Shalimar Paints Limited vs The State Of West Bengal & Ors
2023 Latest Caselaw 2086 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 267 of 2023

                        Shalimar Paints Limited
                                   Vs.
                     The State of West Bengal & Ors.


For the petitioner                   :       Mr. Sujit Sharma
                                             Mr. Sunny Nandy
                                             Mr. Subha Pathak
                                             Mr. Tamal Singha Roy

For the State                        :       Mr. Subir Pal

For the respondent no. 3             :       Mr. A.K.Niyogi

Mr. Vaskar Pal

Heard on : 29.03.2023

Judgment on : 29.03.2023

Raja Basu Chowdhury, J:

1. The present writ application has been filed, inter alia, challenging

the order dated 25th November 2022 passed in Gratuity case no.

G-03 of 2017 pending before the Controlling Authority under the

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

"said Act").

2. The petitioner says that the respondent no.3 having retired from

service on 31st December, 2016 had applied for gratuity before

the respondent no.2 in Form-"N" on 12th July, 2018. The claim of

the respondent no.3 was contested by the petitioner. The factory

of the petitioner had been closed and was under suspension of

work since 16th July, 2014. The respondent no.3 was a

temporary workman and had not worked for a period of 240 days

in a stretch as such was not entitled to his claim for gratuity. The

aforesaid application was being heard by the respondent no.2.

According to the petitioner the respondent no.2 having been

promoted as a Deputy Labour Commissioner, had assumed the

jurisdiction of Appellate Authority and could no longer act as a

Controlling Authority. It is in the factual backdrop as aforesaid

that the petitioner had filed an application on 12th February,

2020, for releasing the case pending before the respondent no.2.

The petitioner had thereafter adduced evidence. It is the

petitioner's case that since the respondent no.2 did not adhere to

the petitioner's request and continued hearing of the matter the

present writ application has been filed.

3. It is submitted on behalf of the petitioner that the present

incumbent to the post of the Controlling Authority under the said

Act, has been promoted to the post of Deputy Labour

Commissioner and as such she is no longer competent to assume

the office of the Controlling Authority. According to the petitioner,

upon the respondent no.2 being promoted, she has become the

Appellate Authority within the meaning of the said Act.

4. Mr. Sharma, learned advocate appearing for the petitioner, by

placing reliance on Section 7(4) of the said Act, has inter alia,

claimed that in case where there is a dispute as to the amount of

gratuity payable to an employee under the said Act, or as to the

admissibility of any claim of, or in relation to an employee for

payment of gratuity, or as to the person entitled to receive the

gratuity, the same shall be decided by the Controlling Authority.

5. By referring to Section 3 of the said Act, it is submitted that the

appropriate Government may, by notification, appoint any officer

to be a Controlling Authority for the purpose of the said Act, who

shall be responsible for the administration of the Act, and

different Controlling Authority may be appointed for different

areas.

6. By placing before this Court, a notification dated 7 th October

1996, issued by the Government of West Bengal, Labour

Department, in exercise of powers conferred by Section 3 of the

said Act, he says that the appropriate Government has been

pleased to appoint the officers mentioned in Column-I of the

Schedule to the said notification, to be the Controlling Authority

for the purpose of the said Act, for the area mentioned in the

corresponding entry in Column-II of the said Schedule. By

further referring to the aforesaid notification, he submits that all

Assistant Labour Commissioners, West Bengal posted in the

Regional labour offices under the Labour Directorate have been

appointed as Controlling Authority in respect of the respective

area for which he/she holds charge as Assistant Labour

Commissioner.

7. Since the incumbent to the post of the Controlling Authority,

being the respondent no.2, has since been promoted to the post

of Deputy Labour Commissioner, she can no longer assume the

jurisdiction of a Controlling Authority within the meaning of the

said Act and cannot continue with the proceedings.

8. Mr. Pal, learned advocate appearing for the State, on the other

hand submits that the State Government had, in exercise of

powers conferred under Section 3 of the said Act, duly appointed

all Assistant Labour Commissioners, West Bengal posted in

Regional labour offices, under the Labour Directorate, to act as

Controlling Authorities in respect of the respective area for which

each of such Assistant Labour Commissioner holds charge, and

does not contradict the notification dated 7th October, 1996. He

says although by notification dated 17th February, 1999, the

aforesaid notification had been partially modified, the same did

not alter the status of Assistant Labour Commissioner, West

Bengal posted in the Regional Labour Offices. He, however, by

placing reliance on an office order dated 6th September 2019,

issued by the OSD and Labour Commissioner, Government of

West Bengal submits that Labour Commissioner by such

notification, has granted scale linked designation to the officers

belonging to the West Bengal Labour Service. According to such

office order the officer belonging to West Bengal Labour Service

having designation of functional posts as mentioned in Column-V

are allowed respective scale linked designation as mentioned in

Column-VI in the table annexed to such office order without

prejudice to any rights with respect to the seniority of such

officers; the duties and responsibilities of the scale linked

designated officers will, however, remain unchanged with respect

to the functional post.

9. By referring to the annexure of the said office order, especially to

serial no.93 of the said office order, he says that the concerned

Assistant Labour Commissioner being the respondent no.2

herein, who had been appointed as a Controlling Authority for

the District of Howrah continues to discharge the same

responsibilities and functions, only her scale linked designation

is changed, though her designation of the functional post

remains unchanged. He says that the respondent no.2 has been

given scale linked designation of Deputy Labour Commissioner

(P) and is in charge of Howrah District. The said scale linked

designation does not alter her functional post that is of Assistant

Labour Commissioner, and as such is competent to act as the

Controlling Authority, within the meaning of the said Act.

10. Mr. Niyogi learned advocate appearing for the respondent

no. 3 submits that the present application has been filed with the

object of delaying the determination of the amount of gratuity

payable to the respondent no.3. He says that since, the petitioner

did not make payment of gratuity, an application in Form-'N' was

filed before the Controlling Authority in the year 2016. Such

application is pending till date and has not been disposed of. He

says that since the application had remained pending, the

respondent no. 3 was constrained to approach this Hon'ble

Court. By an order dated 5th January 2022, this Court upon

taking into consideration all aspects of the matter, was inter alia,

pleased to direct the respondent no.2 to expeditiously hear out

and dispose of the said application. It is only after such order had

been passed, that the petitioner to circumvent the aforesaid order

has applied before this Hon'ble Court by filing this application.

He says that the petitioner had in the year 2020 applied before

the respondent no.2, by a one-page application, inter alia,

claiming that the respondent no.2 may be graciously pleased to

release the matter since, the learned authority having been

promoted as an Appellate Authority, has lost jurisdiction to

function as a Controlling Authority within the meaning of the

said Act. Subsequently, thereafter the petitioner had participated

in the proceedings and has also lead evidence. Aforesaid

application is only a ploy to delay the disposal of the pending

proceedings. According to him, the instant writ application

deserves to be dismissed.

11. In reply, Mr. Sharma submits that the office order dated 6th

September 2019, as relied on by Mr. Pal, learned advocate

appearing for the State, is not a notification within the meaning

of the said Act, and as such the same does not confer any

jurisdiction or authority on the persons named therein, to act as

a Controlling Authority within the meaning of the said Act.

According to Mr. Sharma, the office order dated 6th September

2019, is an internal memo and the same cannot be relied on to

demonstrate that the respondent no.2 has been appointed as the

Controlling Authority within the meaning of the said Act.

According to the petitioner, since the incumbent to the post of

the respondent no.2 has been promoted, she can no longer

function as a Controlling Authority, nor can she pass an order

under Section 7(4) of the said Act.

12. Having heard the learned advocates appearing for the

respective parties, I find that the petitioner has by a one-page

application questioned the jurisdiction of the respondent no.2 to

hear out the matter. No particulars in the two-paragraph-

application have been provided. The said application also does

not disclose the date on which the respondent no.2 had been

allegedly promoted as an Appellate Authority. Such application

was filed sometimes on 12th February, 2020. I find that thereafter

the petitioner had participated in the said proceedings and lead

evidence, at present the proceedings are pending before the

respondent no.2. No attempt was made by the petitioner to bring

to the notice of this Hon'ble Court the aforesaid jurisdictional

issue when the order dated 4th January 2022, was passed.

13. I have also perused the notification dated 7th October 1996,

as relied on by the petitioner which notifies that all the Assistant

Labour Commissioners, West Bengal posted in the Regional,

labour offices under the Labour Directorate have been appointed

as Controlling Authority for the purpose of the Act, for the area

mentioned in the corresponding entry II of the Schedule to such

notification.

14. I find that Mr. Pal has relied on an office order dated 6th

September 2019, wherefrom it would appear that the Labour

Department, Government of West Bengal has, inter alia, been

pleased to grant scale linked designation to the officers belonging

to the West Bengal Labour Service. In terms of the aforesaid

office memo, the officers of the West Bengal Labour Service

having designation of functional posts, as mentioned in Column-

V were allowed respective scale linked designation as mentioned

in Column-VI in the table annexure therewith. As per the

aforesaid office memo the duties and responsibilities of the scale

linked designated officers remain unchanged with respect to their

functional posts.

15. I find that Mr. Pal, by relying on the aforesaid office

memo/order has clarified that the parent designation/ functional

post of the respondent no. 2 is that of the Assistant Labour

Commissioner, as would appear from serial no. 93, only the scale

linked designation of the said officer has been changed to Deputy

Labour Commissioner (P). The aforesaid office order dated 6th

September 2019 does not seek to alter the functional designation

of the respective officers. The same only provides that the

respective officers were allowed scale linked designation and that

the duties and responsibilities of the scale linked designated

officers remain unchanged with respect to their functional posts.

16. Since the functional post of the respondent no.2 remains

unchanged, it cannot be contended that she has become

incompetent to assume the office of a Controlling Authority

within the meaning of the said Act.

17. In view thereof, I do not find any merit in the submission

made by Mr. Sharma. I also do not find any jurisdictional error

committed by the respondent no.2 in passing the order dated

25th November, 2022. The writ application fails and accordingly,

the writ application being WPA 267 of 2023 is dismissed.

18. There shall be no order as to costs.

19. Urgent photostat certified copy of this judgment, if applied

for, be given to the parties on priority basis upon completion of

requisite formalities.

(Raja Basu Chowdhury, J.)

Saswata Assistant Registrar (Court)