The Management Of Hotel Ashok vs Deputy Labour Commissioner & Anr
2011 Latest Caselaw 3249 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 11th July, 2011

+                                   W.P.(C) 8591/2008

        THE MANAGEMENT OF HOTEL ASHOK             ..... Petitioner
                   Through: Mr. Karunesh Tandon, Advocate.

                                    Versus

        DEPUTY LABOUR COMMISSIONER
        & ANR                                     ..... Respondents
                    Through: Mr. L.A. Vashishtha and
                             Mr. Sunil Gautam, Advocate for R-2.

        CORAM:
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

        1.       Whether reporters of Local papers may                       No
                 be allowed to see the judgment?

        2.       To be referred to the reporter or not?             No

        3.       Whether the judgment should be reported            No
                 in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns, (i) the order dated 27th December, 2006 of

the Controlling Authority under the Payment of Gratuity Act 1972 holding

that the respondent no.2 Mr. Vinod Saxena is entitled to an amount of

Rs.2,90,150/- as gratuity from the petitioner and directing the petitioner to

pay the said amount to the respondent no.2 together with interest at 10% per

annum till the date of payment; and (ii) the order dated 6 th February, 2008 of

the Appellate Authority under the said Act dismissing the appeal of the

petitioner.

2. A perusal of the orders shows that there was no dispute that the

respondent no.2 upon superannuation from the employment with the

petitioner was entitled to gratuity in the sum of Rs.2,90,143/-. The said

gratuity was not paid by the petitioner owing to the respondent no.2 having

not been able to obtain No Dues Certificate from the Chanakya Co-operative

Thrift & Credit Society Ltd, as required to obtain as per the Form prescribed

by the petitioner for release of gratuity. The orders further record that a sum

of Rs.90,243/-was stated to have been due from the respondent no.2 to the

said Society.

3. Though the counsel for the petitioner has argued that there is an

agreement between the Society and the petitioner that the amounts due to the

Society from its members who are employees of the petitioner shall be

deducted from the salary and the remaining dues if any from the gratuity, but

the said agreement has not been placed on record. The authorities under the

Gratuity Act held the action of the petitioner of withholding the gratuity

owing to the aforesaid reason to be invalid and not within the ambit of

Section 4(6) of the Act.

4. The counsel for the petitioner while reiterating the same argument

before this Court has in addition also contended that the orders passed by the

Controlling Authority and the Appellate Authority are without jurisdiction

inasmuch as in the case of the petitioner, being an establishment belonging to

or under the control of the Central Government and having branches in more

than one State, the "appropriate Government" in terms of Section 2(a) of the

Act is the Central Government. It is contended that the respondent no.2

approached the Controlling Authority and the Appellate Authority appointed

by the State Government and not by the Central Government and their orders

are therefore liable to be set aside.

5. This Court while issuing notice of the petition had stayed the operation

of the said orders. It is however informed that as a condition for filing the

appeal, the amount in terms of the order of the Controlling Authority was

deposited before the Appellate Authority and which had been released to the

respondent no.2 even prior to filing of this petition. The counsel for the

respondent no.2 however states that a further sum of approximately

Rs.35,000/- is still due to the respondent no.2 in terms of the order of the

Controlling Authority.

6. The counsel for the petitioner inspite of being called upon to, has been

unable to show any provision in the Act whereunder the petitioner would be

entitled to withhold or make such deduction from the gratuity amount due to

the respondent no.2.

7. Section 4(6) of the Act permits only the amounts specified therein to

be deducted from the amount of gratuity. The amount if any owed by the

respondent no.2 to the Society aforesaid does not admittedly fall within the

ambit of Section 4(6). The Supreme Court in Jaswant Singh Gill v. Bharat

Coking Coal Ltd. (2007) 1 SCC 663 reiterated that the Act is a complete

code creating not only a right to payment of gratuity but also laying down the

principles for quantification thereof as also the conditions on which it may be

denied. Right to gratuity is a statutory right and the Act contains an

unequivocal and unambiguous mandate for payment of gratuity. The

Supreme Court in the said judgment held that non statutory rules framed by

the employer for withholding gratuity on grounds other than those provided

under Section 4(6) cannot prevail over the provisions of the Act. It was held

that Section 4(6) has to be scrupulously observed and if the conditions laid

down therein are not satisfied, gratuity has to be paid. No error is thus found

in the orders impugned, of the amounts if any due by the respondent no.2 to

the Society being not deductible from the amount of gratuity payable by the

petitioner.

8. It has been enquired from the counsel for the petitioner, as to why the

present petition was preferred when the monies in terms of the orders

impugned already stood paid. The counsel replies that this petition was

necessitated owing to the respondent no. 2 having preferred complaint of

unfair labour practice within the meaning of Section 2(ra) of the Industrial

Disputes Act against the Managing Director of the petitioner. The counsel for

the respondent no.2 has fairly stated that subject to the balance amount if any

being released to the respondent no.2 within eight weeks of today, the

respondent no.2 is not interested in pursuing the said complaint.

9. In the circumstances, it is not deemed expedient to adjudicate upon the

plea, of the authorities whose orders are impugned being not competent to

deal with complaints of withholding/non-payment of gratuity of employees

of the petitioner.

10. Accordingly, the petition is disposed of as follows:

A. It is declared that the respondent no.2 is entitled to the entire gratuity amount as found due by the Controlling Authority together with interest at 10% per annum from the date of superannuation till

the date of deposit of the amount by the petitioner with the Appellate Authority.

B. If there is any deficiency in the amounts so deposited, the same be paid to the respondent no.2 within eight weeks of today. The petitioner is directed accordingly.

C. If there is any controversy as to the amount due in terms of this order, the parties if unable to resolve the same themselves shall have liberty to approach this Court.

D. The respondent no.2 shall within two weeks from today withdraw the complaint aforesaid preferred by him.

No order as to costs.

RAJIV SAHAI ENDLAW, J JULY 11, 2011 M