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2010 DIGILAW 4179 (MAD)

S. P. Ganesan v. The Management of Ashok Leyland

2010-09-16

T.S.SIVAGNANAM

body2010
Judgment : 1. The prayer in the Writ Petitions are for issuance of a writ of certiorari to quash the order passed by the second respondent in P.G. Appeal Nos.53 & 29 of 2002 dated 31.1.2003. The matter arises under the Payment of Gratuity Act, 1972. 2. The case of the petitioner is that he joined the services of the first respondent company on 23.6.1965 as Trade Trainee and his services were regularised on 1.11.1996 and he attained the age of supper annuation on 30.4.1998 in the post of highly skilled road Tester and his last drawn wage was Rs.8,899/- per month. The first respondent Company calculated the total number of years of service as 31 years and it is the case of the petitioner that the total length of service rendered by him is 32 years and 10 months which is to be rounded off to 33 years and therefore his wages were not properly calculated. If the total length of service is taken as 33 years and taking into consideration his last drawn wage as 8,899/-, the petitioner would get higher amount of gratuity in terms of the following calculation: 8899 z 342 x 15 x 33= Rs.1,69,290.00 Paid= Rs.1,32,279.00 Rs. 37,011.00 3. The petitioner is stated to have made representation for payment of the shortfall in gratuity and since no favourable orders were passed, he submitted a Claim Petition before the Payment of Gratuity Authority. The authority by its order dated 26.12.2001 partly allowed the petitioners Application and directed that the total length of service should be taken as 32 years. Against such order, the petitioner filed an appeal before the second respondent. The first respondent Management also filed an appeal to the second respondent against the order of the original authority. Both the appeals were heard and the second respondent dismissed the appeal by an order dated 31.1.2003. Aggrieved by such order, the petitioner is before this Court by way of the present Writ Petition. 4. The learned counsel for the petitioner would contend that the petitioners total length of service ought to have been calculated from the date of the first appointment i.e. 23.6.1965 and if the same is taken, the total length of service will be 33 years. 4. The learned counsel for the petitioner would contend that the petitioners total length of service ought to have been calculated from the date of the first appointment i.e. 23.6.1965 and if the same is taken, the total length of service will be 33 years. The Payment of Gratuity Authority though partly accepted the plea, failed to give the full benefit of 33 years, but, erroneously concluded that the total length of service is only 32 years. Further, the learned counsel would submit that the petitioner had produced the pay slip for the month of April 1998 before the authority and without considering the said document, the wage calculation was made and therefore the order of the authority is erroneous. 5. It is further contended by the learned counsel that while filing an appeal before the second respondent a specific ground was raised stating that the petitioner had produced the last drawn wage bill, but the authority had given a finding as if no document was produced. Therefore, the learned counsel would submit that the second respondent ought to have been addressed the specific question raised by the petitioner as regards the computation of the wages paid to the petitioner. 6. The learned counsel would submit that the period of service rendered as Trade Trainee cannot be ignored by the authorities while computing the gratuity and in support of his contention, the learned counsel relied on the decision of this Court in (2001) 3 MLJ 382 [S.ARUNACHALAM Vs. THE MANAGING DIRECTOR, SOUTHERN STRUCTURALS, PATTABIRAM, MADRAS]. Further, the learned counsel by placing reliance on the decision of the Honble Supreme Court in AIR 1980 SCC 1944 [D.W.MILLS LTD., Vs. M.P.BUCH] would submit that wages for 26 working days has to be treated as monthly wages and this decision of the Honble Supreme Court has also been followed by this court in the decision reported in 1981 (1) LLJ page 86. Therefore, the learned counsel submits that the order passed by the second respondent calls for interference. 7. The learned counsel appearing for the first respondent Management would submit that the date of appointment of the petitioner is only 1.1.1996 and as on the date of superannuation, the petitioner had rendered only 31 years 5 months 21 days of service and it has to be rounded of to only 31 years and therefore the stand taken by the Management is correct. Further it is contended that the petitioner did not produce any document to establish that his salary was Rs.8,899/- and in the absence of any document before the authority, no fault can be attributed to the authority for fixing the wage based on the Office Order-Separation bearing Sl.No.1241 dated 17.4.1998. Further, the learned counsel would submit that the fact finding authority having finally concluded the matter, this Court while exercising jurisdiction under Article 226 of the Constitution of India should not interfere with such finding. 8. I have considered the submissions made by the learned counsel appearing on either side and perused the materials available on record. 9. The short question to be decided is whether the second respondent authority computed the gratuity payable to the petitioner properly and in accordance with law. Two issues have been pointed out by the petitioner viz. (i) the total length of service rendered by the petitioner and (ii) what would be the wage which has to be taken into consideration for the purpose of computation of gratuity. 10. The computation has been done by the authorities based upon the Office Order – Separation dated 17.4.1998 produced by the Management wherein the daily wage was taken as Rs.284.47 which was multiplied by 15 days for the completed years, further multiplied by 31 for the total number of years of service and a sum of Rs.1,32,279 was computed. The authority accepted the contention raised by the petitioner that the date of his first appointment shall be reckoned as 13.6.1965, but came to a conclusion that the only one year of service could be added. In so far as the wages, the Tribunal rejected the contention of the petitioner that the wage should be calculated at Rs.342.30 per day by stating that no document has been produced by the petitioner to prove such a stand. Accordingly, except for changing the multiplier of 32 years, the controlling authority did not interfere in other aspects. Accordingly, the additional sum of Rs.4,266.60 alone was directed to be paid. 11. Both the petitioner as well as the first respondent Management filed appeals against the order dated 26.12.2001. Accordingly, except for changing the multiplier of 32 years, the controlling authority did not interfere in other aspects. Accordingly, the additional sum of Rs.4,266.60 alone was directed to be paid. 11. Both the petitioner as well as the first respondent Management filed appeals against the order dated 26.12.2001. It is relevant to note that in the grounds of Appeal, the petitioner apart from contending that the total number of years of service should be taken as 33 years, has specifically raised a contention that the authority failed to consider that the petitioner had produced the last drawn wage bill and the finding that he has not produced the wage bill is erroneous and patently wrong and the daily wage ought to have been taken as Rs.342.27ps. Both the appeals were heard by the second respondent and from the impugned order it is seen that the contention raised by the petitioner has been set out in the order more particularly the contention regarding the wage which has to be reckoned. Further, the contention that the petitioner charged the controlling authority for giving a finding that no documentary evidence was produced in the form of Wage Bill was also set out in the preamble of the order. After setting out the facts and the rival contentions, the second respondent framed two issues for consideration namely what is the period of service and what is the quantum of wage to be taken for the computation of gratuity. 12. On the period of service, the second respondent recorded that the petitioner was employed as semi-skilled employee from 1.11.1966 and before that he was a Trade Trainee from 1965 and the Management also did not oppose its contention. Thereafter, the second respondent held that in terms of section 2(a) of the Payment of Gratuity Act, only the period of apprenticeship alone should be excluded and held that the total period of service shall be 32 years. However the contention raised by the petitioner was not considered. 13. Admittedly, the petitioner was not an apprentice, but he was a Trade Trainee and based on his satisfactory work, his services were confirmed on 1.11.1966. Therefore, in my view, for all practical purposes, the petitioner should have been treated to be an employee from 1965, the date on which he joined duty as a Trade Trainee. 13. Admittedly, the petitioner was not an apprentice, but he was a Trade Trainee and based on his satisfactory work, his services were confirmed on 1.11.1966. Therefore, in my view, for all practical purposes, the petitioner should have been treated to be an employee from 1965, the date on which he joined duty as a Trade Trainee. This service having been reckoned for the purpose of his permanent absorption, cannot be left out for the purpose of computation of gratuity. Therefore, I find substantial force in the contentions raised by the learned counsel for the petitioner that for all practical purpose especially for the purpose of computation of retirement benefit, the total length of service should be counted from 30.6.1965, the date on which the petitioner joined the employment of the first respondent. If that be the case, his total length of service has to be rounded of to 33 years in terms of the provisions of the Act. In that view of the matter, the number of years of service fixed by the authorities as 32 years is incorrect and the same has to be fixed at 33 years. 14. Next, coming to the question regarding the wages which was drawn by the petitioner, it is the contention of the petitioner that he has produced the wage bill before the controlling authority, but the controlling authority ignored such documents and rendered a finding that no document was produced. 15. In the appeal petition before the second respondent a specific ground was raised by the petitioner stating that despite the petitioner producing the wage bill, the controlling authority recorded a finding that no document was produced and such a finding is erroneous. However, this contention was not considered by the second respondent while dealing with the appeal petition and by a cryptic order, the second respondent also held that the petitioner has not produced any record to prove his wage particulars. 16. Copy of the wage bill which is stated to have been produced by the petitioner has been filed in the typed set of papers in page No.5. This wage bill has been issued by the first respondent Management. The first respondent Management cannot dispute the correctness or the validity of the document. The only technical defence taken by them before this Court is that this document was not exhibited before the controlling authority. This wage bill has been issued by the first respondent Management. The first respondent Management cannot dispute the correctness or the validity of the document. The only technical defence taken by them before this Court is that this document was not exhibited before the controlling authority. It is stated that the petitioner being a retired employee, had produced all the available records before the controlling authority and it is his specific case that inspite of production of such document, the authority recorded a finding that no document was produced. If that be the case, the proper and reasonable course which should have been adopted by the second respondent who is the statutory appellate authority is to summon such record from the respondent Management especially when the respondent Management also filed an appeal and their appeal was also heard along with the petitioners appeal petition. Without resorting to such reasonable procedure, the second respondent chose to take a hyper technical stand that the document was not produced. It is settled legal principle that the appeal is a continuation of the original proceedings. Though the provisions of the Code of Civil Procedure may not be applicable to the proceedings before the second respondent, the second respondent being an authority functioning under a statute which is a labour welfare legislation ought to have adopted a more reasonable and pragmatic approach to the whole issue. 17. The Honble Supreme Court in a recent decision in (2010) 3 SCC 192 , [ HARJINDER SINGH Vs. PUNJAB STATE WARESHOUSING CORPORATON] while considering the aspect as to what should be the Courts approach in dealing with cases involving interpretation of social welfare resolution, held thus: "30. Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming in the raison detre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employes falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. In large number of cases like the present one, relief has been denied to the employes falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment engagement of the workman/employee was contrary to some or the other statute or that reinstatement of the workman will put to unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. 43. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother Singhvi, J. that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker sections of the society in view of the clear constitutional mandate discussed above. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity." 18. Bearing the above legal principles in mind, I am of the view that the claim for gratuity cannot thwarted on technical grounds. Even before this Court, the respondent Management has not denied the veracity of the pay slip filed in page No.5 of the typed set of papers. A perusal of the pay slip clearly reveals that the total earnings of the petitioner for the month of April 1998 is Rs.8,899/-. Therefore, in my view the approach of the second respondent while dealing with the question regarding the wage slip cannot be countenanced. 19. In view of the above, I am inclined to accept the contention of the Writ Petitioner in this regard. Therefore, in my view the approach of the second respondent while dealing with the question regarding the wage slip cannot be countenanced. 19. In view of the above, I am inclined to accept the contention of the Writ Petitioner in this regard. The petitioner would further contend that the computation of quantum of wages for computing the gratuity shall be excluding the bonus and special incentive bonus and if the same is excluded, the wage shall be Rs.8,077/-per moth, which shall be taken as the wage for the purpose of computation of gratuity. It has been submitted by the learned counsel for the respondent Management that since the difference in gratuity amount as computed by the authorities was meager, they have complied with the order to that extent and this submission is placed on record. 20. In the result, the Writ Petition stands allowed, the order passed by the second respondent is set aside and the respondents are directed to re-compute the gratuity payable to the petitioner by calculating the daily wage by taking the monthly wage as Rs.8,077/- and the total length of service as 33 years. This exercise shall be completed within a period of two weeks from the date of receipt of a copy of the order and the difference of gratuity amount shall be paid to the petitioner within a period of three weeks thereafter.