Calcutta High Court (Appellete Side)
Food Corporation Of India vs Union Of India And Others on 24 September, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
24-09-2024
ct no. 13
sl. no. 106
sp
MAT 2397 of 2023
CAN 1 of 2024
CAN 2 of 2024
Food Corporation of India
Vs.
Union of India and others
Mr. Devajyoti Barman,
Ms. Sanjukta B. Mullick
... for the appellant.
Mr. Kisor Ray
... for the respondent no. 4.
1. The challenge in the instant
appeal is to a judgment and order
dated 12th September, 2023 passed by
a Single Bench of this Court in WPA
1663 of 2023.
2. By the impugned judgment,
the learned Single Bench has upheld
the order of the controlling authority
dated 1st October, 2019 and the
appellate authority dated 28th
February, 2023 under the provisions
of the Payment of Gratuity Act, 1972.
3. The facts relevant to the
case are that the respondent
workman was one of 49 persons who
was directed to be absorbed within
three months from the date of actual
award of the CGIT dated 9th June,
1999.
4. The award came to be
finally affirmed by the Hon'ble
Supreme Court by judgment and
order dated 9th December, 2014 in
Civil Appeal No. 10856 of 2014.
5. Since the Tribunal, High
Court and the Supreme Court, in the
award and orders referred to
hereinabove, had not ordered back
wages and the date from which they
would be absorbed, the workman
approached the Hon'ble Supreme
Court with the application being IA 1
and 2 of 2016 in C.A. 10856 of 2014.
The Hon'ble Supreme Court by its
order dated 11th May, 2016 at
paragraph 5 and 6 has held as
follows:
"5. A primary circumstance that would
required to be taken into account while
determining a claim for grant of back
wages would be the gainful employment
of the person claiming such back wages.
In the counter affidavit filed by the Food
Corporation of India a letter dated 26 th
June, 2015 issued to the Management
of the Food Corporation of India,
Kolkata office, by the workmen has been
enclosed which would go to show that
the concerned workmen had worked as
casual workers from 3rd July, 1991 to
31st May, 2009. They were prevented
from joining duties for the period 1 st
June, 2009 to 31st December, 2010. For
the subsequent period i.e. from 1st
January, 2011 till their joining in the
post (s) they had worked through a
contractor as security guards.
6. In the light of the above facts evident
from the letter dated 26 th June, 2015
the entitlement of the applicants of the
back wages could be, at best, for the
period from 1st June, 2009 to 31st
December, 2010 and not for any other
period during which they were gainfully
employed."
6. The claim for back wages
was therefore restricted primarily on
the ground that the workmen were
deemed to be working as casual
employees from 3rd July, 1991 till 31st
May, 2009.
7. Pursuant to the decision of
the Hon'ble Supreme Court, the FCI
had by order dated 15th July, 2015
directed absorption of, inter alia, the
respondent workman notionally with
effect from 9th June, 1999. The
workman had actually worked from
5th April, 2016. He superannuated
from service on 31st July, 2017.
8. Upon superannuation, the
workman applied before the appellant
for release of gratuity from 9 th June,
1999 till the date of his
superannuation. The appellant
refused the same. The respondent
workman approached the controlling
authority under the Payment of
Gratuity Act, 1972 by filing an
application under the Form -N.
9. After due enquiry and
procedure, the controlling authority
found that the respondent workman
was entitled to gratuity for the entire
period of service from 9th June, 1999
till the date of superannuation, i.e.,
roughly for a period of 18 years. Upon
an appeal being preferred by the
appellate authority, the order of the
controlling authority was confirmed
on 28th February, 2023. The appellant
challenged the order of the controlling
authority and appellate authority
before a Single Bench of this Court by
way of WPA 16623 of 2023. The writ
petition was dismissed by order dated
12th September, 2023 and hence the
instant appeal.
10. Mr. Devajyoti Barman,
learned counsel appearing for the FCI
has raised a three-fold argument
before this Court. It is submitted by a
reference to Section 2A(ii) of the
Payment of Gratuity Act, 1972 that
the workman was required to
demonstrate before the controlling
authority that he has actually
rendered 240 days of continuous
service for the period from 9th June,
1999. The controlling authority did
not arrive at any such finding. The
order of the controlling authority is,
therefore, in violation of Section 2A(ii)
of the Act of 1972.
11. Mr. Barman next argues
that since payment of gratuity is
linked to actual work rendered by a
workman, the period of less than 2½
years of actual work rendered by the
workman would not entitle him to
gratuity in terms of Section 4 of the
Act of 1972.
12. It is thirdly argued by Mr.
Barman that when the Supreme
Court has declined back wages to the
claim vide order dated 11th May, 2016
(supra), the workmen are estopped
from claiming any gratuity for the
period of notional engagement from
9th June, 1999.
13. This Court has carefully
considered the arguments of Mr.
Barman and the cases cited. There is
a fundamental flaw in the argument
of the FCI.
14. By the letter dated 15th
July, 2015, the workman was
absorbed notionally by the FCI with
effect from 9th June, 1999. This is an
admitted and undisputed position.
Mr. Barman's argument that the
period from 9th June, 1999 till the
date of actual joining of the workman
being 5th April, 2016 would only be
reckoned for the purpose of seniority
pay scale and not for any other
terminal benefits cannot be sustained
in law.
15. Admittedly, the workmen
were treated as retrenched workmen,
entitled to permanent absorption, by
the Hon'ble Supreme Court
distinguishing the decision in the
case of Uma Devi (3) Vs. State of
Karnataka reported in (2006) 4 SCC
1.
16. Even without a formal
direction from the CGIT, the High
Court and the Supreme Court, the
FCI has fairly and justly calculated
the length of service of the workman
which commenced from 9th June,
1999 albeit without any back wages.
The Supreme Court has clarified that
the workman would be entitled to
back wages only for the period from
1st June, 2009 to 31st December, 2010
since it was deemed that they were
engaged casually for the remaining
period.
17. It is now well-settled that
even a retrenched workman is entitled
to gratuity. Reference in this regard is
made to the decision of State of
Punjab Vs. Labour Court reported in
1981 SCR 953.
18. Once having notionally
treated the respondent workman on
service since 9th June, 1999, the
appellants are duty bound in law and
particularly, under the Act of 1972 to
pay gratuity to the workman. The
question of any further enquiry as to
whether the workman has rendered
240 days of continuous service with
the appellant or has served for a
minimum period of 5 years, does not
and cannot arise in the facts and
circumstances of the case.
19. It is in this light that the
decision in the case of Sri Digvijay
Woollen Mills Ltd. Appellant Vs.
Mahendra Prataprai Buch,
Respondent reported in 1984 SC
106 would have no manner of
application. Consequently, the
decision of the Division Bench of the
Madras High Court in the case of P.
Malligarjunan & Others. Appellant
Vs. The Joint Commissioner of
Labour, (Appellate Authority under
the Payment of Gratuity Act,
1972), Coimbatore & Others,
Respondent reported in 2021 SC
(Mad) 1890 would also not be
applicable.
20. Equally not applicable is
the decision of the Supreme Court in
the case of Chief Engineer, Ranjit
Sagar Dam & Anr., Appellants Vs.
Sham Lal, Respondent reported in
(2006) 9 SCC 124. The said decision
concerns the burden of proof being on
the workman to show that he worked
240 days in a year for a period of 5
years. The said provisions are
rendered inapplicable and academic
in view of the decision of the Supreme
Court upholding and the FCI itself,
notionally absoring the workman from
9th June, 1999.
21. Once a person is notionally
absorbed from a particular day, the
said day becomes crucial and vital for
the length of actual service rendered
by such workman with the industry
concerned. Gratuity is one of the most
vital components of terminal benefits
payable to a workman or any other
employee. It may end up being the
only source of sustenance post
superannuation.
22. In view of the above
discussions made hereinabove, this
Court does not find any infirmity in
the impugned judgment and order
dated 12th September, 2023 passed by
a Single Bench of this Court in WPA
1663 of 2023.
23. Hence, the appeal is
dismissed.
24. The workman shall be
entitled to gratuity as per the
applicable rules together with interest
@ 10% per annum from the date of
superannuation till the date of actual
payment.
25. In view of the above, CAN 1
of 2024 and 2 of 2024 shall stand
disposed of.
26. Interim orders, if any, shall
stand vacated.
27. There shall be no order as
to costs.
28. Let the T.C.R. be returned,
if any, to the Court below.
29. The registry shall
communicate a copy of this order to
the Court below.
30. Urgent photostat certified
copy of this order, if applied for, be
given to the parties upon compliance
of all formalities
(Rajasekhar Mantha, J.)
(Ajay Kumar Gupta, J.)
