Calcutta High Court (Appellete Side)

Asis Chaudhuri vs The Union Of India & Ors on 5 October, 2023

            IN THE HIGH COURT AT CALCUTTA

                     Civil Revisional Jurisdiction

                            Appellate Side
Present :

The Hon'ble Justice Rajarshi Bharadwaj

      And

The Hon'ble Justice Shampa Dutt (Paul)


                         RVW 139 of 2022
                               In
                         FMA 432 of 2021

                           Asis Chaudhuri
                               Versus
                      The Union of India & Ors.

For the Applicant              :      Mr. Avijit Ghoshal.

For the Respondent no.3        :      Mr. D. K. Kundu,

Mr. A. Basu.

For the Respondent no.4 : Mr. Victor Chatterjee, Mr. Hare Krishna Haldar, Mr. Koushik Bhattacharyya.

Hearing concluded on            :     21.09.2023

Judgment on                    :      05.10.2023



Shampa Dutt (Paul), J.:

1. The petitioner/appellant/employee has preferred this review

application.

2. The case history in short is:-

i) The employer/respondent no.4, M/s. Duckback

Information System Private Limited filed WPA No.9553 of

2020 before the Single Bench of this court praying for a

direction upon the respondent No.3 (Life Insurance

Corporation) to deposit an amount of Rs.3,63,462/- in favour of

the Assistant Labour Commissioner (Central), Kolkata

(Controlling Authority), as the said petitioner

therein/respondent no.4/Employer, wants to prefer an appeal

against the order of the Assistant Labour Commissioner, who

had directed payment of gratuity to the extent of the said

amount, in favour of the employee/applicant.

ii) The Single Judge vide order dated 22.12.2020 disposed

of the writ petition by directing as follows:-

"In the facts and circumstances as aforesaid, I direct LICI to pay an amount of Rs.3,63,462/- to the petitioner by way of cheque drawn in the name of Assistant Labour Commissioner (Central) within a period of two weeks from the date of communication of this order."

iii) Being aggrieved by the said order, the

employee/appellant preferred an appeal being FMA No.432 of

2021 before a Division Bench of this Court.

iv) Vide an order dated 7th July, 2022 the appeal was

dismissed with the following observations:-

"Before the learned Single Judge, the respondent no.3 (LICI) had taken a fair stand to

avoid a future dispute and therefore, the learned Single Judge found that an order was required for transferring the money by LICI. Learned Single Judge also found that the money deposited by the respondent no.4 with the LICI is the money of the respondent no.4. Accordingly, learned Single Judge had directed the LICI to pay the aforesaid amount to the respondent no.4 by way of cheque drawn in the name of Assistant Labour Commissioner (Central).

The submission of learned counsel for the appellant is that the money belonging to the appellant cannot be used by the respondent no.4 for the purpose of filing the appeal. As against this, learned counsel for the respondent has supported the impugned order. Having examined the record, we find that learned Single Judge has not committed any error in passing the impugned order. Even if the two views are possible in the matter than the one which is taken by the learned Single Judge need not be interfered with. Learned counsel for the appellant has failed to point out if any prejudice is caused to the appellant on account of the impugned direction of the learned Single Judge because in any case, if the respondent no.4 losses the appeal, the amount will become payable to the appellant. In these circumstances, we find no ground to interfere in the order of the learned Single Judge."

3. The Review Application has been preferred by the

Applicant/Appellant/Employee on the ground that the

Hon'ble Division Bench ought to have considered that the

learned Single Judge did not consider at the time of passing

order, the prejudice caused to the applicant/employee, if the

claim amount is to be given to the respondent no. 4/employer,

as the fund is lying with the respondent no.3 in a special

category scheme under LIC Cash Accumulation Scheme

namely Group Gratuity Cash Accumulation Scheme having

a Master Policy being No. GG(CA)-212435 which is only to

be used for the welfare of the employee of the respondent

no.4 and the fund is not be diverted from such Master Policy

which is specially to be used only for the purpose of welfare of

the employee of the respondent no.4.

4. It is further stated that the Hon'ble Division Bench ought to

have considered that the above fund is only to be used for the

purpose of the welfare of the employee and it is no prerogative

of the respondent no.4/employer, being a corporate house to

use it for its own gain and purpose, as the fund is with the

respondent no.3 only for the purpose of welfare of the

employee of the respondent no.4 and as such there being some

technical error apparent on the face of the record, the same is

to be reviewed by the Bench in the interest of justice.

5. All the parties were heard at length.

6. The applicant/employee/appellant, the respondent no.3/LICI,

and the respondent no. 4/employer have filed their written

notes of argument.

7. The respondent no.3/LICI has submitted that as directed

by the Hon'ble Single Bench, they have deposited the total

amount by way of cheque drawn in the name of the

Assistant Labour Commissioner (Central).

8. The respondent no. 4/employer has submitted that the

memorandum of review is defective and the same is liable to be

dismissed.

It is further submitted that the review petitioner has not

made out any of the grounds for preferring review of an order

and/or judgment, as enumerated under Order XLVII Rule 1 of

the Code of Civil Procedure, 1908. That the grounds as made

out in the memorandum of review does not show any error

apparent on the face of the impugned order dated 7th July,

2022. And as the said memorandum is devoid of any material,

it is liable to be dismissed.

It is also stated that from the grounds incorporated in the

memorandum of review it appears that the review petitioner

has actually tried to prefer an appeal before the Hon'ble Bench

in form of a review, as such the instant memorandum of review

is liable to be dismissed.

9. It is the case of the respondent no. 4 that the respondent

no.4, being the employer of the review petitioner,

maintained a fund with the Life Insurance Corporation of

India, for the purpose of payment of gratuity to the various

employees as and when they become legally entitled. The

review petitioner is one of them. The contribution towards

such fund maintained with the LICI is fully borne by the

answering respondent and no part of such fund is

contributed by any of the employees. Such fund represents

the employer's money being invested with the LICI.

10. It is further stated that the review petitioner filed his claim for

gratuity before the Controlling Authority under the Payment of

Gratuity Act, 1972, which was allowed by an order dated 3rd

March, 2020, and the respondent no. 4, being the employer,

has a right to prefer an appeal from the said order dated 3rd

March, 2020 before the Appellate Authority under Section 7(7)

of the Payment of Gratuity Act, 1972. It is thus stated that, as

a precondition of filing such appeal, the entire amount as

awarded by the Learned Controlling Authority has to be pre

deposited. The respondent no. 4 in order to prefer such

appeal is required to deposit such amount before the

Appellate Authority, which the said respondent has already

invested with LICI (respondent no. 3).

11. It is further stated that during the pendency of the review

proceeding, LICI has filed an affidavit, affirmed on 06.06.2023,

stating that, in terms of the Hon'ble High Court's order dated

22nd December, 2020, LICI has issued and handed over a pay

order of Rs.3,63,462/- in favour of the Assistant Labour

Commissioner (Central) the controlling authority. However, no

intimation of such remittance was ever made to the Respondent

No. 4. It is stated that such act on the part of the LICI is

actually in wilful violation of the order passed by the Hon'ble

Court on 22nd December, 2020. That the Respondent No. 4, for

the first time came to know about such fact on August 07,

2023, at the time of receiving the Affidavit-in-Opposition, on

behalf of the Respondent No. 3 (LICI).

12. It is further stated that in terms of the order dated 22nd

December, 2020, LICI was supposed to hand over a cheque

of Rs. 3,63,462/- issued in favour of the Assistant Labour

Commissioner to the respondent no. 4, to enable it to file

the statutory appeal, rather than remitting the amount to

the Assistant Labour Commissioner directly that too

without any intimation to the respondent no. 4, which is a

clear case of wilful disobedience of the order passed by the

Hon'ble Court on December 22, 2020.

13. From the materials on record, it appears that the grievance of

the applicant/employee is that the amount deposited by the

LICI (respondent no. 3) is the amount of gratuity sanctioned in

favour of the employee, being a beneficiary to the GGCA

Scheme, which is maintained only to be used for the welfare of

the employees of a company and the said fund cannot be used

by the company to prefer an appeal under Section 7(7) of the

Payment of Gratuity Act.

14. The present status of the case is that LICI (respondent no. 3)

has deposited the amount as directed by way of cheque with

the controlling authority (Assistant Labour Commissioner

(Central)).

15. Section 7(7) of the Payment of Gratuity Act, lays down:-

"(7) Any person aggrieved by an order under sub- section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf.

Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days:

[Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount.]"

16. Thus, from the 2nd proviso to Section 7(7) of the said Act, it

is clear that if the employer (as in this case) intends to prefer

an appeal, he has to only produce a certificate of the

controlling authority (herein the Assistant Labour

Commissioner, (Central) with whom the amount has already

been deposited) and the amount so deposited by LICI

(respondent no. 3) as required/directed, need not be

deposited with the appellate authority. A certificate to that

effect issued by the Controlling Authority shall enable the

respondent no. 4/employer to file an appeal.

17. Finally it is admitted by the respondent no. 4/employer, that

the required amount has already been transferred by LICI in