Calcutta High Court (Appellete Side)
Food Corporation Of India vs Union Of India & Ors on 3 July, 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 6359 of 2023
Food Corporation of India
Vs.
Union of India & Ors.
For the Petitioner : Mr. Kamal Kumar Chattopadhyay
For the Union of India : Mr. Atarup Banerjee
Mr. Ayanabha Raha
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. The present writ application has been filed, inter alia, challenging
the orders dated 23rd December, 2021 and 27th December, 2022
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
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 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
respondent no.4 having been paid through handling contractors,
and a dispute having arisen in connection with the disbursal of
wages to 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 respondent
no.4.
4. Despite gratuity not being payable to 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 23rd December, 2021, the Controlling Authority determined
the gratuity payable in favour of the respondent no.4 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 27th December, 2022, 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 respondent no.4. It is claimed that since, 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 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 respondent no.4, did not
grant any relief to 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 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 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 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 respondent no.4 and other similarly
placed persons had categorically and in no uncertain terms directed
that 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 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 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 0f 2022 (Prasanta
Mukherjee & Anr. Vs. Food Corporation of India & Ors.) submits
that the subsistence of the employer-employee relationship between
the petitioner and 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 0f 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 respondent no.
4, to be entitled to gratuity.
16. It is an admitted position that 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 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 respondent no.
4. Since, according to Mr. Chattopadhyay, the respondent no. 4 had
not been employed in terms of the said Regulations, 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 respondent no. 4 qualifies 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 respondent no.4 was
though a handling contractor, however, the petitioner has not
denied payment of wages directly to the respondent no.4. Thus, by
analyzing the status 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
respondent no. 4 and the petitioner subsists, consequentially there
cannot be any doubt that the respondent no. 4 qualifies 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 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 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 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 respondent no. 4 to receive gratuity. Further the
aforesaid order also does not deal with the issue whether the
respondent no. 4, qualifies 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 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
inter-feared 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.)
