Jharkhand High Court
Br. Baliram Beldar vs The Project Officer on 22 October, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 282 of 2018
Br. Baliram Beldar ... ... Petitioner
Versus
The Project Officer, Block-II O.C.P. Mines, Distt- Dhanbad and
Others ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Nipun Bakshi, Advocate
: Mr. Shubham Sinha, Advocate
For the Resp.- BCCL : Mrs. Prerna Jhunjhunwala, Advocate
For the UOI : Kumari Ranjana Singh, Advocate
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14/22.10.2024 Heard the learned counsel appearing on behalf of the parties.
2. This writ petition has been filed for setting-aside the order
dated 27.12.2017 (Annexure-9) passed in P.G. Appeal No. (18)/2017-
A.7 by respondent no.2 under Payment of Gratuity Act, 1972
whereby the order dated 17.05.2017 (Annexure-5) in (P.G.
Application) No. 36(78)/2015-E passed by the respondent no.3 has
been modified and it has been held that gratuity of the petitioner for
service beyond 30 years will be determined by taking one month as 26
days instead of 30 days as was held by the respondent no.3 .
Arguments of the petitioner.
3. The sole point involved in the present case is -
For calculation of gratuity for service rendered beyond 30
years whether one month would be taken as 26 days (after
deducting 4 Sundays) or it has to be taken as 30 days?
4. The petitioner was engaged as casual loader by the respondents
in the year 1973 and was absorbed on 10.09.1980. After completion of
period of service of more than 30 years, he attained the age of
superannuation on 30.06.2011.
5. The petitioner filed an application for payment of differential
gratuity amount of Rs. 2,16,956/- which was registered as PG Case
No. 36/(78)/2015-E-4. The petition was allowed by the respondent
no.3 and the employer was directed to pay a sum of Rs. 2,16,955/- in
accordance with the provisions of section 4(5) of Payment of Gratuity
Act, 1972 (hereinafter referred to as the Act of 1972) .
6. The employer filed an appeal which was registered as PG
Appeal No. 18/2017-A- 7 and the appellate authority (respondent
no.2) allowed the appeal in part by holding that the period of one
month has to be taken as 26 days and calculation has to be made
accordingly. Consequent upon the order passed by the appellate
authority, the gratuity amount was reduced and the reduced amount as
per calculation made by the appellate authority has already been paid
to the petitioner.
7. The learned counsel for the petitioner, while assailing the
impugned order, has submitted that the provision of section 4(5) of the
Act of 1972 is applicable in the present case, but the impugned order
has been passed as if the proceeding was under section 4(2) of the Act
of 1972.
8. While referring to section 4 of the Act of 1972, the learned
counsel for the petitioner has submitted that there are two different
provisions; one under section 4(2) and the other under section 4(5). He
has submitted that as per the provisions of section 4(5) nothing in the
section 4 shall affect the right of an employee to receive better terms
of gratuity under any award or agreement or contract with the
employer. The learned counsel submits that the petitioner was seeking
payment of gratuity in terms of Clause 9.1.4 of National Coal Wage
Agreement No. III (NCWA-III). He submits that National Coal Wage
Agreement has statutory force in terms of the judgment passed by the
Hon'ble Supreme Court in the judgment reported in (2007) 8 SCC 549
(Mohan Mahto Vs. Central Coal Field Ltd. and Others) and clause
9.1.4 of NCWA was more beneficial to the petitioner. He has
submitted that under Clause 9.1.4 there is a clear mandate that for
service beyond 30 years, gratuity shall be calculated at the rate of one
month's wages last drawn by the employee for every completed year
of service and there is no stipulation therein that one month would be
calculated as 26 days after deducting the holidays. He has also
submitted that the term one month, as mentioned in Clause 9.1.4 of
NCWA, has to be interpreted by golden rule of interpretation of
statute and the plain meaning of the words mentioned therein is
required to be considered. He has also submitted that as per the
ordinary grammatical sense one month means 30 days and not 26 days
and for which, he has referred to General Clauses Act [section 3(35)].
9. The learned counsel for the petitioner has further submitted that
the controlling authority, while passing the order was conscious of the
fact that the Clause 9.1.4 of NCWA is a provision which would be
covered by section 4(5) of the Act of 1972 and has accordingly
calculated the gratuity amount for the service beyond 30 years by
taking one month as 30 days. The learned counsel has also submitted
that while considering the aforesaid aspect of the matter, the
controlling authority had also relied upon the judgment passed by
Hon'ble Bombay High Court, Nagpur Bench in the case reported in
2015 (145) FLR 1055 [Western Coalfields Limited Vs. Babulal
Athankar (Dead) by Lrs.]. In the said judgment, the provision of
section 4(5) of the Act of 1972 was taken into consideration along
with the provision of National Coal Wage Agreement and there was
also a reference of the implementation circular issued by the Coal
India Limited which was dated 26.04.1984 . The learned counsel has
submitted that the case of the petitioner is fully covered by the
judgment passed by Hon'ble Bombay High Court in the case of
Babulal Athankar (Supra) and no interference was called for by the
appellate authority.
10. While referring to the judgment passed by the appellate
authority (Annexure- 9), the learned counsel for the petitioner has
submitted that the learned Appellate Authority framed two issues and
the parties herein are concerned only with issue no. 2. He submits that
while deciding the issue no. 2, the appellate authority held that the
days per month beyond 30 years of service for each year would be
taken as 26 days and not 30 days and has wrongly distinguished the
judgment passed by the Hon'ble Bombay High Court in the case of
Babulal Athankar (Supra).
Arguments of the respondent (employer)
11. Learned counsel appearing on behalf of the respondent- BCCL,
while opposing the prayer, has submitted that there are two
implementation circulars issued under NCWA and they were issued
by Joint Bipartite Committee for the Coal Industry governing the
payment of gratuity to the workmen; one was dated 26.04.1984 and
another was dated 21.05.1987. She has referred to those circulars and
has submitted that vide circular dated 26.04.1984, the mode of
calculation has been provided and it has been mentioned therein that
amount of gratuity for service beyond 30 years would be payable by
referring to one month's wages appearing in Clause 9.1.4 to mean 26
days' last drawn salary and accordingly, gratuity will be calculated as
follows: -
1 day wage X 26 days X number of completed years of
service beyond 30 years.
12. The learned counsel has also referred to the circular dated 21 st
May 1987 and has submitted that the issue was further examined and
it was clarified that the employees who have put in service upto 30
years will be eligible for gratuity as per the provisions of Act of 1972
and not as per the illustration. The circular and illustration was
modified to the said extent. She submits that the other conditions of
1984 circular remained unaltered even while issuing the subsequent
circular dated 21st May 1987 and what was modified was only with
respect to the payment of gratuity for those who have put in service
upto 30 years.
13. The learned counsel for the respondent-BCCL has relied upon
the judgment passed in the case reported in (2018) 9 SCC 529 (Union
Bank of India and others Vs. C.G. Ajay Babu and Another) and has
submitted that with respect to the provisions of the Act of 1972, it has
been held that the act must prevail over the rules framed by the
employer on payment of gratuity and the provision of section 4(2)
(explanation) of the Act of 1972 is binding on the parties.
14. The learned counsel has submitted that the explanation to
section 4(2) of the Act of 1972 was added in order to clarify that in
case of monthly rated employee, the 15 days wages for payment of
gratuity shall be calculated as follows:-
monthly rate of wages last drawn by the employee X 15 days
She submits that the introduction of said explanation was preceded by
the judgment passed by the Hon'ble Supreme Court in the case
reported in (1980) 4 SCC 106 (Shri Digvijay Woollen Mills Ltd. Vs.
Shri Mahendra Prataprai) and has referred to paragraphs 4 and 5 of
the said judgment.
Rejoinder argument of the petitioner.
15. The learned counsel appearing on behalf of the petitioner, in
response, has submitted that the present case is governed by section
4(5) of the Act of 1972 and not by section 4(2) and in such
circumstances, the explanation which has been appended to section
4(2) would not come into play and the provision of National Coal
Wage Agreement would prevail. He has also submitted that agreement
is between the Union of the workmen and the employer i.e. various
coal companies and the same cannot be modified by virtue of
implementation circulars.
16. The learned counsel for the petitioner has relied upon reply
affidavit filed on behalf of the petitioner dated 07.12.2022 and has
submitted that from bare perusal of the circular dated 26.04.1984 it is
apparent that though the heading is "Joint Bipartite Committee for
Coal Industries" but the same has been issued only by the Chief of
Personnel of Coal India Limited. The learned counsel has referred to
clause 12.3.1 of National Coal Wage Agreement-III to submit that it
provides for mutual implementation of the NCWA for resolution of
doubt and it mandates that the management of coal companies will not
resort to any unilateral interpretation of NCWA .
17. Learned counsel for the petitioner has also submitted that the
respondents, during the course of argument, have not been able to
distinguish the judgment passed by Hon'ble Bombay High Court in the
case of Babulal Athankar (Supra) and even if the said judgment is
not binding on this Court, but certainly it has persuasive value.
18. The learned counsel has also submitted that the judgment
passed by Hon'ble Bombay High Court in the case of Babulal
Athankar (Supra) was rightly relied upon by the controlling authority
and while distinguishing the said judgment, the learned Appellate
Authority has recorded that the implementation instruction of NCWA-
III was not cited before the Hon'ble Bombay High Court although on
perusal of the said judgment passed by Hon'ble Bombay High Court, it
appears that the implementation circular was placed . He has
submitted that the appellate authority in the present case has
committed error of record by observing that the implementation
instructions were not placed. He has also submitted that in the present
case , the said circular dated 26.04.1984 was relied upon by the
employer for the first time before the appellate authority .
19. So far as the implementation instruction issued in the year 1987
is concerned, the same was neither placed before the controlling
authority nor was placed before the appellate authority and it has been
relied upon by the employer for the first time through the counter-
affidavit. He has submitted that otherwise also, the 1987 circular
simply modifies the 1984 circular so far as it relates to payment of
gratuity for a period less than 30 years which has no bearing in the
present case. He submits that in the present case only the payable
gratuity for the period beyond 30 years of service is involved.
20. Arguments concluded.
21. Post this case on 29th October 2024 for judgment.
(Anubha Rawat Choudhary, J.)
Pankaj
