Calcutta High Court (Appellete Side)
Delta Limited vs Toyeb Ali Midday & Ors on 8 September, 2023
6-7
08.09.2023
Court No. 12
I.T (p.a)
MAT 1266 of 2021
With
CAN 1 of 2021
Delta Limited
Vs.
Toyeb Ali Midday & ors.
With
FMA 322 of 2023
Arindam Banerjee
Vs.
Toyed Ali Midday
Mr. Soumya Majumder,
Ms. Amrita Pandey,
Ms. Anamika Pandey,
Mr. ghanshyam Pandey,
Ms. Sneha Singh.
... for the appellant
In MAT 1266 of 2021
Mr. R. Guha Thakurta,
Ms. Sanjuti Sengupta,
Ms. Dipa Roy.
...for the respondents
Mr. Bipin Ghosh.
...for the State
In MAT 1266 of 2021
Mr. Pingal Bhattacharyya,
Mr. Rajdeep Sinha.
...for the appellant
In FMA 322 of 2023
Mr. Soumya Majumder,
Ms. Amrita pandey,
Ms. Anamika Pandey.
... for the respondent no.4
In FMA 322 of 2023
Two appeals, being MAT No. 1266 of 2021 and
FMA No. 322 of 2023 arise out of the same judgment
of the Hon'ble Single Bench dated 11.11.2021, in writ
petition being WPA No. 3437 of 2020. Hence, both
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the appeals are being taken up for disposal by dint of
this common order.
The issue relates to payment of gratuity to the
respondent No. 1/retired employee, of the appellant
company, in appeal being MAT No. 1266 of 2021. The
respondent No. 1 joined in the appellant jute mill on
27. 4. 1970 and was superannuated from there on
29. 5. 2003. Hence, upon his superannuation he was
entitled to gratuity along with other applicable retiral
benefits. However, he was denied by the appellant
any payment as to gratuity. That has prompted the
respondent No. 1 to initiate a case before the
Controlling Authority, as envisaged under the
Payment of Gratuity Act, 1972, that is, respondent
No.3 in this appeal, for recovery of gratuity. The
Assistant Labour Commissioner, being the
Controlling Authority, concluded the proceedings and
came to the finding that an amount of ₹ 1,83,119.00
was payable by the appellant mill, to the respondent
No. 1. A requisition for a certificate was sent by the
Assistant Labour Commissioner, to the Certificate
Officer, for recovery of the said amount of money and
its payment to the claimant/respondent No. 1.
Upon receipt of the requisition from the
Assistant Labour Commissioner, as mentioned
above, the Certificate Officer initiated a case under
the Bengal Public Demands Recovery Act, 1913. In
the said proceedings the Certificate Officer had
ultimately recorded his dissatisfaction regarding non-
compliance of the Rules under the Gratuity Act, 1972
by the Controlling Authority in assessing the amount
of gratuity, as said to be payable to the respondent
No. 1 and vide his order dated 21.10.2019 rejected
the requisition for certificate, in exercise of power
3
under section 6 of the Bengal Public Demands
Recovery Act, 1913.
Order of the Certificate Officer dated
21.10.2019 was impugned in the writ petition as
above. The Hon'ble Single Bench has decided the
matter on merits and pronounced its verdict by dint
of the judgment dated 11.11.2021, which is under
challenge in both the appeals, being adjudicated by
dint of the present order.
The following directions were made by the
Hon'ble Single Bench, in its judgment dated
11.11.2021:
"(i) The impugned order of the Recovery
Officer dated 21.10.2019 (at annexure Page -5 of
the writ application) is set aside and quashed.
The present CO shall execute the order of
payment of gratuity as appears from annexure P-
1 of the writ application following Section 8 of the
Payment of Gratuity Act, 1972 forthwith.
(ii) That particular Recovery Officer who
dealt with the gratuity case NO 72/15/G/HOW
and ultimately rejected the certificate shall be
dealt with under Section 9 (1) of the Payment of
Gratuity Act 1972 and for this purpose the
Principal Secretary, or the Secretary Labour
Department, Government of West Bengal, as the
case may be shall make a complaint against that
particular Recovery officer, who I am told is still
in service, for taking cognizance of offence under
Section 9 (1) of the said Act to the appropriate
Magistrate within a period of two weeks from the
date of communication of this judgment and order
to him.
(iii) The Authority under the Payment of
Gratuity Act, 1972 shall calculate the rate of
interest including the compound interest on the
gratuity amount from the date of default for
payment of gratuity and shall communicate the
same to the respondent No. 4 within a period of 4
weeks from the date of communication of this
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order who shall pay the said amount along with
payment of gratuity to the petitioner.
(iv) The vigilance Commissioner of State of
West Bengal is directed to initiate an inquiry
against the particular Certificate Officer who
dealt with the gratuity Case No 72/15/G/HOW
and passed the order dated 21.10.2019 and to
take all steps required for enquiring the action of
the said particular Recovery Officer and to take
subsequent action thereafter.
(v) If the due gratuity amount and the
interest including compound interest is not paid
by the Respondent No.4 namely M/s. Delta
Limited to the writ petitioner the appropriate
Government and the Controlling Authority shall
take immediate steps for Recovery of the gratuity
amount with the interest including the compound
interest thereon."
The appellant/jute mill has challenged the
impugned judgment as above on various grounds.
Mr. Majumder, representing the appellant, has firstly
argued that the entire procedure of assessment of
gratuity by the Controlling Authority and the
penultimate steps taken by it for ensuring recovery of
the amount of gratuity suffer from absolute lack of
due compliance with the statutory provisions. To
elaborate this point, Mr. Majumder has pointed out
that the controlling authority has violated the
mandatory statutory provision of sending requisition
in 'Form - 7', to the Certificate Officer. According to
him non-compliance of such mandatory provision of
law has vitiated the entire process of assessment of
gratuity and recovery thereof. The entire process has
also been flawed due to non-adherence of the
principles of natural justice by the competent
authority, he says. As his client/the appellant mill
was about to face an order adverse to its interest,
according to Mr. Majumder it was bounden duty of
the Authority to afford his client an opportunity of
hearing before any process of recovery of any money
5
from it, was initiated. Lastly, Mr. Majumder
expressed his client's grievance as to imposition of
cost of an amount of ₹ 5 lakhs upon his client by the
Hon'ble Single Bench, which he says is baseless,
unreasoned and prejudicial to his client's interests.
Mr. Bhattacharyya, who is representing the
appellant in FMA No. 322 of 2023, has firstly adopted
the entire argument advanced on behalf of the
appellant in MAT No. 1266 of 2021. The other limb of
his argument is that the order of the Hon'ble Single
Bench for initiation of proceedings against his client,
both departmental and criminal, is coercive,
unjustified, baseless and illegal. He has further
proceeded to justify the bona fide and due discharge
of official duty by his client, in dealing with the
matter placed before him. The appellant here is the
Certificate Officer, whose order dated 21.10.2019,
was under challenge before the Hon'ble Single Bench.
According to Mr. Bhattacharyya, his client cannot be
subjected to any punitive provision of law without
following the due procedure there for and the
directions of the Hon'ble Single Bench as above
against his client are only unwarranted.
On behalf of the appellants in both the
appeals, it has been urged that the impugned
judgment of the Hon'ble Single Bench may be set
aside.
Mr. R. Guha Thakurta has represented the
respondent No. 1/employee, in both the appeals. He
submits that employee's grievance is now mitigated
as the appellant company has already remitted the
entire gratuity amount, as was calculated and stood
payable and outstanding, along with the applicable
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interest thereon. However, so far as the legality of the
order of the Certificate Officer dated 21.10.2019 is
concerned, Mr. R. Guha Thakurta's stand is
absolutely antithetical to that what has been
submitted on behalf of the appellants, in both the
appeals. Mr. R. Guha Thakurta has strongly objected
to the contention of the appellants that the said order
of the Certificate Officer has been in conformity with
the law and also that the judgment of the Hon'ble
Single Judge, impugned in these appeals, suffers
from any illegality whatsoever.
So far as the merits of the matter are
concerned, this Court holds that the order passed by
the Controlling Authority determining payment of
gratuity and the assessment of the amount payable
under section 7 of the payment of Gratuity Act, 1972,
has become final, being not challenged by the
present appellant, though being appealable under
the statutory provisions. Thus as regards this, no
challenge or dispute would be sustainable and there
is practically none.
Dispute here revolves around the process of
recovery of the amount of gratuity, so determined. As
per section 8 of the said Act of 1972, which provides
for "recovery of gratuity", the Controlling Authority
would issue requisition of certificate to the District
Collector for recovery of the amount of gratuity, along
with the interest, as arrears of land revenue and pay
the same to the person entitled. Now, for execution of
the certificate and recovery of the amount of gratuity
determined by the Controlling Authority, provisions
under section 14 of the Bengal Public Demands
Recovery Act, 1913, would be resorted to, in absence
of any specific provision for the same promulgated
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under the Payment of Gratuity Act, 1972. Any one or
more modes of recovery, as promulgated thereunder,
would be undertaken.
By virtue of section 14 of the Payment of
Gratuity Act, 1972, the requirement of due
compliance under sections 5 and 6 of the Bengal
Public Demands Recovery Act, 1913, becomes
unnecessary and redundant. The finding of the
Hon'ble Single Judge, in this regards leaves no scope
of any doubt, as regards its correctness. Let the said
provisions under section 14 of the Payment of
Gratuity Act, 1972 and sections 5 and 6 of the
Bengal Public Demands Recovery Act, 1913, be
extracted hereinbelow for the benefit of discussion :
Payment of Gratuity Act, 1972
"14. Act to override other enactments,
etc. --The provisions of this Act or any rule made
thereunder shall have effect notwithstanding
anything inconsistent therewith contained in any
enactment other than this Act or in any instrument
or contract having effect by virtue of any
enactment other than this Act."
*****************
Bengal Public Demands Recovery Act, 1913
"5. Requisition for the certificate in
other cases.-- (1) When any public demand
payable to any person other than the Collector is
due, such person may send to the Certificate
Officer a written requisition in the prescribed form:
Provided that no action shall be taken under
this Act on a requisition made by a land mortgage
bank registered or deemed to be registered under
the Bengal Co-operative Societies Act, 1940
(Bengal Act No. 21 of 1940), or an assignee of such
bank, unless the requisition be countersigned by
the Registrar of Co-operative Societies, West
Bengal.
(2) Every such requisition shall be signed and
verified in the prescribed manner, and, except in
such cases as may be prescribed, shall be
chargeable with the fee of the amount which
would be payable under the Court-fees Act, 1870
(VII of 1870), in respect of a plaint, for the recovery
of a sum of money equal to that stated in the
requisition as being due.
6. Filing of certificate on requisition.--
On receipt of any such requisition, the Certificate
Officer, if he is satisfied that the demand is
recoverable and that recovery by suit is not barred
by law, may sign a certificate, in the prescribed
form, stating that the demand is due; and shall
include in the certificate the fee (if any) paid under
section 5, sub-section (2); and shall cause the
certificate to be filed in his office."
According to the law of the land, the
Certificate Officer, while executing a certificate is not
empowered to sit in appeal as regards the
determination of gratuity or the requisition of
certificate issued by the Controlling Authority are
concerned. Invariably there is no power available for
the Certificate Officer to go into the merits of the
determination of gratuity payable. So far as the
findings of the Hon'ble Single Judge regarding the
Certificate Officer not to be an appellate authority of
the Controlling Officer - is concerned, this Court has
no hesitation to place concurrence with the said
finding. Thus, as it has been rightly held by the
Hon'ble Single Judge, that the order of the Certificate
Officer dated 21.10.2019 is dehors law and not
sustainable being illegal. The submissions of the
appellants that piecemeal exercise of the provisions
of the Bengal Public Demands Recovery Act, 1913,
would be an impractical proposition, has also not
inspired much confidence in the minds of this Court
in so far as on the particular issue of recovery of
gratuity under the 1972 Act, the Bengal Public
Demands Recovery Act, 1913 has only limited
application, to the extent of section 14 thereof. We
have to understand that the present case in one
under the1972 Act and not one under the 1913 Act.
The challenge of the appellant as to the non-
compliance of the provision under section 8, first
proviso, by the Controlling Authority regarding not
affording the appellant an opportunity of showing
cause, before issuance of a certificate, ought not to
be considered as a formidable defence on its part, in
so far as the facts of non-appearance of the appellant
before the Controlling Authority during the
proceedings under section 7 of the said Act or the
decision of the same being final in this regard, having
not been challenged by the appellant within the
statutory period of time, would have rendered such
exercise, if any, as an empty formality only. Evidently
the appellant was motivated to avoid the proceedings.
Now it should be prevented to put up a defence wall
in the garb of seeking due compliance of the said
provision, as its intention to allow the Controlling
Authority to proceed ex-parte in determination of
gratuity and taking shelter under some other
provision of law at a later and belated stage, on the
plea of non-compliance of the same is anything but
bonafide. Implementation of the provisions of a social
security legislation like the Payment of Gratuity Act,
1972, cannot be based on malafide intentions of an
escaping and evading employer.
Rest remains, the challenge of the appellants
against the Court's directions for initiation of
criminal and also the departmental proceedings
against the Certificate Officer and that for payment of
cost of Rs.5 Lacs against the appellant/jute mill. To
controvert the submissions on behalf of the
appellants in this regard, as to the coerciveness,
unjustifiability and prejudicial impact of those
directions upon the appellants, Mr. R. Guha
Thakurta has submitted on behalf of the respondent
No.1, that the Hon'ble Single Judge, upon
considering all the materials on record only, has
formed opinion about the malicious procedure
undertaken by the respective appellants and has
passed the directions as above to answer the
imminent injustice appeared to have happened due
to the latches of the said appellants, which favoured
wrongful gain to the appellant/ jute mill and may not
be termed as only unintentional.
This Court is of the opinion that the well
elaborated and well reasoned judgment of the
Hon'ble Single Bench (impugned in these appeals),
has spoken enough as to why an erudite office of the
government, is found to have deviated from the
standard of efficiency, impartiality and righteousness
with which it would be expected to function and
discharge the sacred public duty. This Court finds
absolutely no reason to interfere with the same,
having endorsed the reasons stated therein. Punitive
provisions are statutory mandates and the Courts
have power to require due execution of the same in
an appropriate case. The Hon'ble Single Judge has
called for the case record from the office of the
Controlling Authority and only after a thorough
scrutiny of the same, as duly reproduced in the
impugned judgment as above, has founded the
opinion to undertake necessary punitive actions. To
interfere with the same would amount to infringing
the flare of independent exercise of power by the
Court. It is pertinent to mention here that the finding
and the directions of the Hon'ble Single Bench as
above, have not been tainted with any illegality or
undue exercise of power not vested in the Court. On
the contrary, the Court's directions are in terms of
and pursuant to the provisions under section 9 of the
Act of 1972. The directions as above appear to be
based on reasonable objective considerations of the
materials on record. As such so far as the said
specific directions of the Hon'ble Single bench are
concerned, this court is not motivated to interfere
with the same too.
On the discussions as above, both the appeals
fail.
Two appeals, being MAT No. 1266 of 2021
and FMA No. 322 of 2023 are dismissed. The
judgment of the Hon'ble Single Bench dated
11.11.2021, in writ petition being WPA No. 3437 of
2020, is upheld with the further direction for
immediate compliance with all the mandates made
therein.
Urgent certified photocopy of this order, if
applied for, be supplied to the parties expeditiously
on compliance of the usual legal formalities.
(V.M Velumani, J.)
(Rai Chattopadhyay, J.)
