Madras High Court
The Regional Manager vs P.Kaliappan on 7 August, 2024
W.P.No.4860 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :07.08.2024
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.4860 of 2014 and
M.P.Nos.1 and 2 of 2014
The Regional Manager,
Tamil Nadu Civil Supplies Corporation Ltd.,
Co-op Tex, Thangam Pattu Maaligai First Floor,
Salem -1. ... Petitioner
Vs.
1.P.Kaliappan
2.The Controlling Authority,
Assistant Commissioner of Labour,
Office of the Deputy Commissioner of Labour,
Salem - 636 001.
3.The Joint Commissioner of Labour,
Coimbatore. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records
relating to the order made in Case No.mÂK/3380/2013 dated
06.09.2013 on the file of the third respondent / Joint Commissioner of
Labour, Coimbatore and quash the same and consequently, direct the
third respondent to dispose of the same on merits.
Page No.1 of 10
https://www.mhc.tn.gov.in/judis
W.P.No.4860 of 2014
For Petitioner : Mr.K.Thirugnanam
For Respondents : Mr.K.Ramesh, Senior Counsel for
Mr.K.Bharathi for R1
Mrs.S.Jayanthy, AGP for R2 & R3
ORDER
This Writ Petition has been filed for the issuance of a Writ of
Certiorarified Mandamus to call for the records relating to the order made
in Case No.mÂK/3380/2013 dated 06.09.2013 on the file of the third
respondent / Joint Commissioner of Labour, Coimbatore and quash the
same and consequently, direct the third respondent to dispose of the same
on merits.
2. Heard Mr.K.Thirugnanam, learned counsel for the petitioner,
Mr.K.Ramesh, learned Senior Counsel for R1 and Mrs.S.Jayanthy,
learned Additional Government Pleader for R2 & R3 and perused the
materials available on record.
3. The petition filed by the first respondent under Section 7(4)(b)
of Payment of Gratuity Act, 1972 has been allowed by an order dated
03.12.2012 by the second respondent by directing the petitioner to pay
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gratuity of Rs.60,000/- to the petitioner within a period of 30 days from
the date of the order along with the interest from 05.11.2006. It is the
submission of the learned counsel of the petitioner that the first
respondent is not entitled to get any gratuity as he has not completed 10
years of service. But the challenge has been made only as against the
order dated 06.09.2013 through which the petitioner's Appeal filed
challenging the original order dated 03.12.2012 has been rejected on the
ground of limitation prescribed under Section 7 of the Act.
4. The attention of this Court was drawn by the first respondent to
the judgment rendered by this Court in the case of The Managing
Director, Tamil Nadu Co-operative Milk Producers Federation
Limited, Chennai Vs. M.Gnanaguru and Others, reported in 2019 (3)
CLR 315, in which, this Court has observed that the order rejecting the
request of the petitioner to entertain the Appeal is correct in view of the
receipt of the Appeal beyond the the period of limitation prescribed under
the Act. For the sake of clarity, the relevant part of the judgment is
extracted hereunder:
"4. As per the provisions of Payment of Gratuity Act, 1972,
the gratuity Appeal has to be filed preferably within 60 days from
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the date of receipt of the order or at least within a maximum
period of 120 days. If an appeal is filed after 120 days from the
date of receipt of the order, then the Authority becomes functus
officio and therefore, he cannot entertain the Appeal. Since the
petitioner has preferred an Appeal beyond 120 days, the Authority
has rightly passed an order rejecting the request of the petitioner
herein.
5. In the case of Onward Trading Company, Madras Vs.
Deputy Commissioner of Labour, Madras and another reported in
1989 (2) LLN 672 and 673, this Court has held that if the
petitioner fails to deposit the amount of gratuity within the
stipulated time, then the Appeal itself is incompetent.
6. If the contention of the Petitioner herein is accepted, then
the Management would approach the High Court after 120 days
stating that they are willing to deposit the amount and that they
may be permitted to pursue the Appeal. The Gratuity payable is
not a gratis or bounty and it shall be payable immediately or at
least within the time stipulated under the Act. In the case on hand,
even the admitted amount has not been deposited before the
Controlling authority, when the Appeal was filed before the
Controlling Authority. Hence, no indulgence can be shown to the
Petitioner herein.
7. The gratuity payable attracts 10% interest as per Section
7(3A) of the Payment of Gratuity Act, 1972. In exercise of the
powers conferred by Section 8 of the Payment of Gratuity Act,
1972 (39 of 1972), the Central Government hereby specifies 15
per cent per annum as the rate of compound interest, recoverable
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by the Collector for the time being, along with the amount of
gratuity and payable to the person entitled thereto.
8. For better appreciation of the case, Sections 7(3A) and 8
of the Payment of Gratuity Act, 1972 together with the
Notifications issued under the aforesaid provisions are extracted
hereunder:
"Section 7 - Determination of the amount
of gratuity: (1) A person who is eligible for
payment of gratuity under this Act or any person
authorised, in writing, to act on his behalf shall
send a written application to the employer, within
such time and in such form, as may be prescribed,
for payment of such gratuity. (2) As soon as
gratuity becomes payable, the employer shall,
whether an application referred to in sub-section
(1) has been made or not, determine the amount of
gratuity and give notice in writing to the person to
whom the gratuity is payable and also to the
controlling authority specifying the amount gratuity
so determined. (3) The employer shall arrange to
pay the amount of gratuity within thirty days from
the date it becomes payable to the person to whom
the gratuity is payable. (3A) If the amount of
gratuity payable under sub-section (3) is not paid
by the employer within the period specified in sub-
section (3), the employer shall pay, from the date on
which the gratuity becomes payable to the date on
which it is paid, simple interest at such rate, not
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exceeding the rate notified by the Central
Government from time to time for repayment of
long-term deposits, as that Government may, by
notification specify: Provided that no such interest
shall be payable if the delay in the payment is due
to the fault of the employee and the employer has
obtained permission in writing from the controlling
authority for the delayed payment on this ground.
Section 8 - Recovery of gratuity: If the
amount of gratuity payable under this Act is not
paid by the employer, within the prescribed time, to
the person entitled thereto, the controlling authority
shall, on an application made to it in this behalf by
the aggrieved person, issue a certificate for that
amount to the Collector, who shall recover the
same, together with compound interest thereon at
such rate as the Central Government may, by
notification, specify,] from the date of expiry of the
prescribed time, as arrears of land revenue and pay
the same to the person entitled thereto : Provided
that the controlling authority shall, before issuing a
certificate under this section, give the employer a
reasonable opportunity of showing cause against
the issue of such certificate: Provided further that
the amount of interest payable under this section
shall, in no case exceed the amount of gratuity
payable under this Act.
Notification under Section 7(3A)
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S.O.874 - In exercise of the powers conferred
by sub-section (3A) of Section 7 of the Payment of
Gratuity Act, 1972 (39 of 1972), the Central
Government hereby specifies ten per cent per
annum as the rate of simple interest payable for the
time being by the employer to his employees in
cases where the gratuity is not paid within the
specified period.
Notification under Section 8
S.O. 1032(E) - In exercise of the powers
conferred by Section 8 of the Payment of Gratuity
Act, 1972 (39 of 1972), the Central Government
hereby specifies 15 per cent per annum as the rate
of compound interest, recoverable by the Collector
for the time being, along with the amount of
gratuity and payable to the person entitled thereto.
9. In the light of the aforesaid judgment, this Court has
come to the conclusion that the subsequent act of deposit will not
validate the Appeal, which is filed belatedly and the order of the
Appellate Authority/third respondent cannot be interfered with.
Now that, amount has been deposited, amount can be released to
the workers within one month from the date of receipt of this order,
without standing on technicalities that the Appellant should give
his consent for withdrawal ."
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5. However, the learned counsel for the petitioner tried to make
distinction between the matter in hand and the matter referred in the
above order by stating that in the above order, the concerned employer
did not deposit the gratuity amount before preferring the Appeal. But in
the instant case, the petitioner has deposited the required share of the
amount. All such requirement is only for the purpose of filing the Appeal.
But this is the stage where the petitioner's appeal has been rejected for
want of very limitation or in other words, the Management who intends to
file an Appeal, is required to make deposit within the period of limitation
and then file the Appeal. So the petitioner's deposit of any amount
subsequent to the expiry of the limitation prescribed by the Act can be of
no avail.
6. Since the petitioner approached the statutory authority after the
period of limitation, the appeal was rightly rejected. The rightful course
ought to have been adopted by the petitioner is filing an application to
condone the delay in filing the Appeal. The petitioner without doing such
exercise, straightly filed the Appeal and got it rejected and now,
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challenging the same before this Court.
7. In view of the above stated reasons, this Writ Petition is
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
Index : Yes /No 07.08.2024
Speaking / Non-speaking
Neutral Citation : Yes / No
gsk
To
1.The Controlling Authority,
Assistant Commissioner of Labour,
Office of the Deputy Commissioner of Labour,
Salem - 636 001.
2.The Joint Commissioner of Labour,
Coimbatore.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
gsk
W.P.No.4860 of 2014 and
M.P.Nos.1 and 2 of 2014
07.08.2024
https://www.mhc.tn.gov.in/judis
