Noor Islam Sk. & Anr vs The State Of West Bengal & Ors
2023 Latest Caselaw 5948 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 14822 of 2023

                           Noor Islam Sk. & Anr.
                                       Vs.
                      The State of West Bengal & Ors.


For the Petitioners             :     Mr. Subhadip Bhattacharya,
                                      Mr. Tauhid Khan

For the State                   :     Mr. Jayanta Samanta,
                                      Mr. Sekhar Mustaphi

For the Respondent no.3         :     Ms. Amrita Pandey,

Mr. Ghanshyam Pandey, Ms. Sneha Singh

Heard on : 06.09.2023

Judgment on : 06.09.2023

Raja Basu Chowdhury, J:

1. At the very outset Mr. Bhattacharya, learned Advocate representing

the writ petitioners, submits that he wants to maintain the present

writ application in so far as the petitioner no.1 is concerned. He

submits that the cause of action in so far as the petitioner no.2 is

concerned is different. Having regard to the aforesaid, he seeks

leave to withdraw the application in so far as the petitioner no.2 is

concerned with liberty to apply afresh on the self same cause of

action.

2. Having heard the learned Advocates appearing for the respective

parties, I am of the view that the petitioner no.1 should be

permitted to maintain the present writ application in so far as the

petitioner no.1 is concerned. In so far as the petitioner no.2 is

concerned, the petitioner shall be at liberty to apply afresh on the

selfsame cause of action.

3. In the circumstances noted above, the present writ application is,

thus, confined to the challenge, to the order dated 17th May, 2023

passed by the Controlling Authority under Payment of Gratuity Act,

1972 (hereinafter referred to "the said Act").

4. The petitioner no.1 claims to be an ex-employee of the respondent

no.3 who had joined the service on 22nd May, 1976. The petitioner

no.1 claims that the petitioner no.1 had since been superannuated.

Even after serving the respondent no.3 for about 37 years, gratuity

having not been disbursed in his favour, he had filed an application

in Form-I before the respondent no.3 for disbursal of his gratuity.

Since such application was not responded to, the petitioner no.1

was compelled to file an application in Form-N before the

Controlling Authority under the said Act for determination of the

gratuity payable to him. On contest, the petitioner no.1's claim was

found inadmissible on the ground of limitation and by order dated

17th May, 2023 the application in Form-N was rejected. Being

aggrieved, the instant writ application has been filed.

5. Mr. Bhattacharya, learned Advocate representing the petitioner no.1

by placing reliance on the provisions of Section 7(2) of the said Act,

submits that a duty is cast upon the respondent no.3 to make

payment of gratuity. The respondent no.3 cannot choose to ignore

its obligation with regard to the payment of gratuity even if the

petitioner no.1 does not apply before the said respondent.

6. It is submitted that the obligation to make payment of gratuity is

embodied in Section 7(2) of the said Act and gives an independent

right to the petitioner no.1 to seek enforcement thereof.

7. Mr. Bhattacharya submits that the petitioner no.1 was disbursed

his provident fund dues and as such the petitioner no.1 was under

an impression that the respondent no.3 would disburse gratuity in

his favour. Unfortunately, gratuity having not been disbursed in

favour of the petitioner no.1, the petitioner was compelled to file an

application in Form-I before the respondent no.3.

8. By drawing attention of this Court to the application in Form-I

dated 31st December, 2021 he submits that all particulars with

regard to his claim had been incorporated in such application.

Notwithstanding receipt of such application, the respondent no.3

chose to maintain silence, which ultimately prompted the petitioner

no.1 to apply before the Controlling Authority under the provisions

of Payment of Gratuity Act, for determination of his gratuity. The

said application was accompanied by an application praying for

condonation of delay in filing the same.

9. By referring to the application for condonation of delay it is

submitted that the petitioner no.1 had sufficiently explained the

delay, notwithstanding the aforesaid the Controlling Authority by

overlooking such explanation and by placing reliance on

technicalities was, inter alia, pleased to dismiss the petitioner's

application in Form-N of the said Act.

10. By placing reliance on a judgment delivered by the Bombay High

Court in the case of Transport Manager, Kolhapur Municipal

Transport Undertaking, Kolhapur v. Pravin Bhabhutlal Shah

reported in 2005(1) Mh.L.J. 497, he says that obligation to make

payment of gratuity has long been recognized as an enforceable

right and the delay in filing the application cannot defeat such a

substantive right.

11. In support of the aforesaid contention, he has also placed

reliance on the judgment delivered in the case of RKV Govindaraj

v. V. Chellaiah reported in 2011 SCC OnLine Madras 1988.

12. In the facts as noted hereinabove, he submits that the order

passed by the Controlling Authority which interferes with his

substantive right cannot be sustained and the same should be set

aside.

13. Per contra, Ms. Pandey, learned Advocate representing the

respondent no.3 by placing reliance on the provisions of Section

7(1) of the said Act submits that it was the primary obligation of the

petitioner no.1 to apply before the respondent no.3, within the time

as specified in the West Bengal Payment of Gratuity Rules, 1973

(hereinafter referred to as the "said Rule"). The petitioner no.1

having not applied within the time specified in the said Rules no

gratuity is payable in favour of the petitioner, at least the petitioner

no.1 could not have maintained the application before the

Controlling Authority. She has thereafter by placing reliance on the

provisions of Section 7(7) of the said Act submits that an Appellate

Authority has been provided in the scheme of the said Act. The

Appellate Authority is competent to hear out all issues arising out

and in connection with, not only with regard to the determination of

the amount of gratuity, but also admissibility of a claim.

14. Having regard to the aforesaid, she submits that since, there is

an alternative efficacious remedy available, this Hon'ble Court in

exercise of its extraordinary writ jurisdiction ought not to entertain

the writ application.

15. In support of her aforesaid contention, she has placed reliance on

a judgment delivered by the Hon'ble Supreme Court in the case of

State of Punjab v. Labour Court, Jullunder and Others reported

in (1980) 1 SCC 4. She has also placed reliance on a judgment

delivered by a coordinate Bench of this Hon'ble Court in the case of

Arabinda Sardar v. State of West Bengal and Others in WPA

17711 of 2021 delivered on 21st December, 2021 and a judgment

delivered by the Division Bench of this Hon'ble Court in the case of

Ali Hossain v. M/s. Budge Budge Co. Ltd. & Ors. in FMA 3595 of

2015 delivered on 13th July, 2018.

16. Mr. Samanta, learned Advocate enters appearance on behalf of

the respondent nos.1 and 2. He submits that there is no

irregularity on part of the Controlling Authority in passing the

aforesaid order. Admittedly, the application was filed belatedly. He

submits that the issue of admissibility of a claim can also be

questioned, by filing an application under Section 7(7) of the said

Act. Having regard to the same, he submits no interference is called

for.

17. Heard the learned Advocates appearing for the respective parties

and considered the materials on record. I find that the petitioner

no.1 claims to be an ex-employee of the respondent no.3. The said

fact has, however, not been questioned by the learned Advocate

representing the respondent no.3. It has, however, been the

contention of the respondent no.3 that primarily it was the

obligation of the petitioner no.1 to apply before them, having failed

to apply in time, no belated application could have been entertained

and the Controlling Authority has rightly rejected the said

application. In this context, I must note that although, the

provisions of Section 7(1) of the said Act read with the said Rules

cast an obligation on the employee to apply before the employer

seeking disbursal of the gratuity within the time specified, however,

sub-section (2) of Section 7 of the said Act makes it abundantly

clear that the employer is obliged to make payment of the gratuity

irrespective whether any application has been filed by the employee

under sub-section (1) of Section 7 of the said Act. Section 7(3) of

the said Act mandates that the employer shall arrange to pay the

amount of gratuity within 30 days from the date it becomes payable

to the person to whom the gratuity is payable. A combined reading

of Section 7(1), Section 7(2) and Section 7(3) of the said Act, makes

it abundantly clear that it is the primary obligation of the employer

to make payment of gratuity immediately upon the gratuity

becoming payable. If an employee fails to apply within the time

prescribed in the said Rules before the employer, in my view the

same is not so fatal so as to defeat the substantive right of an

employee.

18. In this case, although, it has been strenuously argued by Ms.

Pandey, learned Advocate representing the respondent no.3 that by

passage of time records have been lost and it is for such reason she

is unable to demonstrate whether gratuity had been paid or had

been denied to the petitioner no.1, I am unable to accept the same.

Simply because the provisions of Payment of Wages Act, 1936

require the employer to maintain the register of records, wages and

receipts for a period of three years, the same does not absolve the

responsibility of the respondent no.3 to demonstrate factum of

payment or denial of gratuity in favour of the petitioner no.1.

19. In this case the petitioner no.1 had filed the application in Form-I

before the respondent no.3 after a considerable delay. The

respondent no.3 did not respond to the same. Thereafter, the

petitioner no.1 applied in form-N before the Controlling Authority.

The said application was accompanied by an application for

condonation of delay. It is not the case of the respondent no.3 that

the application in form-N was filed beyond a period of 3 years from

the date of rejection of the claim for gratuity. The records reveal that

the Controlling Authority did not find the explanation to be

sufficient or satisfactory. By an order dated 17th May, 2023 the

Controlling Authority, by, inter alia, recording that the applicant

having failed to submit application in Form-N within the stipulated

period and having failed to provide any appropriate explanation for

such delay of about 8-9 years, had found the application to be not

maintainable.

20. In this case I find that there has been no determination on the

amount of gratuity payable to the petitioner. The application filed

by the petitioner no.1 had been found to be stale on the ground of

limitation. It is true that an order passed by a quasi-judicial

authority also must be supported by reasons, unless reasons are

given it is very difficult to probe into the mind of the authority and

ascertain what prompted the said authority to reject the claim. In

this case since, the Controlling Authority had found that the

explanation was not sufficient, in my view, the Controlling Authority

ought to have afforded the petitioner no.1 with a further

opportunity to provide the explanation for the delay, especially

when the same concerns enforcement of a substantive right.

21. Be that as it may, since, some reasons have been provided as

noted above and since, an efficacious alternative remedy in the form

of an appeal is available, I am of the view that the petitioner no.1

should approach the Appellate Authority at the first instance who is

also competent to accept the explanation for the delay.

22. Having regard to the aforesaid, the present writ application fails

and the same is, accordingly, dismissed.

23. Since, no affidavit has been called for, the allegations made in the

writ petition are treated not to be admitted by the respondents.

24. There shall be no order as to costs.

25. Urgent certified photocopy of this order, if applied for, be given to

the parties upon compliance of usual formalities.

(Raja Basu Chowdhury, J.)

GD Assistant Registrar (Court)