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2005 DIGILAW 395 (CAL)

BASUMATI CORPORATION LTD v. STATE OF WEST BENGAL

2005-06-23

SADHAN KUMAR GUPTA

body2005
Sadhan Kumar Gupta ( 1 ) THE writ petition has been filed against the Government Order No. 1084 I. R. dated 13. 6. 2001 whereby in purported exercise of the power under sub section 1 of Section 17 of the Working Journalists and other Newspaper employees (Conditions of Service)"and Miscellaneous Provisions Act, 1955, a certificate for recovery of the money was issued to the Collector, Calcutta, from the petitioner/company viz. M/s. Basumati Corporation Limited. The petitioner/company is paying gratuity to its employees as per provisions of the Payment of Gratuity Act and Rules made thereunder. The employees of the petitioner/company including the working journalists agreed to that and all along received payment of gratuity as per provisions of the said Act without raising any objection. ( 2 ) THE respondent No. 5 was an employee of the petitioner/company and he retired on 10. 1. 1994 and thereafter he was paid gratuity amounting to Rs. 48,829/- on 8. 3. 1994. Said amount was paid under the Payment of gratuity Act, 1972. But the said respondent No. 5 by his letter dated 29. 3. 1994 demanded further payment of gratuity under the Payment of gratuity Act, 1972. He also demanded further payment of gratuity under the new Payment of Gratuity Act, as he was also covered under the said Act. After receiving the said letter, the petitioner/company checked its calculation and thereafter being satisfied, informed the respondent No. 5 that the amount of gratuity was correctly calculated. The respondent No. 5, after two years, made a further representation to the Managing Director and in his letter gated 4. 3. 1996 he for the first time demanded that he was entitled to get the benefit of gratuity under the Working Journalists and other Newspaper employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 instead of the Payment of Gratuity Act, 1972. The petitioner/company submits ihat the gratuity all along was paid to its employees including the working ,ournalists under the Payment of Gratuity Act, 1972 and it has been confirmed oy the State Government by its communication dated 3. 6. 1996. As the petitioner/company did not allow the said representation of the respondent no. 5, so he made a representation before the Secretary, Government of west Bengal, Labour Department by his letter dated 17. 5. 6. 1996. As the petitioner/company did not allow the said representation of the respondent no. 5, so he made a representation before the Secretary, Government of west Bengal, Labour Department by his letter dated 17. 5. 1996 and on the basis of the said representation the Assistant Labour Commissioner, government of West Bengal initiated a proceeding under the Working journalists and other Newspaper Employees (Conditions of Service) and miscellaneous Provisions Act, 1955 and issued a notice on 17. 1. 1997 to the Corporation. On 20. 2. 1997 the petitioner/corporation filed written statement wherein it was clearly stated that the employees of the said corporation were entitled to get gratuity under the Payment of Gratuity Act, 1972 and respondent No. 5 also accepted the payment made as per the said Act without any objection and as such he was estopped from making any further claim under the Working Journalists and other Newspaper employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. But the said Assistant Labour Commissioner did not consider all these things and by the notice dated 6. 8. 1997 he in purported exercise of the power conferred by sub section 1 of Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous provisions Act, 1955 proceeded with the matter. Even after conclusion of the proceeding, no order was passed by the said Assistant Labour commissioner and although the disputed question of the applicability of the act in respect of the payment of gratuity could not be settled by and between the parties still the said Assistant Labour Commissioner did not refer the matter to the State Government for referring the said dispute to any Labour court constituted under the provisions of the Industrial Dispute Act. Instead the said Assistant Labour Commissioner by his order dated 13. 6. 2001 held that the respondent No. 5 was entitled to receive from the corporation a sum of Rs. 25,083-50p only towards additional gratuity to be paid in accordance with the provisions of Section 5 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous provisions Act, 1955 and he was also pleased to issue a certificate for recovery of the said amount to the Collector, Calcutta from the petitioner/ corporation for payment to the respondent No. 5. According to the petitioner, the Assistant Labour Commissioner totally acted beyond his scope and jurisdiction and ostensibly exercised the powers conferred upon him under sub section 1 of Section 17 of the Working Journalists and other Newspaper employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. Said order is thoroughly illegal and as such the petitioner/corporation has preferred this writ petition praying for setting aside the said notice. ( 3 ) THE respondent No. 5 has contested the writ petition by filing affidavit-in-opposition wherein he denied the claims of the petitioner on all the relevant points. In the A/o, the respondent No. 5 admitted that he has received payment of gratuity from the petitioner as per provisions of the payment of Gratuity Act, 1972. But, according to the said respondent, as he was working as a journalist, so as per provisions of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous provisions Act, 1955, hereinafter referred as the 'act', he was entitled to get more amounts towards payment of gratuity. The respondent No. 5 has claimed that there cannot be any estoppel against him in claiming further amount to which he was legally entitled. He has claimed that the Assistant labour Commissioner perfectly decided the question and he was justified in issuing the certificate for recovery of the said amount for the payment to be made in favour of the respondent No. 5. He has further claimed that the petitioner/corporation unnecessarily and without any reason has filed this writ petition challenging the decision of another department of the government of West Bengal. The respondent No. 5 has prayed for dismissal of the writ petition. ( 4 ) I have considered the submissions made by the learned advocates for both the sides. According to the learned Advocate for the petitioner, the respondent No. 5 is estopped from claiming further amount towards gratuity since he has already received the payment under the payment of Gratuity Act, 1972. According to him, this further claim was made by the petitioner after a lapse of two years and as the respondent no. 5 in between these two years, did not raise any objection towards the earlier payment of gratuity, so it should be considered that he waived his alleged right of getting further payment of gratuity by his conduct. According to him, this further claim was made by the petitioner after a lapse of two years and as the respondent no. 5 in between these two years, did not raise any objection towards the earlier payment of gratuity, so it should be considered that he waived his alleged right of getting further payment of gratuity by his conduct. In this respect, the learned Advocate for the petitioner cited decisions reported in 1980 0 SCC 53, S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors. ; (1998)2 Cal LJ 15 Bank of India and Ors. v. Kalyan Kumar Sarkar; (2000)86 flr 682 Ramswamy Palledarv. Secretary to Government of NCT of Delhi and Anr. ; AIR 1958 SC 507 Kasturi and Sons (Pvt.) Ltd. v. N. Salivateswaran and anr. and (1987)1 Cal LJ 188 Bishnu Banerjee v. Sushil Chatterjee. ( 5 ) SECOND contention of the learned Advocate for the petitioner is that payment of gratuity was all along made in the petitioner/corporation to its employees as per provisions of Payment of Gratuity Act, 1972 and not under the payment of gratuity under Working Journalists and other newspaper Employees (Conditions of Service) and Miscellaneous Provisions act, 1955. According to the learned Advocate for the petitioners, since the payment of Gratuity Act, 1972 was passed with the intention to make uniform provisions through out the country regarding payment of gratuity and since the said Act was the later Act, so it should be presumed that by the said Act the provisions of Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 has been given a go by. In this respect, he relied on the decisions reported in AIR 1980 (SC), Page 2181, The Life Insurance Corporation of India v. D. J. Bahadur and Ors. ; (1932)2 SCC Page 144 Maharashtra Tubes Ltd. v. State industrial and Investment Corporation of Maharashtra Ltd. and Anr. ; and AIR 2000 (SC) 1535 : 2000 WBLR (SC) 339, Allahabad Bank v. Canara Bank and Anr. ; (1932)2 SCC Page 144 Maharashtra Tubes Ltd. v. State industrial and Investment Corporation of Maharashtra Ltd. and Anr. ; and AIR 2000 (SC) 1535 : 2000 WBLR (SC) 339, Allahabad Bank v. Canara Bank and Anr. ( 6 ) LEARNED Advocate for the petitioner further argued that since there was a dispute raised in between the parties as to under which Act the respondent No. 5 was entitled to receive the gratuity, the Assistant Labour commissioner had no jurisdiction to determine the said issue in between the parties without referring the matter to the appropriate Labour Court and as such he was not at all justified in issuing the certificate to the Collector. for realisation of the balance payment of gratuity. In this respect, the learned advocate for the petitioner has drawn my attention to the provisions of section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. ( 7 ) ON the contrary, learned Advocate for the respondent No. 5 argued that there cannot be any waiver or estoppel against an employee in respect of realisation of any amount from his employer, which is due to him as per provisions of any Act. He has further argued that the Payment of gratuity Act 1972 did not override the provisions, as made in Working journalists and other Newspaper Employees (Conditions of Service) and miscellaneous Provisions Act, 1955. According to him, entire service conditions of the journalists have been taken into consideration by the said act including the payment of gratuity and as such it cannot be said that a journalist is covered and entitled to payment of gratuity only as per provisions of the Payment of Gratuity Act, 1972. He has further argued that the Assistant labour Commissioner rightly decided the issue in between the parties and properly issued the certificate to the Collector for realisation of the amount. He has prayed for dismissal of the writ petition. ( 8 ) SO, it appears that main contention between the parties is which act is applicable for determination of the gratuity amount so far as the respondent No. 5 is concerned. There is no dispute that the respondent No. 5 worked as a journalist under the petitioner/corporation. He has prayed for dismissal of the writ petition. ( 8 ) SO, it appears that main contention between the parties is which act is applicable for determination of the gratuity amount so far as the respondent No. 5 is concerned. There is no dispute that the respondent No. 5 worked as a journalist under the petitioner/corporation. It appears that the dispute was taken into consideration by the Assistant Labour Commissioner as per provisions of Section 17 of the Working Journalists and other newspaper Employees (Conditions of Service) and Miscellaneous Provisions act, 1955 and both the parties contested the said conciliation proceeding which was pending before the Assistant Labour Commissioner. Section 17 of the said Act deals with the recovery of the money due from an employee and it runs as follows : 1. Where any amount is due under this Act to a newspaper employee from an employer, the newspaper employee himself, or any person authorised by him in writing in this behalf, or in the case of the death of the employee any member of his family may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the due amount to him, and if the State Government, or such authority, as the State Government may specify in this behalf, is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector, and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue. " 2. If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it, refer the question to any Labour Court constituted by it under the industrial Disputes Act, 1947 or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or law shall have effect in relation to the Labour Court as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or Law. 3. 3. The decision of the Labour Court shall be forwarded by it to the state Government which made the reference and any amount found due by the Labour Court may be recovered in the manner provided in Sub Section (1 ). " ( 9 ) IN this respect the decision reported in AIR 1958 SC 507 (supra)is relevant. In the said decision it has been held by the Hon'ble Apex court : "the section provides for a procedure to recover the amount due from an employer, not for the determination of the question as to what amount is due. The condition precedent for the application of Section 17 is a prior determination by a competent authority or the Court of the amount due to the employee from his employer. It is only if and after the amount due to the employee has been duly determined that the stage is reached to recover that amount and it is at this stage that the employee is given the additional advantage provided by Section 17 without prejudice to any other mode of recovery available to him. " ( 10 ) SUB section 3 of the said Act clearly provides that the decision of the Labour Court in this respect shall be forwarded to the State government which make the reference and then and then only steps may be taken for recovery of the amount as per sub section 1. In view of the provisions made in the Act itself and on the basis of the decisions cited above, it is very much clear that whenever such a dispute is raised between the parties, such dispute must be settled by a competent authority, here it should mean Labour Court, and thereafter after the decision of the said authority is received, then and then only the question of recovery comes in. But so far as the present case is concerned, it appears that the Assistant labour Commissioner himself took up the responsibility of determining the dispute in between the parties and thereafter proceeded to issue the certificate for recovery. To my mind, said Assistant Labour Commissioner is not authorised to settle the dispute finally in between the parties. Here the question has been raised as to which Act is applicable in respect of payment of gratuity to the employees of the petitioner/corporation viz. To my mind, said Assistant Labour Commissioner is not authorised to settle the dispute finally in between the parties. Here the question has been raised as to which Act is applicable in respect of payment of gratuity to the employees of the petitioner/corporation viz. whether it should be under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Act, 1955 or whether it should be under the Payment of Gratuity Act, 1972. The respondent No. 5, the employee has in no uncertain terms claimed that as per provisions of the working Journalists and other Newspaper Employees (Conditions of service) and Miscellaneous Provisions Act, 1955 he is entitled to get payment of gratuity at a higher rate than that of the amount which is to be determined by the Payment of Gratuity Act 1972. On the other hand, the employer has claimed that in the said Corporation all along the journalists were paid gratuity amount as per the provisions of the Payment of Gratuity act, 1972 and not under the provisions of the Working Journalists and other newspaper Employees (Conditions of Service) and Miscellaneous provisions Act, 1955. A dispute has been raised in between the parties as to whether the respondent No. 5, can claim the further amount of gratuity although he accepted payment of gratuity more than two years before as per provisions of the Payment of Gratuity Act, 1972. There cannot be any doubt that there exists a clear dispute in between the parties regarding the question, mentioned above. This question is required to be settled by a competent authority which would be a Labour Court, established as per provisions of the Industrial Dispute Act and the Labour Department of the state Government before which the representation has been made by the respondent No. 5, is duty bound to refer the said dispute to any competent labour Court for decision. We cannot ignore the fact that the Assistant Labour commissioner, who was dealing with the matter was performing his duty as a conciliation officer and when the said conciliation failed in between the parties, it was his duty to refer the dispute in between the parties to the appropriate Labour Court for determination. Without taking steps in that respect the Assistant Labour Commissioner preferred to issue the certificate to the Collector for recovery of the amount by determining the said amount himself. Without taking steps in that respect the Assistant Labour Commissioner preferred to issue the certificate to the Collector for recovery of the amount by determining the said amount himself. I am afraid the law has not given such power to the Assistant Labour commissioner. The amount, which is in dispute, must be determined first by the competent Labour Court and then and then only the Assistant Labour commissioner is authorised under the Law to issue the certificate for recovery of the amount. ( 11 ) THEREFORE, from my above discussion, I am of opinion that the assistant Labour Commissioner was not at all justified in issuing the purported certificate to the Collector for recovery of the amount in question from the petitioner to be paid to the respondent No. 5 towards the balance amount of his gratuity. The action on the part of the said officer is certainly beyond jurisdiction and as such must be set aside and the State Government should be directed to refer the dispute in between the parties, as discussed in the body of this judgment, to a competent Labour Court, established under the Industrial Dispute Act, who will then decide the dispute between the parties in accordance with law after taking into consideration of the submissions made before him by both the parties. I make it very clear that the dispute as has been discussed in the body of this judgment, has not been taken into consideration by this Court on merit and the Labour Court, on being referred, will be at liberty to consider those points independently without being influenced by this judgment. ( 12 ) IN the result, the writ petition is allowed on contest but without any cost. The impugned Government Order No. 1084 IR dated 13. 6. 2001 and the certificate issued by the Assistant Labour Commissioner for recovery of the money, to the Collector, Calcutta from the petitioner/company, is set aside. The State Government is directed to refer the dispute, as discussed in the body of this judgment, to an appropriate Labour Court for determination, within a month from the receipt of the copy of this judgment and thereafter the Labour Court is directed to dispose of the said reference as expeditiously as possible. ( 13 ) PARTIES shall act on Xerox signed copy of this dictated order on the usual undertakings.