Madras High Court
C.V.Ramadass vs The Joint Commissioner Of Labour/ on 9 March, 2021
W.P.No.42033 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
W.P.No.42033 of 2016
and W.M.P.No.35968 of 2016
C.V.Ramadass ... Petitioner
Vs.
1. The Joint Commissioner of Labour/
The Appellate Authority under the
Payment of Gratuity Act,
Chennai.
2. The Assistant Commissioner of Labour/
The Controlling Authority under the
Payment of Gratuity Act,
Chennai.
3. The Commissioner,
Tambaram Municipality,
Tambaram, Chennai. ... Respondents
PRAYER: The Writ Petition has been filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorarified Mandamus, to
quash the impugned orders passed by the second respondent in P.G.No.238
of 2014 dated 22.12.2014 and the consequential order confirming the above
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W.P.No.42033 of 2016
order passed by the first respondent in P.G.A.No.3 of 2015 dated
20.01.2016 and further direct the respondent to pay the gratuity amount
along with the interest to the petitioner for which he is legally entitled to.
For Petitioner : Mr.R.Karthikeyan
For Respondent
Nos.1 and 2 : Mr.V.Kathirvelu
Special Government Pleader
For Respondent No.3 : Mr.P.Srinivas
Standing Counsel
-----
ORDER
Challenging the order of the Appellate Authority under
Payment of Gratuity Act, 1972, the petitioner has approached this Court.
2. According to him, as per Section 5 of the Payment of
Gratuity Act, when any establishment is paying gratuity or pensionary
benefits more than beneficial to the employees, the same can be exempted
from Payment of Gratuity Act. Whereas, in the present case, the third
respondent Municipality is paying the gratuity much lesser than the benefits
available under Payment of Gratuity Act, 1972. Wherever the payment is
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W.P.No.42033 of 2016
lesser, the Payment of Gratuity Act, 1972, has an overriding effect. It will
prevail over other Act, which is inconsistent with the Payment of Gratuity
Act. Therefore, according to him, the third respondent should have
calculated the payment of gratuity under the Payment of Gratuity Act, 1972.
Without getting any exemption, they have paid only gratuity under the
caption “DCRG – Death-Cum-Retirement Gratuity”. As long as exemption
is not obtained, as a model employer and an organ of the State Government,
they should have strictly followed the provisions of the Payment of Gratuity
Act, which they failed. Hence, he challenged the order before the Controlling
Authority.
3. The Controlling Authority has decided that the petitioner is
entitled to the beneficial provisions of the Payment of Gratuity Act, 1972,
and computed balance of payment payable to the petitioner. However,
relying on the judgment of this Court in W.P.No.21865 of 2000 (the
Coimbatore City Municipal Corporation, Coimbatore, Vs. The Joint
Commissioner of Labour, Coimbatore, and two others), dated
08.02.2010, he preferred an appeal before the Appellate Authority, the first
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W.P.No.42033 of 2016
respondent herein. The Hon'ble Mr.Justice K.Chandru, following the
judgments of the Hon'ble Supreme Court in Khatheeja Bai Vs. the
Superintending Engineer and Others [1986 (I) LLJ 314] and Allahabad
Bank and Another Vs. All India Allahabad Bank Retired Employees'
Association [2009 AIR SCW 7667), has observed that the Corporation /
Municipality cannot claim the DCRG as a substitute for gratuity under the
Payment of Gratuity act or after getting the DCRG, he is disentitled to
receive gratuity under the Act in view of overriding effect of Section 14.
4. But, in the instant case, it is admitted by both the parties that
the pensionary benefits are separate and does not include 'DCRG'. In fact,
the petitioner is receiving a separate pension package under the Tamil Nadu
Pension Rules. The gratuity is not an inseparable component of pension.
Insofar as, the gratuity component is concerned, it is calculated as per the
Tamil Nadu Pension Rules under the caption 'DCRG'. Therefore, as rightly
contended by the learned counsel for the petitioner and rightly decided by
the Controlling Authority, the gratuity should have been calculated as per
Payment of Gratuity Act, 1972, as long as there is no exemption under
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W.P.No.42033 of 2016
Section 5(3) of the said Act. The Controlling Authority has rightly computed
the amount.
5. Therefore, the balance of the payment which is computed as
per the Payment of Gratuity Act, 1972, is payable to the petitioner. But, the
contention of the petitioner that the payment of gratuity under Payment of
Gratuity Act is in addition to DCRG cannot be accepted. It will amount to
double payment of gratuity, which amounts to unduly enriching the
employee at the cost of exchequer. This point was rightly observed by the
Appellate Authority and therefore, I do not find any discrepancy in the
order.
6. Therefore, the petitioner is entitled to the balance amount of
Rs.39,886/- as computed by the Controlling Authority with interest at the
rate of 6% per annum from 08.01.2013 till the date of disbursement. The
third respondent is directed to make payment within a period six (6) weeks
from today.
M. GOVINDARAJ, J
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W.P.No.42033 of 2016
asi
With the above directions, this Writ Petition is disposed of.
There shall be no order as to costs. Consequently, connected miscellaneous
petition is closed
Post this matter on 20.04.2021 “for reporting compliance”.
09.03.2021
asi
Note: Issue order copy on or before 16.03.2021
To
1. The Joint Commissioner of Labour/
The Appellate Authority under the
Payment of Gratuity Act, Chennai.
2. The Assistant Commissioner of Labour/
The Controlling Authority under the
Payment of Gratuity Act, Chennai.
3. The Commissioner,
Tambaram Municipality,
Tambaram, Chennai.
W.P.No.42033 of 2016
and W.M.P.No.35968 of 2016
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