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2003 DIGILAW 41 (CAL)

Wimco Limited v. Appellate Authority

2003-02-03

PRANAB KUMAR CHATTOPADHYAY

body2003
Judgment The petitioner company has filed this writ petition before this Court challenging the order passed by the appellate authority under the Payment of Gratuity Act, 1972 whereby the said appellate authority refused to interfere with the decision of the controlling authority in respect of the application of the respondent No. 4. 2. The said controlling authority while deciding the application of the respondent No. 4 filed under Rule 10 of the West Bengal Payment of Gratuity Rules, 1973 came to the finding that the respondent No. 4 as an employee of the petitioner company is entitled to the payment of gratuity amount under the Payment of Gratuity Act, 1972 and therefore, the said controlling authority directed the petitioner company herein to make payment of the said gratuity amount. 3. The appellate authority after hearing the submissions of the respective parties and considering the evidence on record refused to interfere with the aforesaid decision of the controlling authority. The petitioner company thereafter, filed this writ petition on the ground that the respondent No. 4 was never an employee under the petitioner company within the meaning of Section 2(e) of the Payment of Gratuity Act. 4. According to the petitioner company, the respondent No. 4 cannot claim any payment towards gratuity from the petitioner company, as at no point of time any employer and employee relationship existed between the petitioner company and the respondent No. 4. 5. Admittedly, the respondent No. 4 was appointed as a part-time Medical Officer initially at a consolidated remuneration of Rs.750/- p.m. inclusive of all allowances and annual Bonus as has been specifically mentioned in the written communication dated 20th January, 1970 issued by the Calcutta Factory Manager of the petitioner company. The said letter of appointment was, however, modified by a subsequent letter dated 7th May, 1970 wherein it was mentioned that the respondent No. 4 was retained in the assignment of Part-time Medical Officer against a fixed fee of Rs.500/- p.m. and in addition to that a further sum of Rs.250/- p.m. was also granted as conveyance allowance. 6. From the subsequent communication it appears that the aforesaid retainership fees and conveyance allowance were revised by the petitioner company repeatedly and ultimately the retainership fees of the respondent No. 4 was increased to Rs.1,250/-p.m. and conveyance allowance was also revised and increased to Rs.750/- p.m. 7. 6. From the subsequent communication it appears that the aforesaid retainership fees and conveyance allowance were revised by the petitioner company repeatedly and ultimately the retainership fees of the respondent No. 4 was increased to Rs.1,250/-p.m. and conveyance allowance was also revised and increased to Rs.750/- p.m. 7. However, from the provisional letter of appointment and also from the subsequent confirmation letter issued by the petitioner company it appears that the respondent No. 4 was asked to serve the petitioner company as 'Part-time Medical Officer'. Furthermore, from the said provisional letter of employment dated 20th January, 1970 and final letter of appointment dated 7th May, 1970 it appears that in case of exigency the respondent No. 4 was required to attend the factory dispensary and also the factory employees or their dependants outside the specified duty hours for which the said respondent No. 4 was not entitled to charge any fee or conveyance charge. 8. It has been urged on behalf of the petitioner company that during the tenure as a 'Part-time Medical Officer' with the company, the respondent No. 4 also worked as E.S.I. Panel Doctor apart from serving in the Territorial Army. It was further stated by the petitioner company that the respondent No. 4 is the owner of a nursing home wherein 39 persons are employed. 9. The learned Counsel of the petitioner company submits that at no point of time there existed any employer employee relationship between the petitioner company and the respondent No. 4 and as such the claim for gratuity made by the respondent No. 4 cannot be accepted. Mr. Mehata, the learned Counsel of the petitioner company specifically urged before this Court that the respondent No. 4 was retained by the petitioner company as 'Part-time Medical Officer' against fixed fees and as such the said respondent No. 4 cannot be regarded as an employee of the company. 10. According to Mr. Mehata, the claim for payment of gratuity by the respondent No. 4 cannot be sustained in the eye of law as the said respondent No. 4 was only retained by the petitioner company as 'Part-time Medical Practitioner' against fixed fees and there existed no employer employee relationship. Mr. 10. According to Mr. Mehata, the claim for payment of gratuity by the respondent No. 4 cannot be sustained in the eye of law as the said respondent No. 4 was only retained by the petitioner company as 'Part-time Medical Practitioner' against fixed fees and there existed no employer employee relationship. Mr. Mehata further submits that the very nature of duty assigned to the respondent No. 4 and service rendered by the said respondent No. 4 for the petitioner company cannot and did not establish employer employee relationship and as such no gratuity is payable to the respondent No. 4 in terms of the provisions of the Payment of Gratuity Act, 1972. 11. Mr. Mehata cited the following decisions in support of his arguments: 1) Dr. T.N. Lakshmipathi v. Standard Vacuum Oil Co. Ltd., Madras, [1961 (II) L.L.J. 767] 2) Birdhichand Sharma v. First Civil Judge, Nagpur & Ors. [ 1961 (II) L.L.J. 86 (S.C.)] 3) Hussainbhai, Calicut v. Alath Factory Thozhilali Union & Ors. [ 1978 (II) L.L.J. 397 (S.C.)] 4) Indian Sulphacid Industries Ltd. v. Labour Court, Rohtak & Anr. [1992 Labour Law Reporter 462] 12. The learned Counsel of the respondent No. 4, however, submits that the petitioner company had overall control in respect of the duties discharged by the respondent No. 4 herein. The learned Counsel of the said respondent No. 4 further submits that the definition of 'employee' under the Payment of Gratuity Act does not exclude Part-time worker. The learned Counsel of the respondent No. 4 referred to and relied upon an unreported decision of this Court wherein the Division Bench of this Court while deciding the case of Bengal Ingot Co. Ltd. v. Regional Provident Fund Commissioner, West Bengal (F.M.A.T. 2416 of 1989) specifically held that Part-time employee may come within the purview of 'employee' as defined in Section 2(f) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. 13. Mr. Rameswar Bhattacharjee, learned Counsel of the respondent No. 4 specifically urged that the definition of 'employee' in the Payment of Gratuity Act and Employees' Provident Funds and Miscellaneous Provisions Act, 1952 leads to an inevitable conclusion that part-time employees are not excluded from the purview of the said acts. Mr. 13. Mr. Rameswar Bhattacharjee, learned Counsel of the respondent No. 4 specifically urged that the definition of 'employee' in the Payment of Gratuity Act and Employees' Provident Funds and Miscellaneous Provisions Act, 1952 leads to an inevitable conclusion that part-time employees are not excluded from the purview of the said acts. Mr. Bhattacharjee strenuously urged on behalf of the respondent No. 4 that even though the said respondent No. 4 served the petitioner company as 'Part-time Medical Officer' but under the provisions of the Payment of Gratuity Act, the said respondent No. 4 is entitled to receive gratuity from the petitioner company specially when the 'part-time employee' has not been excluded from the application of the Payment of Gratuity Act. 14. Mr. Bhattacharjee also cited the following decisions in support of his arguments: 1) All India Reserve Bank Employees Association & Anr. v. Reserve Bank of India & Anr. [ AIR 1966 SC 805 ] 2) Khande Rao v. United Western Bank Ltd. [1984 Lab IC 1910] 3) T. Prem Sagar v. M/s. Standard Vacuum Oil Co., 'Madras and Ors. [ AIR 1965 S.C. 111 ] 4) The Central Bank of India & Ors. v. Their Workmen etc. [ AIR 1960 SC 12 ] 5) Accountant General, Bihar and Another v. N. Bakshi [ AIR 1962 SC 505 ] 15. Whether any person should be regarded as an employee under a particular establishment would depend upon the very nature of duty discharged by him for the said establishment and overall control of the employer on the said person regarding discharge of his duties. 16. In the present case, from the letter of appointment I find that the petitioner company has fixed the specific duty hours of the respondent No. 4 and also retained control over the service of the respondent No. 4 by inserting specific clause in the letter of appointment to the effect that in case of exigency, the said respondent No. 4 would be required to attend the factory dispensary and/or visit employees or their dependants even outside the specified hours if so directed. The relevant portion from the said letter of appointment dated 7th May, 1970 is quoted hereunder :- "The hours of attendance for you in the Factory will be as follows: Week days : 10: 00 A.M. to 11: 30 A.M. & 04 : 00 P.M. to 05: 30 P.M. Sundays : 12 Noon to 1: 00 P.M. In cases of exigency, you will be required to attend the Factory Dispensary and/or visit such factory employees or their dependants as directed to you from time to time outside the above specified hours. You will not charge any fee or conveyance charge for such visits." 17. The learned Counsel of the respondent No. 4 has rightly contended that the nomenclature of the employee cannot disentitle him from getting his legitimate dues. 18. In the present case, both the controlling authority and the appellate authority after considering the various documents as produced by the respective parties and also considering the evidence on record and upon hearing the submissions of the respective parties came to the definite conclusion that the respondent No.4 had served the petitioner company as an 'employee' and therefore, is entitled to gratuity under the provisions of Payment of Gratuity Act, 1972. 19. The decisions cited by the learned Counsel of the petitioner company can have no manner of application in the facts of the present case as the appropriate authorities under the Payment of Gratuity Act, namely, the controlling authority and the appellate authority after considering the relevant documents and the evidence adduced by the respective parties arrived at a definite finding in this case that the employer employee relationship exists between the petitioner company and the respondent No. 4. The aforesaid finding of fact cannot be interfered with in the present writ petition in absence of cogent grounds. 20. In any event, there is hardly any scope for the writ Court to reappraise the evidences already on record specially when the petitioner company could not indicate any infirmity and/or perversity on the part of the aforesaid authorities in assessing and/or appreciating the evidence on record. 21. 20. In any event, there is hardly any scope for the writ Court to reappraise the evidences already on record specially when the petitioner company could not indicate any infirmity and/or perversity on the part of the aforesaid authorities in assessing and/or appreciating the evidence on record. 21. In the aforesaid circumstances, it is neither desirable nor permissible to interfere with the specific findings of the controlling authority as affirmed by the appellate authority on the factual aspects of the matter regarding the status of the respondent No. 4 as an employee under the petitioner company which entitled the said respondent No. 4, to claim payment of gratuity under the Payment of Gratuity Act from the said petitioner company. In absence of any legal infirmities and/or irregularities I am not inclined to interfere with the decision of the appellate authority which virtually affirmed the findings of the controlling authority. 22. Accordingly, the present writ petition fails and the same is dismissed. Interim order, if any, also stands vacated. 23. There will be, however, no order as to costs. Urgent xerox certified copy of this judgment be handed over the learned Advocates of the parties, if applied for.