M. M. T. C. (Mica Devn) Minerals & Metal Trading Corporation of India Ltd. etc. v. Mihir Kumar Chatterjee
2012-07-26
ALOK SINGH
body2012
DigiLaw.ai
ORDER By the Court.-All these writ petitions are inter-connected and identical questions of facts and laws are involved therefore, they are being head and disposed of with the consent of the parties by this common judgment. 2. Order dated 31st January, 2000 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 as well as Appellate Authority dated 25th October, 2000 are under challenge in these petitions. 3. For the sake of brevity the facts of C.W.J.C. No. 2040 of 2001 (M/s. M.M.T.C. (Mica. Division) Minerals & Metal Trading Corporation of India Limited v. Union of India and others) are being discussed to understand the controversy respondent No. 2 Sri Sajjan Kumar Bhudolia was appointed as daily rated worker on 7.5.1973. His services were regularized with effect from 13.5.1975. He retired on 10.7.1993 under the Voluntarily Retirement Scheme. Applicant respondent No. 2 Sri Sajjan Kumar Bhudolia was paid gratuity with effect from 13.5.1975 to 10.7.1993. Since gratuity for the period when applicant worked as daily rated worker has not been paid respondent No. 2, moved the authority and on the application of applicant-respondent No.2. Authority has passed the order directing the petitioner to pay gratuity as well as statutory interest @ 10% per annum for the period applicant respondent No.2 had worked as daily rated worker. 4. Mr. Raj Nandan Sahay, learned counsel for the petitioner has vehemently argued that prior to the regularization of service on 13.5.1975 the applicant respondent No. 2 was working as daily rated casual worker therefore, to attract entitlement for the gratuity applicant respondent No.2 has to prove that for each and every year prior to his regularization he had actually worked for 240 days Mr. Sahay has further argued that both the authorities below have not recorded any finding that the applicant-respondent No.2 had in fact worked for 240 days per year before regularization of service. Therefore, order impugned is against the mandate of Section 2-A read with Section 4 of the Payment of Gratuity Act, 1972. Mr. Sahay has further argued that in the absence of finding that on the date of order passed by the competent authority 10% per annum was the prevailing rate of interest award of interest at the rate of 10% per annum is not legal. He has further argued that there is mistake of calculation. 5.
Mr. Sahay has further argued that in the absence of finding that on the date of order passed by the competent authority 10% per annum was the prevailing rate of interest award of interest at the rate of 10% per annum is not legal. He has further argued that there is mistake of calculation. 5. Learned appellate authority in paragraph No. 11 has mentioned name of the workman. Date of daily rated appointment and date of regular appointment, as under:- Sl. Name of the workman Date of daily Date of regular No. rated appointment 1. Sri Birendra Prasad 4.1.1974 20.4.1977 2. Sri Bhagwan Das 11.2.1974 22.1.1976 3. Sri Sajjan Kumar Bhudolia 7.5.1973 13.5.1975 4. Sri Boniface Murmu 1.4.1976 1.4.1977 5. Sri Ram Janam Ram 18.5.1973 22.1.1976 6. Sri Mihir Kumar Chatterjee 15.1.1974 22.1.1976 7. Sri Damodar Mishra 30.4.1973 22.3.1975 8. Sri Nripesh Kanti Mazumdar 27.8.1973 1.4.1977 9. Sri Arjun Prasad Mishra 10.2.1976 11.1.1978 6. Learned appellate authority in paragraph 12 has observed as under: "In view of the provisions contained in Section 4 read with Section 2-A the Controlling Authority was justified in awarding the gratuity for these period. Even for argument sake if it is presumed that if these employees were not given regular appointment and had continued on temporary basis as daily rated employee are they not entitled for the gratuity for rendering continuous service more than 5 years? The answer cannot be no unless it is proved that they did not actually worked with the employee for not less than 240 days during the 12 calender months for the said period of one year for the purpose of continuous service for the period of one year as provided in Section 2-A(2). Since the appellant-employer has failed to prove anything of this sort in respect of any of the respondents workmen I do not find any ground to interfere in the findings of the Controlling Authority in this regard." 7. There is no dispute that prior to the date of regularization applicants workers were working in the Organization. Organization must be maintaining attendance register. Petitioner-Organization could have placed attendance register before the Authority to say that, in fact, applicants have not worked regularly for 240 days in a particular calender year.
There is no dispute that prior to the date of regularization applicants workers were working in the Organization. Organization must be maintaining attendance register. Petitioner-Organization could have placed attendance register before the Authority to say that, in fact, applicants have not worked regularly for 240 days in a particular calender year. Moreover; the stand taken by the petitioner before the competent Authority was that, in fact, applicants workers were not in the employment of the Corporation before the regular appointment. Therefore, the competent Authority has entered into the question as to whether workers were in the employment of the Corporation. Learned Authority, having found that contribution of G.P.F. was paid by the Corporation, has observed that the workers were in the employment of the Corporation as early rated workers. While exercising the jurisdiction under Article 226 of the Constitution of India, this Court ordinarily does not enter into the disputed questions of fact and calculation. Finding recorded in paragraph 12 of the judgment passed by the Appellate Authority seems to be totally justified and valid. 8. Respondents workers were not paid gratuity for the period 1974 to 7.6.1977 till date. Therefore, rate of interest awarded by the competent Authority needs no interference. 9. All writ petitions are dismissed. Orders impugned are upheld. Let payment be released, as directed by Prescribed Authority, positively, within sixty days. 10. Copy of this order shall be kept in each connecting file. Petitions dismissed.