Madras High Court
The Chairman vs The Regional Labour Commissioner ... on 19 July, 2021
W.P.Nos.41432 & 41433 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.41432 & 41433 of 2005
and M.P.Nos.43880 & 43881 of 2005
W.P.No.41432 of 2005
1. The Chairman
Indian Telephones Industries Limited
Corporate Office, ITA Bhavan,
Doorvani Nagar, Bangalore – 560 016.
2. The Chief Regional Manager,
Indian Telephones Industries Limited
129, Greams Road, Chennai – 600 006 ... Petitioners
-vs-
1. The Regional Labour Commissioner (C)
Appellate Authority under the payment of Gratuity Act
No.26, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
2. Controlling Authority
Assistant Labour Commissioner (C)
No.26, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
1/10
https://www.mhc.tn.gov.in/judis/
W.P.Nos.41432 & 41433 of 2005
3. R.Janarthanam .... Respondents
Prayer: Writ petition is filed under Article 226 of the Constitution of India,
praying to issue a writ of Certiorari, calling for the records on the file of the
1st respondent in G.A.No.40 of 2005 and its order dated 17.10.2005 and
quash the same.
For Petitioner : Mrs.Rita Chandrasekar
for M/s.Aiyar & Dolia
For Respondents : Mr.E.Palani for R1 & R2
No appearance for R3
W.P.No.41433 of 2005
1. The Chairman
Indian Telephones Industries Limited
Corporate Office,
ITA Bhavan,
Doorvani Nagar,
Bangalore – 560 016.
2. The Chief Regional Manager,
Indian Telephones Industries Limited
129, Greams Road,
Chennai – 600 006 ... Petitioners
Vs
1. The Regional Labour Commissioner (C)
Appellate Authority under the payment of Gratuity Act
No.26, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.41432 & 41433 of 2005
2. Controlling Authority
Assistant Labour Commissioner (C)
No.26, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
3. Mr.K.R.Krishnamoorthy .... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of
India, praying to issue a writ of certiorari by calling for the records on the file
of the 1st respondent in G.A.No.39 of 2005 and its order dated 17.10.2005
and quash the same.
For Petitioner : Mrs.Rita Chandrasekar
for M/s.Aiyar & Dolia
For Respondents : Mr.A.S.Vijayaraghavan for
R1 & R2
Mr.S.Baskaran for R3
COMMON ORDER
These present Writ Petitions have been filed by the Management,
questioning the order of the Appellate Authority / 1st Respondent, by which,
the order of the Controlling Authority was reversed and gratuity amount was
determined by the Appellate Authority.
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W.P.Nos.41432 & 41433 of 2005
2. It is the case of the Management that the 3rd Respondent / Employee
was employed by the Management on 28.04.1990 and he, after rendering a
number of years of service, retired from service on Voluntary Retirement
Scheme on 30.10.1998. The Management has decided to revise the pay of
employees in the light of the Circular dated 21.07.2000, issued by the
Government of India, Ministry of Communication, Department of
Telecommunication and the relevant Clause of the Circular dated 21.07.2000
is extracted below.
“(ii) payment of revised salary will be made with effect
from 01.04.2000 and the arrears from 01.01.1997 to 31.03.2000
will be paid later in a phased manner on the improvement of the
profitability position of the Company, generation and availability
of funds.
(iii) the pay revision would be dated to the components of
pay only and ITI should avoid the revision of perquisites and
perquisites related allowances. Para 12 of the order No.2
(49/98-DPE(WO) dated 25.06.1999 may be implemented
strictly in accordance with the guidelines contained in OM of
DPE dated 27th March 2000 HRA and CCA would be computed
on a revised basic pay from the date of issue of Presidential
Directives.
(iv) The payment of productivity linked incentives and
other allowances should be as per the DPE order dated 25th
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W.P.Nos.41432 & 41433 of 2005
June, 1999 and 27th March 2000.
3. It is further case of the Management that though the Employees
retired from service prior to 31.03.2000, they, on the presumption that there
was a revision of wages even prior to 31.03.2000 and would be entitled to
gratuity, filed a petition before the 2nd Respondent, claiming the amount of
gratuity. However, the 2nd Respondent / Controlling Authority, by an order
dated 04.11.2003, negatived their claim and held as follows:-
“Whether the claim of the applicant with regard to the
difference of gratuity amount on account of the revised pay scale is
sustainable and within the ambit of the provisions of the act”.
Before being gone into the right of the Applicant in receiving
the difference gratuity amount of the revised salary it shall be worth
to discuss the salient features of Section 4 of the Act which reads as
under sub-section (2) of Section 4 of the Act for every completed
years of service or part of thereof of excess of six months the
employer shall pay gratuity to an employee at the rate of fifteen days
wages based on the rate of wages last drawn by the employee
concerned. A plain reading of Sub Section (2) of Section 4 of the
Act, will clarify that the components of last drawn wages for the
purpose of calculation of gratuity have its conclusive and decisive
effect i.e., the last drawn wages of the Applicant should be
invariably taken into account for the purpose of calculation of
gratuity. The respondent without prejudice to the aforesaid section of
the Act and Rules have taken the component of last drawn wages as
the basis for calculation of gratuity and the amount whereof has been
arrived at and paid accordingly. The arrears on account of revision
of salary as per Notification dated 21.07.2000 is yet to be brought
into force by the respondent i.e., the same is still lying unrevised. In
nutshell it may be mentioned that the Applicant is yet to receive the
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W.P.Nos.41432 & 41433 of 2005
wages on the revised scale in the form of arrears. Had the respondent
paid the arrears as per their Notification dated 21.07.2000 and
subsequently delayed the gratuity, the Applicant would have earned
and derived the right under the provisions laid down under the Act
and Rules to claim his gratuity. In the instant case, the fact remains
that the arrears on account of revised salary is yet to be paid. The
applicant only after receiving the arrears shall drive the right to
claim the difference of gratuity. In the absence of the last drawn
wages, the calculation of the amount of gratuity is not feasible and
hence I find no substance on the contentions of the applicant. The
claim of the applicant urging the authority to pass necessary
direction upon the respondent to pay the gratuity on the basis of the
revised salary is therefore unsustainable in the eye of law and the
same deserves to be rejected as pre-mature.”
4. It is also the case of the Management that aggrieved by the order of
the Controlling Authority, the Employees preferred an appeal before the 1st
Respondent, being an Appellate Authority, in which the gratuity amount was
computed, taking note of the notional revision of wages payable to the
employees on the higher side. The Appellate Authority, after determination of
the amount, directed the Management to pay the computed amount together
with interest in terms of the scheme.
5. In any event, the jurisdiction of the Authority in passing the order
has been questioned by the Management and this Court is not inclined to
traverse into all those details.
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W.P.Nos.41432 & 41433 of 2005
6. The Employees contended that the Management has admitted that
the Employees are entitled to receive the balance gratuity amount due to
them. In my view, a single sentence cannot be taken to be the admission of
the Management to decide the case, as the Management in the subsequent
sentence has clearly stated that the Management could not pay the amount of
arrears. The Employees have not let in any evidence to show that their
counter parts have been paid revision of wages and gratuity and at least, they
should have filed a proof that there was a revision of wages in respect of the
serving employees in terms of the Circular dated 21.07.2000. Though the
Appellate Authority has proceeded on the basis that there was a revision for
employee, who retired prior to the cut off date, whereas the Controlling
Authority had held that on presumption, the Management cannot be directed
to pay the amount and that the application itself is premature.
7. It is represented by the Management that Indian Telephones
Industries Limited have already been closed and not even a single employee
has been extended the benefit of revision of wages, as there was no profit.
Both parties relied upon the judgment of the Karnataka High Court in the case
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W.P.Nos.41432 & 41433 of 2005
of HSCL vs. Appellate Authority under the Gratuity Act [W.P.No.30683 of
2000] to state that similarly placed employees were granted relief by the
Karnataka High Court and the order has been stayed by the Hon'ble Supreme
Court and that they are not aware of the present stage of the matter pending
before the Supreme Court. It was affirmed by the parties that the Supreme
Court has not stayed other similar proceedings pending before various High
Courts and Authorities concerned.
8. On scrutiny of the entire facts and circumstance of the case, it is
seen that the Appellate Authority has proceeded on the presumption and
assumption that the revision of wages is applicable to the Employees herein,
which has not been actually extended to them. Moreover, no evidence has
been adduced on the side of the Employees in support thereof. Hence, this
Court has no other option, but to interfere with the order of the Appellate
Authority and restore the order of the Controlling Authority on file. But at the
same time, in case the Employees are able to produce any evidence to show
that revision of wages was granted to others, then they are entitled to submit
an application afresh before the Authority concerned and the period during
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W.P.Nos.41432 & 41433 of 2005
which the writ petition was pending shall be excluded for the purpose of
computing the limitation.
9. The Controlling Authority declined to accept the plea of the
workers, holding that the application is premature and it means that the doors
to approach the Authority are not closed and they can knock at the doors, if
they are able to establish their case at a later point of time. I find that the
order of the Appellate Authority cannot be given effect to.
10. For the foregoing discussions, the Writ Petition is allowed and the
order of the Controlling Authority is restored on file. No costs. Consequently
connected miscellaneous petition is also closed.
19.07.2021
dpq
Index: Yes/No
Speaking order / Non speaking order
https://www.mhc.tn.gov.in/judis/
W.P.Nos.41432 & 41433 of 2005
S.VAIDYANATHAN, J.
dpq
To:
1. The Regional Labour Commissioner (C)
Appellate Authority under the payment of Gratuity Act
No.26, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
2. The Controlling Authority
Assistant Labour Commissioner (C)
No.26, Haddows Road,
Shastri Bhavan,
Chennai 600 006.
W.P.Nos.41432 & 41433 of 2005
and M.P.Nos.43880 & 43881 of 2005
19.07.2021
https://www.mhc.tn.gov.in/judis/
