Food Corporation Of India vs Union Of India & Ors
2023 Latest Caselaw 6056 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 16617 of 2023

                         Food Corporation of India
                                  Versus
                           Union of India & Ors.


For the petitioner       :      Mr. Kamal Kumar Chattopadhyay

For the Union of India   :      Mr. Atarup Banerjee
                                Mr. Praloy Bhattacharya

For the respondent       :      Mr. Pinaki Ranjan Chakraborty

Heard on                 :      12th September, 2023.

Judgment on              :      12th September, 2023.


Raja Basu Chowdhury, J:

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

orders dated 19th March, 2020 passed by the Controlling

Authority under the Payment of Gratuity Act, 1972

(hereinafter referred to as the "said Act") and the order dated 28 th

February, 2023, passed by the Appellate 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 30th June, 2017,

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 the Controlling Authority

by an order dated 19th March, 2020, inter alia, observing that

since, there had been no break in service of the respondent no.4

and the said respondent having duly worked with the petitioner

for 11 years 6 months and 22 days, from 9th June, 1999 to 30th

December, 2010, the respondent no.4 was entitled to payment of

gratuity. The Controlling Authority after determining the gratuity

payable to the respondent no.4, by issuing notice in Form 'R' had

directed disbursal of gratuity in favor of 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

employees of the petitioner. The Appellate Authority on contest by

an order dated 28th February, 2023 was, pleased to dismiss the

said appeal having not found any ground to interfere.

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

12. Mr. Chattopadhyay, 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 30th June, 2017, under no stretch

of imagination can be entitled to payment of gratuity since, the

respondent no.4 did not put in continuous service for a period of

5 years.

15. 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.

16. Per contra, Mr. Chakraborty, learned advocate representing the

respondent no.4, on the other hand 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 petitioner

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.

17. 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.

18. 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

to 30th December, 2010. The Appellate Authority has also

confirmed the order passed by the Controlling Authority.

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

writ petition does not deserve any further consideration and

should be dismissed with costs.

20. Mr. Banerjee, learned advocate representing the Union of

India, submits that there is no irregularity on the part of the

Controlling Authority in passing the aforesaid order. No

interference is called for.

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. Chattopadhyay, 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 30th June,

2017, 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 30th June, 2017.

25. I find that the Controlling Authority by its order dated 19th

March, 2020, has categorically returned the finding that the

respondent no.4 had continuously worked with the employer for

a period of 11 years, 6 months and 22 days from 9th June, 1999

to 30th December, 2010. The aforesaid finding in the light of the

deliberations made hereinabove cannot be said to be perverse.

26. 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

petition fails and is accordingly dismissed.

27. There shall, however, be no order as to costs.

28. Urgent photostat certified copy of this order, if applied for, be

given to the parties upon compliance of necessary formalities.

(Raja Basu Chowdhury, J.)

sb.