an order dated 23rd June, 1998,

directing the petitioner to make payment of wages to the aforesaid

casual labourers/contract labourers, at par with the wages of class

IV staff of the writ petitioner.

9. Although the said order was challenged by filing an intra Court

Appeal, since, the petitioner was unsuccessful in the said intra

Court Appeal, a Special Leave Petition was filed before the Hon'ble

Supreme Court and finally by an order dated 14th January, 2010,

the said Special Leave Petition, then converted to a Civil Appeal

being No.9472-73 of 2003, was disposed of with a direction to make

payment of wages and other dues to the husband of the respondent

no.4 and other similarly placed persons directly without involving

any contractor. By referring to the aforesaid judgment Mr.

Chattopadhyay submits that the Hon'ble Supreme Court while

directing the petitioner to make payment of the wages directly to the

husband of the respondent no.4, did not grant any relief to the

husband of the respondent no.4 and other similarly placed persons,

insofar as payment of gratuity is concerned. By further referring to

the aforesaid order, it is contended that the Hon'ble Supreme Court

did not direct payment of gratuity to the husband of the respondent

no.4 and other similarly placed persons. This aspect, however, was

overlooked and not at all considered by the Controlling Authority or

by the Appellate Authority. To this extent, both the Controlling

Authority and the Appellate Authority exceeded its jurisdiction.

10. By further placing reliance on the order dated 4th July, 2011,

passed in connection with a contempt application, filed before the

Hon'ble Supreme Court, it is submitted that the Hon'ble Supreme

Court by such order had in no uncertain terms recorded that they

were convinced that the order passed by the Hon'ble Supreme Court

had been fully complied with. Such satisfaction was recorded

without insisting for payment of gratuity. It is still further

submitted that the husband of the respondent no.4 was never

entitled to any gratuity. The direction issued by both the Controlling

Authority and the Appellate Authority should be set aside and

quashed and the amount deposited by the petitioner with the

Appellate Authority should be directed to be refunded.

11. Per contra, Mr. Mondal, learned advocate representing the

respondent no.4 on the other hand submits that the issue whether

the husband of the respondent no.4 was an employee of the

petitioner can no longer be questioned. By referring to the judgment

delivered by the Hon'ble Supreme Court he says that the Hon'ble

Supreme Court while taking into consideration all factual aspects,

inter alia, including the status of the husband of the respondent

no.4 and other similarly placed persons had categorically and in no

uncertain terms directed that the husband of the respondent no.4

should be treated as an employee of the petitioner and consequent

there upon, had directed the petitioner to make payment of wages

directly to the husband of the respondent no.4 without involving

any other contractor. The order passed by the Hon'ble Supreme

Court on 14th January, 2010 clearly established the master-servant

relationship. By further referring to the aforesaid order he says that

the Hon'ble Supreme Court was pleased to, inter alia, provide that

the husband of the respondent no.4 and other similarly placed

persons should be entitled to retiral benefits, if admissible, under

the Regulation. He says that the employees who are directly

appointed by the petitioner are all receiving gratuity and as such,

the Regulation does not in any way bar payment of gratuity to the

employees of Food Corporation of India.

12. Mr. Mondal, by relying on an interim order dated 12th December,

2022, passed by this Court in WPA 23337 of 2022 (Prasanta

Mukherjee & Anr. Vs. Food Corporation of India & Ors.) submits

that the subsistence of the employer-employee relationship between

the petitioner and the husband of the respondent no. 4 and other

similarly placed persons has already been recognized by this Court.

13. He says that the Controlling Authority cannot be faulted for

having issued a direction in Form 'R' calling upon the petitioner to

make payment of gratuity. The order passed by the Appellate

Authority also cannot be questioned by the petitioner in the manner

as has been done. He submits that the writ application should be

dismissed with costs.

14. In reply, Mr. Chattopadhyay, learned advocate representing the

petitioner submits that the aforesaid finding returned in WPA

23337 of 2022, is prima facie and is interim in nature, subject to

final hearing of the writ application. The same cannot come in aid of

the respondent no.4.

15. Heard the learned advocates appearing for the respective parties

and considered the materials on record. As would appear from the

challenge made by the petitioner, it would be evident that the

petitioner is attempting to disclaim the right of the husband of the

respondent no. 4, to be entitled to gratuity.

16. It is an admitted position that the husband of the respondent

no.4 at all material times been receiving wages, directly from the

petitioner, in relation to work, executed for the petitioner. Although

Mr. Chattopadhyay has strenuously argued that the husband of the

respondent no. 4 had been initially appointed as a contract labourer

under the handling contractor, however, it has been acknowledged

and accepted that the petitioner had been making payment of

wages directly to the husband of the respondent no. 4. Since,

according to Mr. Chattopadhyay, the husband of the respondent no.

4 had not been employed in terms of the said Regulations, the

husband of the respondent no. 4 does not qualify to be an employee

within the said Regulation, for him to be eligible to claim gratuity.

17. I, however, notice that both the Controlling Authority as also the

Appellate Authority, by construing the provisions of the said Act,

had concluded that the husband of the respondent no. 4 qualified

as an employee within the meaning of Section 2(e) of the said Act. In

order to appropriately appreciate the aforesaid finding, Section 2(e)

of the said Act, is reproduced herein below.

"Section 2(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

18. While construing the aforesaid provision it must be remembered

that the said Act, is a piece of social welfare legislation and the

deals with payment of gratuity. Gratuity is a part of retiral benefit

and in a sense is a gift especially for the service rendered or the

return of favours received.

19. Although the initial engagement of the husband of the

respondent no.4 was though a handling contractor, however, the

petitioner has not denied payment of wages directly to the husband

of the respondent no.4. Thus, by analyzing the status of the

husband of the respondent no. 4 with regard to his employment

with the petitioner and the findings returned by the Controlling

Authority and the Appellate Authority, it would be apparent and

clear that a master servant relation between the husband of the

respondent no. 4 and the petitioner subsisted, consequentially

there cannot be any doubt that the husband of the respondent no.

4 qualified to be an employee within the meaning of section 2(e) of

the said Act. As noted above, the objection is not with regard to the

husband of the respondent no.4 receiving wages directly from the

petitioner but with regard to his right to receive gratuity, regardless

of payment of wages, in as much as the husband of the respondent

no.4 had not been appointed in terms of the Regulation. Since the

master servant relationship is established by payment of wages, it

becomes irrelevant whether the husband of the respondent no. 4

had been appointed in terms of the said Regulations.

20. The only other point canvassed by the petitioner is that the

Hon'ble Supreme Court had disposed off the contempt application

by recording satisfaction as regards compliance of its direction, as

such the petitioner cannot be saddled with additional liability in the

form of payment of gratuity. As would appear from the order dated

14th January 2010, the Hon'ble Supreme Court, while disposing of

the appeal by its aforesaid order, did not in any way restrict the

right of the husband of the respondent no. 4 to receive gratuity.

Further the aforesaid order also does not deal with the issue

whether the husband of the respondent no. 4, qualified within the

meaning of the term employee as defined in section 2(e) of the said

Act.

21. Admittedly the petitioner had paid wages directly to the husband

of the respondent no. 4, for having employed him in the petitioner's

establishment. Thus, payment of gratuity is a natural consequence

of the order dated 14th January 2010. Such a right to receive

gratuity cannot be interfered with in absence of a statutory

prohibition. As such the orders passed by the Controlling Authority

and the Appellate Authority do not appear to be perverse or without

jurisdiction. No case for interference has been made out.

22. The writ application fails. The Controlling Authority is directed to

take immediate steps for disbursal of gratuity in favour of the

respondent no.4.

23. With the aforesaid observations and directions, the writ

application stands disposed of.

24. There shall be no order as to costs.

25. Urgent Photostat certified copy of this order, if applied for, be

made available to the parties on compliance of all formalities.

(Raja Basu Chowdhury, J.)