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2012 DIGILAW 1000 (CAL)

Amar Kumar Haldar v. Saraswati Press

2012-11-29

JAYANTA KUMAR BISWAS

body2012
Judgment : The petitioner in this WP under art.226 of the Constitution of India dated August 11, 2008 is questioning an order of the “Appellate Authority Under the Payment of Gratuity Act, 1972, Barrackpore, North 24-Parganas” dated January 9, 2008. The petitioner was working in Saraswaty Press Limited, a Government of West Bengal Enterprise, and was posted to its Accounts Finance-I department. He was nominated to the canteen managing committee in which he discharged the functions of the treasurer. He could not account for Rs.2,76,832. On reaching the age of superannuation he retired on February 1, 2003. By a letter dated February 5, 2003 his employer asked the petitioner to explain the situation and what he would do. By a letter dated February 11, 2003 the petitioner requested his employer to recover the amount from the amounts payable to him. His employer wrote a letter dated March 19, 2003 giving the recovery breakdown that included the payable gratuity amount. On March 31, 2003 he gave his unconditional written consent to the proposed recovery. Thereafter the petitioner gave a lawyer’s notice dated May 19, 2003 asking his employer to pay him the gratuity amount. He did not say that the consent had been given under pressure or obtained by applying force. He gave another lawyer’s notice dated June 6, 2003. In this also he did not say that the consent had been obtained by applying force or given under pressure. Then the petitioner submitted an application to the controlling authority under sub-r.(1) of r.10 of the Payment of Gratuity (Central) Rules, 1972 for direction upon his employer under sub-s.(4) of s.7 of the Payment of Gratuity Act, 1972. On receipt of notice his employer submitted its reply dated November 4, 2003 contending that in view of the unconditional consent to the recovery, he was not entitled to file the application. The petitioner submitted an objection and there also he did not say that the consent had been given under pressure or obtained by applying force. He submitted a reply to a letter of his employer dated January 6, 2006, and in this reply he asserted for the first time that his employer had obtained his signatures on blank papers by applying force. He, however, did not give any evidence in proof of this case. The controlling authority passed his order under sub-s.(4) of s.7 of the Act on September 19, 2006. He, however, did not give any evidence in proof of this case. The controlling authority passed his order under sub-s.(4) of s.7 of the Act on September 19, 2006. He held as follows:- “It has been observed in the above-mentioned contest that, the O.P. filed a case under I.P.C. regarding this defalcation by the workman and may have obtained an authorization from applicant to attach his gratuity towards the outstanding amount misappropriated, but none of the facts are sufficient to forfeit the gratuity amount under section 4(6) of the Payment of Gratuity Act, 1972, as the O.P. did not produce sufficient supporting documents such as any order or award of any forgery suit neither the O.P. held any domestic enquiry against the applicant, and it must be mentioned that the provisions of the Payment of Gratuity Act 1972 does not empower the O.P. to forfeit the gratuity amount of an applicant on the basis of any authorization letter of the said employee. So the applicant is entitled to his gratuity for the service he had rendered to the O.P. and the existing financial dispute between the two parties could not disqualify the entitlement of gratuity of the applicant.” By his order dated September 19, 2006 the controlling authority directed the employer to pay the petitioner gratuity. Against the order the employer filed an appeal under sub-s.(7) of s.7 of the Act. The petitioner contested the appeal taking the following two points:- “(a) That the appeal was filed after passing the statutory period. The appeal, therefore, barred by limitation and (b) That the appellant willfully and forcibly with the help of other members and staff of the canteen took the signature of the respondent No.2 on the said consent letter.” The appellate authority allowed the appeal of the employer holding as follows:- “The appellant applied for the certified copy of the order of the Ld. Controlling Authority dated 19.09.2006, which is a prerequisite condition for filing an appeal on 30.10.2006 in the prescribed proforma and he received the same on 01.01.2007 and subsequently filed the appeal on 12.01.2007. The reason for delay, if any, in filing the appeal was, therefore, beyond the control of the appellant and thus condoned. Controlling Authority dated 19.09.2006, which is a prerequisite condition for filing an appeal on 30.10.2006 in the prescribed proforma and he received the same on 01.01.2007 and subsequently filed the appeal on 12.01.2007. The reason for delay, if any, in filing the appeal was, therefore, beyond the control of the appellant and thus condoned. Regarding the second point of objection, it is evident that the respondent No.2 expressed his full consent in writing on several occasion for adjustment of his dues against the damage or loss caused by him. Moveover, the respondent No.2 never brought the matter of application of force, if any, by the appellant before the Police Authority. Hence, the respondent’s objection regarding the application of force in obtaining full consent does not stand at all. Thus it is ordered that the decision of the Ld. Controlling Authority is reversed and the management is justified by adjusting the amount of gratuity of the respondent No.2 against the damage or loss caused by him in accordance with his full consent. Hence the appeal is hereby disposed off in favour of appellant.” Mr. Banerjee appearing for the petitioner has submitted as follows. Since the criminal case initiated on the basis of the complaint of the employer ended in an acquittal, the consent to recovery obtained by applying force and hence not enforceable, could not empower or entitle the employer to recover the amount the petitioner owed, from the petitioner’s gratuity payable under the Payment of Gratuity Act, 1972. The appellate authority erred in law by interfering with the order of the controlling authority. Relying on the Supreme Court decision in Krishna Bahadur v. M/s.Purna Theatre & Ors., 2004(7) Scale 235 , Mr. Ghosh appearing for the employer has submitted as follows. Since in view of the unconditional consent to the proposed recovery the petitioner was not entitled to apply for a direction under sub-s.(4) of s.7 of the Act, the appellate authority rightly set aside the order of the controlling authority giving direction for paying the petitioner gratuity. It is the petitioner who himself asked his employer to recover the sum of Rs.2,76,832 that he owed, from his retirement benefits; and this is evident from his letter dated February 11, 2003. Accepting his request his employer prepared the recovery schedule mentioned in its letter dated March 19, 2003; the breakdown included the gratuity amount. It is the petitioner who himself asked his employer to recover the sum of Rs.2,76,832 that he owed, from his retirement benefits; and this is evident from his letter dated February 11, 2003. Accepting his request his employer prepared the recovery schedule mentioned in its letter dated March 19, 2003; the breakdown included the gratuity amount. The petitioner wrote a letter dated March 30/31, 2003 unconditionally giving his full consent to the recovery. In the two lawyer’s notices the petitioner did not say that the consent had been obtained by applying force. In the application for direction submitted to the controlling authority he did not say anything concerning the consent and the recovery. It is during pendency of the application for direction that the employer lodged a complaint dated November 5, 2003 with the Belgharia police station in North 24Parganas. The allegation was that the petitioner had misappropriated a sum of Rs.5,47,608.51. It was mentioned that on the basis of the consent a sum of Rs.2,76,832 had been recovered from the petitioner’s retirement benefits. After completing investigation the police officer concerned submitted a charge-sheet dated August 30, 2004 under s.420/409 IPC; and it is only in his reply dated January 24, 2006 submitted to the controlling authority that for the first time the petitioner alleged that his employer had obtained his signatures on blank papers by applying force. He, however, did not take any step to prove this allegation. In the WP it has not been alleged that the consent was obtained by applying force. It is, therefore, evident from the above-noted facts that the petitioner did not dispute the correctness of the fact that he asked his employer to recover the amount he owed from his retirement benefits. The question, therefore, is whether the request and consent of the petitioner entitled his employer to retain the gratuity amount towards payment of a part of the amount the petitioner owed. No provision of the Payment of Gratuity Act, 1972 forbids a person entitled to gratuity from his employer to ask his employer to retain the gratuity amount towards payment of any amount he owes the employer. Hence there is no reason to say that the petitioner’s request to his employer to recover the sum of Rs.2,76,832 from his retirement benefits including gratuity was illegal or contrary to any law, public policy or public interest. Hence there is no reason to say that the petitioner’s request to his employer to recover the sum of Rs.2,76,832 from his retirement benefits including gratuity was illegal or contrary to any law, public policy or public interest. The provisions of the Payment of Gratuity Act, 1972 created the petitioner’s legal right to receive the gratuity amount mentioned in the recovery proposal dated March 19, 2003 prepared by his employer. It is evident from the petitioner’s letter dated March 30/31, 2003 and the things he wrote on the proposal letter dated March 19, 2003 on March 31, 2003 that he consciously and unconditionally waived his legal right to receive the gratuity amount. This being the position, I am of the considered opinion that the petitioner was not entitled to apply to the controlling authority for a direction upon his employer under sub-s.(4) of s.7 of the Act whose clauses (a) and (b) are quoted below:- “(4)(a) If there is any dispute to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. (b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.” I am, therefore, of the view that the controlling authority was wrong in holding that even in the face of the request, proposal and consent the petitioner was entitled to the gratuity amount that his employer had retained towards part payment of the amount the petitioner owed. The appellate authority, therefore, was justified in allowing the appeal of the employer and setting aside the order of the controlling authority. For these reasons, the WP is dismissed. No costs.