Calcutta High Court (Appellete Side)

Food Corporation Of India vs Union Of India & Ors on 18 October, 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 19487 of 2023

                        Food Corporation of India
                                 Versus
                          Union of India & Ors.


For the petitioner      :       Mr. Devajyoti Barman,
                                Ms. Sanjukta Basu Mallick,

For the respondent      :       Ajit Kumar Mishra,

nos. 1 to 3                     Mr. Abhishek Dey,

Heard on                :       18th September, 2023.

Judgment on             :       18th October, 2023.


Raja Basu Chowdhury, J:

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

orders dated 27th February, 2023 passed by the Appellate

Authority under the Payment of Gratuity Act, 1972

(hereinafter referred to as the "said Act") and the order dated 18 th

November, 2021, passed by the Controlling Authority under the

said Act.

2. It is the petitioner's case that around 49 workmen were engaged

by a rice mill set up by the Durgapur Food Corporation District

run under the name and style of Modern Rice Mill. The

engagements of the workmen were through contractors.

Consequent upon the closure of the said mill in the year

1990/1991 since, there was no requirement for engagement of

the contractors, the aforesaid workmen were engaged by the

petitioner on need basis and on daily rated, no work no pay

system.

3. Since, the workmen demanded absorption, they had approached

the Ministry of Labour, Government of India, whereupon an

industrial dispute between the workmen and the petitioner,

regarding regularisation of service of the workmen was referred

by the Ministry of Labour, Government of India, in exercise of

powers conferred on them by clause (d) of sub-section (1) and

sub-section (2A) of Section 10 of the Industrial Disputes Act,

1947 (hereinafter referred to as the "said Act") to the Central

Government Industrial Tribunal, Asansol, for adjudication by

framing the following issues:

SCHEDULE "Whether the demand of Durgapur Casual Workers Union for absorption of 49 causal workmen as per list enclosed by the management of FCI, Durgapur is justified? If not, what relief they are entitled to?"

4. On contest, by an award dated 9th June, 1999, the said reference

was answered in the following terms: -

"The demand of Durgapur Casual Workers' Union for absorption of 49 causal workmen (as per list) by the management of F.C.I. Durgapur is justified. The concerned casual workmen be absorbed by the management within three months from the date of enforceability of this Award".

5. Although, a challenge to the Award was made by the petitioner,

the challenge was ultimately set at rest by a judgment and order

dated 9th December, 2014 in Civil Appeal No. 10856 of 2014,

delivered by the Hon'ble Supreme Court, thereby, directing

implementation of the award from its due date, as ordered by the

Tribunal.

6. Pursuant to the aforesaid, by an office order dated 15 th July,

2015, the petitioner offered to notionally fix the pay of the

aforesaid 49 workmen, which included the respondent no.4, with

a rider that the monetary benefit shall be made available to the

aforesaid workmen from the date of joining the post.

7. The respondent no.4, having since, accepted the offer and having

discharged his duties in terms of the aforesaid office order, had

subsequently superannuated from service on 31st January, 2019,

whereupon he had applied for payment of gratuity.

8. Since, the claim for gratuity was refused, the respondent no.4

had applied before the Controlling Authority for determination of

gratuity payable to him by filing an application in Form 'N'.

9. The said application was disposed of by an order dated 18th

November, 2021, inter alia, by directing the petitioner to make

payment of a sum of Rs. 4,63,454/- together with interest at the

rate of 10 per cent payable to the respondent no.4.

10. Challenging the said determination, an appeal was filed by the

petitioner before the Appellate Authority under the said Act, inter

alia, on the ground that gratuity is payable only to the permanent

employee of the petitioner. Further the respondent no.4, having

been notionally regularised, pursuant to the office order dated

15th July, 2015, on 17th May, 2016 and having been

superannuated on the expiry of 31st January, 2019, could not

have been entitled to gratuity as he had not completed

continuous service for a period of 5 years as provided under the

said Act. The aforesaid appeal was, however, dismissed on

contest by an order dated 27th February, 2023, by the Appellate

Authority.

11. Being aggrieved, the present writ petition has been filed.

12. Mr. Barman, learned advocate representing the petitioner, by

placing reliance on a judgment delivered by the Hon'ble Supreme

Court on 11th May, 2016 passed in connection with IA No. 1 & 2

of 2016 submits that the Hon'ble Supreme Court by taking note

of the direction issued by the petitioner, had confined payment of

back wages to the aforesaid workmen for the period from 1st

June, 2009 to 31st December, 2010. The Hon'ble Supreme Court

did not grant back wages for any other period.

13. Having regard to the aforesaid, since, the absorption of the

respondent no.4 was in terms of office order dated 15th July,

2015, which categorically provided that payment of monetary

benefit would be from the date of joining the post and the

appointment would be notionally effective from 9th June, 1999,

the respondent no.4 having acted in terms of the said notice, is

not entitled to payment of gratuity, apart from the period for

which he had actually worked after absorption.

14. It is still further submitted that the respondent no.4 having

joined the post on 17th May, 2016 and having been

superannuated from service on 31st January, 2019, under no

stretch of imagination can be entitled to payment of gratuity

since, the respondent no.4 did not work continuously for a period

of 5 years.

15. It is submitted that since, absorption of the petitioner was in

the post of helper notionally, with effect from 9th June, 1999, with

actual monetary benefit payable from the date of joining the post,

the petitioner cannot be entitled to gratuity for the period for

which he has been given notional benefit. Reliance has been

placed on a judgment delivered by the Hon'ble Supreme Court in

the case of State of Haryana & Ors. v. O.P. Gupta etc.,

reported in (1996) 7 SCC 533 as also the case of Paluru

Ramkrishnaiah and others v. Union of India & Anr., reported

in (1989) 2 SCC 541

16. The aforesaid aspect was not considered by the Controlling

Authority or the Appellate Authority in its proper perspective. The

orders passed by the Controlling Authority and by the Appellate

Authority, thus, cannot be sustained. Both the aforesaid orders

should be set aside and quashed.

17. Per contra, Mr. Ajit Kumar Mishra, learned advocate

representing the respondent no.4, submits that the Hon'ble

Supreme Court by the judgment and order dated 9th December,

2014 had directed implementation of the award from its due date

as ordered by the Tribunal. By referring to the award passed by

the Tribunal on 9th June, 1999, it is submitted that the

respondent no.4 was directed to be absorbed within three months

from the date of enforceability of the award. If the petitioner had

chosen not to absorb the respondent no.4, despite direction, the

respondent no.4 cannot be made to suffer therefor.

18. By drawing attention of this Court to the office order dated 31st

May, 2016, it is still further submitted that the said office order

does not provide for break in service. The same only provides that

the respondent no.4 shall be absorbed in service with effect from

9th June, 1999 and the monetary benefits arising out of the

implementation of the award shall only be afforded to the

respective workmen from the date of joining. It is not the case of

the petitioner that the respondent no.4 did not work with the

petitioner prior to the office order dated 31st May, 2016.

19. Having regard to the aforesaid, it is submitted that the

petitioner ought not to have denied payment of gratuity in favour

of the respondent no.4 at the first instance. Since, the gratuity

was denied, the respondent no.4 was compelled to approach the

Controlling Authority. There is no irregularity on the part of the

Controlling Authority in determining the gratuity payable to the

respondent no.4, by concluding that the respondent no.4 had

worked with the petitioner without any break from 9th June, 1999

and was admittedly superannuated on 31st January, 2019. The

Appellate Authority has also confirmed the order passed by the

Controlling Authority.

20. It is submitted that the present writ petition does not deserve

any further consideration and should be dismissed with costs.

21. Heard learned advocates appearing for the respective parties

and considered the materials on record.

22. Admittedly, in this case, I find that there was some sort of

employee employer relationship between the petitioner on the one

hand and the 49 workmen on the other, prior to the award dated

9th June, 1999. Since, a dispute as regards absorption of the

aforesaid 49 workmen was raised, the same was referred by the

Central Government vide order dated 18th July, 1996, to the

Central Government Industrial Tribunal, Asansol, for

adjudication of the issues referred. On contested hearing, the

learned Central Government Industrial Tribunal, by an award

dated 9th June, 1999, was, inter alia, pleased to observe that the

demand of Durgapur Casual Workers Union for absorption of 49

workmen as per list by the management of F.C.I. is justified and

consequently directed the concerned causal workmen to be

absorbed by the management within three months from the date

of enforceability of the said award.

23. I find, challenge to the said award was ultimately set at rest by

a judgment and order delivered by the Hon'ble Supreme Court on

9th December, 2014 in Civil Appeal No.10856 of 2014, whereby

the Hon'ble Supreme Court had directed the petitioner to

implement the award from its due date as ordered by the

Tribunal. Incidentally, the petitioner by an order dated 15th July,

2015 had offered to absorb the aforesaid 49 workmen including

the respondent no.4 notionally, with effect from 9 th June, 1999,

with monetary benefit from the date of joining the post.

24. Although, Mr. Barman, learned advocate representing the

petitioner, contends that that the respondent no.4 is not entitled

to payment of gratuity inasmuch as, he had joined the post on

17th May, 2016 and was superannuated on 31 st January, 2019,

thus, having not rendered continuous service for a period of 5

years, he is not entitled to gratuity, I am afraid and am unable to

accept such contention. Having regard to the direction issued by

the Hon'ble Supreme Court on 9th December, 2014, the letter

dated 15th July, 2015 provided notional absorption with effect

from 9th June, 1999, without any break in service. The letter

dated 15th July 2015, thus, did not disentitle the respondent no.

4 to be entitled to payment of gratuity. Insofar as the direction

issued by the Hon'ble Supreme Court for payment of back wages

is concerned for the period from 1st June, 2009 to 31st December,

2010, I am of the view that the same does not interfere with the

petitioner's substantive right to be entitled to the payment of

gratuity. The aforesaid order cannot be read in isolation to deny

the statutory benefit in the form of payment of gratuity. Taking

into consideration the definition of continuous service as

provided in Section 2A of said Act, I am of the view that gratuity

could not have been denied to the respondent no.4, inter alia, by

contending that he had joined the service only on 17 th May, 2016.

Admittedly, it is not the case of the petitioner that there had been

break in service of the respondent no.4, in terms of the office

order which seeks to implement the award of the Tribunal dated

9th June, 1999. The Hon'ble Supreme Court by its judgment and

order dated 9th December, 2014, had directed implementation of

the award from the due date as directed by the learned Tribunal.

The offer letter dated 15th July, 2015 does not also interfere with

the past service of the respondent no.4. The petitioner, thus,

cannot be permitted to contend that since, the respondent no.4

had been absorbed sometime in the year 2016, he was not in

continuous service for a period of 5 years, as he had been

superannuated on 31st January, 2019.

25. I find that the Controlling Authority by its order dated 7th

October, 2021, has returned the finding that the respondent no.4

had continuously worked with the employer for a period of 18

years that is from 9th June, 1999 to 31st January, 2019. The

Appellate Authority has confirmed the same. It is also not the

case of the petitioner that the respondent no.4 did not work from

9th June, 1999. They only contend that since, the service of the

respondent no.4 was regularised notionally, the said period is not

to be covered. Although, in support of the aforesaid contention

reliance has been placed on the judgment delivered in the case of

Paluru Ramkrishnaiah (supra), I, however, find that the

aforesaid judgment deals with payments of wages in relation to

notional promotion. The Hon'ble Supreme Court in the facts of

the case held that such persons will not be entitled to any pay

and allowances during the period for which they did not perform

the duty for any higher post when their seniority is fixed

notionally. The aforesaid judgment does not deal with payment of

gratuity. In the case of State of Haryana & Ors. (supra) the

Hon'ble Supreme Court in paragraph 7 was, inter alia, pleased to

observe as follows:

"7. This Court in Paluru Ramkrishnaiah v. Union of India considered the direction issued by the High Court

and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha."

26. As would appear from the above the aforesaid judgments were

delivered in different set of facts not concerning payment of

gratuity. The same also did not deal with the provisions of

Section 2A of the said Act. In the light of the deliberations made

hereinabove, the findings rendered by the Controlling Authority

or Appellate Authority cannot be said to be perverse.

27. Having regard to the same, I am of the view that the objection

put forward by the petitioner cannot be sustained. The orders

passed by the Controlling Authority and by the Appellate

Authority do not call for interference. The petitioner has also not

been able to identify any jurisdictional error committed either by

the Controlling Authority or the Appellate Authority. The writ