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2010 DIGILAW 438 (JHR)

Raj Kishore Singh v. Bharat Coking Coal Ltd.

2010-04-08

DABBIRU GANESHRAO PATNAIK

body2010
ORDER : D.G.R. Patnaik, J. Heard the learned Counsel for the parties. 2. The petitioner, in this writ application, has originally prayed for a direction upon the Respondents to pay him the Overtime Arrear, L.T.C. for the period 1988-1989 and refund of penal rent which was realized from the petitioner and further, to pay him interest on the total amount of Gratuity on account of the delayed payment. It appears that, as regards the claim for payment of interest on the total amount of Gratuity on account of the delayed payment, the petitioner had moved before the competent authority under the Payment of Gratuity Act. The competent authority by his order dated-30.05.2007, dismissed the petitioner's claim for interest on the delayed payments of Gratuity. The petitioner being aggrieved with the aforesaid order of the competent authority, has challenged the same, in this writ application. As regards the other claims, it is informed that the other grievances have been redressed during the pendency of this writ application. 3. The facts of the petitioner's case in brief are as follows: The petitioner was appointed under the Respondent-B.C.C.L. on 30.01.1965. After completing more than 40 years and three months of service, he superannuated on 28.02.2006 from the post of the Traffic Assistant in the Patherdih Coal Washery, Dhanbad of the Respondents-B.C.C.L. After his retirement, his retiral benefits including Gratuity was not paid to him promptly. It appears, however from the statements contained in the counter affidavit of the Respondents-B.C.C.L. that the amount of Gratuity payable to the petitioner, was sanctioned by the concerned authorities of the Respondents on 21/22.03.2006, but the same has not been paid to him promptly on the ground that he did not vacate the quarter allotted to him on his retirement and neither did he submit the 'No Dues Certificate'. It was only after the petitioner vacating the quarter on 02.05.2007, that a cheque for a total amount of Rs. 4,97,113/- towards Gratuity was handed over to the petitioner on 04.05.2007. Such amount, however, did not include any interest. Claiming his right of interest on the principle amount of Gratuity on account of the delayed payment under the provisions of Section 7 of the Payment of Gratuity Act, the petitioner demanded statutory interest from the Respondents and when the same was refused to be paid, he preferred an application before the competent authority under the Payment of Gratuity Act. Claiming his right of interest on the principle amount of Gratuity on account of the delayed payment under the provisions of Section 7 of the Payment of Gratuity Act, the petitioner demanded statutory interest from the Respondents and when the same was refused to be paid, he preferred an application before the competent authority under the Payment of Gratuity Act. The petitioner's claim for interest was, however, rejected by the competent authority by his impugned order. 4. Learned Counsel for the petitioner would explain that the competent authority had refused to accept the petitioner's claim for interest on delayed payment of Gratuity on a misconceived ground that the petitioner, even after his retirement, did not vacate the quarter and had continued to occupy the quarter without paying any rent, although even as admitted by the Respondents, substantial amount by way of penal rent was realized by the Respondents for the period during which he had remained in occupation of the quarter. Learned Counsel argues that the Respondents having realized penal rent, cannot refuse to pay interest on the delayed payment of Gratuity on the ground that the petitioner was holding on the quarter and had not vacated the same. 5. Per contra, the stand taken by the Respondents is as follows: (i) The present writ application is not maintainable in view of the fact that the petitioner has not availed the statutory alternative remedy of appeal against the impugned order passed under the provisions of Payment of Gratuity Act. (ii) The petitioner cannot claim any benefit of right under the Payment of Gratuity Act in view of the admitted fact that the petitioner had at the time of his appointment, opted for the S.A.I.L. terms and conditions of service and had agreed to be guided by the S.A.I.L. Gratuity Rules. 6. Learned Counsel for the Respondents would explain that the S.A.I.L. Gratuity Rules are applicable in the case of the employees of the Respondents-Company. Such Rules having been framed for the purposes of enabling better terms of Gratuity to its employees. 6. Learned Counsel for the Respondents would explain that the S.A.I.L. Gratuity Rules are applicable in the case of the employees of the Respondents-Company. Such Rules having been framed for the purposes of enabling better terms of Gratuity to its employees. Learned Counsel explains further, that the petitioner having opted for the terms and conditions of his service as laid down under the contract of his employment and having agreed to the benefits reserved under the S.A.I.L. Gratuity Rules, therefore, he being eligible for better terms of Gratuity by way of a higher amount beyond ceiling limit imposed under the Payment of Gratuity Act, the petitioner cannot therefore, claim the benefit of interest on the delayed payments under the provisions of the Payment of Gratuity Act and for the benefits, which have been reserved under the Payment of Gratuity Act. Learned Counsel explains further that under the terms of contract, which the petitioner had entered into with the Respondent-Company, the amount of Gratuity can be withheld by the employer as long as the employee does not vacate the quarter allotted to him. Furthermore, the terms of contract also reserves the right of the employer to demand and realize penal rent for the period of unauthorized occupation of the quarter by the employee after his retirement. It is further explained that the petitioner having continued to remain in occupation of the Company's quarter beyond the period of one month after the date of his retirement, the amount of his Gratuity was rightly withheld from payment and the petitioner cannot, therefore, claim any benefit for the delayed payment since the delay was on account of his own default. Learned Counsel adds further that the petitioner's claim for refund of the penal rent is also misconceived and not tenable in view of the fact that under the terms of contract of his appointment, the petitioner was liable to pay penal rent for the quarter for the period of his unauthorized occupation. 7. Learned Counsel adds further that the petitioner's claim for refund of the penal rent is also misconceived and not tenable in view of the fact that under the terms of contract of his appointment, the petitioner was liable to pay penal rent for the quarter for the period of his unauthorized occupation. 7. Learned Counsel for the petitioner would want to counter the aforesaid arguments of the counsel for the Respondents on the ground that the objection regarding the maintainability of this writ application cannot be raised in view of the fact that this objection when raised by the Respondents on an earlier occasion, the same was heard and thereafter, the petitioner was allowed to amend his writ application in order to include the prayer for challenging the impugned order of the competent authority by way of amendment of the writ application. 8. As regards the second ground, as raised by the counsel for the Respondents, learned Counsel for the petitioner argues that the petitioner's challenge is in respect of the impugned order passed by the competent authority under the Payment of Gratuity Act, whereby the petitioner's claim for interest on the delayed payment of Gratuity has been rejected on a misconceived ground that the petitioner had not paid any rent for the quarter of which he was in occupation, although, this is not factually correct. 9. From the rival submissions, it appears that admittedly, the petitioner, at the time of accepting his appointment under the Respondents-Company, had agreed to be governed by the terms and conditions of service as stipulated by the Respondent-employer and also to the terms and conditions of the S.A.I.L. Gratuity Rules. The petitioner's acceptance to be governed by the S.A.I.L. Gratuity Rules, is confirmed from the fact that the amount of Gratuity, as payable to the petitioner, has been assessed at Rs. 4,97,1 13/-, whereas had the provisions of the Payment of Gratuity Act being made applicable, then the payable amount of Gratuity to the petitioner could not have exceeded beyond the statutory limit of 3.5 Lakhs. 10. It also appears that as per the terms and conditions of service, the employee on his retirement, shall have to quit and vacate the quarter allotted to him, within one month from the date of his retirement. 10. It also appears that as per the terms and conditions of service, the employee on his retirement, shall have to quit and vacate the quarter allotted to him, within one month from the date of his retirement. If the employee continues to remain in occupation, then such occupation shall be treated as unauthorized occupation and the employee shall be liable to pay penal rent for the period of unauthorized occupation. To the above extent, therefore, since admittedly, the petitioner did not vacate the quarter within one month from the date of his retirement, he was certainly liable to pay a higher rate of rent than the normal rent and the employer had every right to demand and realize such rent from the petitioner. The petitioner's claim for refund of such amount of rent, which was recovered from his retiral dues, is therefore, misconceived. As regards the petitioner's claim for interest on the delayed payments, it is not denied by the petitioner that he is governed by the terms and conditions of his appointment, which stipulate that in the event, he fails to vacate the Company's allotted quarter and does not submit his 'No Dues Certificate', the amount of payable Gratuity may be withheld by the employer, till the quarter is vacated. Admittedly, the petitioner continued to remain in occupation of the quarter even after his retirement for a considerable period. Under such circumstances, the Respondent-employer cannot be faulted for delaying the payment of Gratuity, nor can the petitioner claim any interest on the delayed payments from his ex-employer. As regards the petitioner's grievance in respect of the impugned order of the competent authority under the provisions of the Payment of Gratuity Act, the petitioner ought to have availed the statutory alternative remedy of appeal as provided under the Act. This Court would therefore not exercise its writ jurisdiction to pass any order in respect of the impugned order of the competent authority under the Payment of Gratuity Act. 11. The petitioner's demand for refund of penal rent and interest on gratuity amount for the delayed payment is not tenable and hence, his prayer in terms of the above demands is rejected. 11. The petitioner's demand for refund of penal rent and interest on gratuity amount for the delayed payment is not tenable and hence, his prayer in terms of the above demands is rejected. However, the Respondents shall within one month of this order, assess the amount of over time arrears and L.T.C. for the period 1988-1989, payable if any and pay the same to the petitioner within one month from the date of assessment. This writ application is disposed of accordingly. Application disposed of.