R. M. Engineering Works v. Khushalbhai Manilal Chavda
2013-04-16
Jayant Patel, Mohinder Pal
body2013
DigiLaw.ai
Judgment Jayant Patel, J.—ADMIT. Ms. Vijayalakshmi, learned Counsel, waives service for Respondent No. 1 and Mr. Jayaswal, learned AGP, waives service for respondents No. 2 and 3. With the consent of learned counsel appearing on both sides, the matter is taken up for final disposal. 2. The present appeal is directed against the order dated 24.01.2012 passed by learned single Judge of this Court in SCA No. 830 of 2012, whereby learned single Judge, for the reasons recorded in the order, did not interfere with the order passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as “the Act”). 3. The short facts of the case are that, as per the appellant, Respondent No. 1 retired from service with effect from 15.11.2000 since he had reached the age of superannuation on completion of 60 years of age, whereas as per Respondent No. 1, he had not completed the requisite length of service nor had he reached the age of superannuation. Thereupon, a dispute under the Industrial Disputes Act was raised, which ultimately came to be referred to the Labour Court for adjudication, being Ref. (LCA) No. 110 of 2001. The Labour Court at the conclusion of the reference, passed the award whereby the action of the appellant of terminating the services of the respondent on 15.11.2000 was held to be illegal. However, pending the reference, as the company was closed, reinstatement of the respondent was not considered and an amount of Rs. 50,000/- was ordered to be paid to the respondent as lumpsum compensation in lieu of reinstatement. The said award came to be passed on 12.3.2009. Thereafter, it appears that an application was made by Respondent No. 1 before the Controlling Authority for payment of gratuity on the basis of the award passed by the Labour Court and it was prayed that since his services were terminated on 15.11.2000 and he had completed 28 years of service and he was being paid wages, the gratuity be fixed at Rs. 46,200/- plus interest @ 10% per annum. The competent authority, after hearing both sides, passed order on 31.7.2010 whereby the appellant was directed to pay the amount of Rs. 46,200/- with interest @ 10% per annum from 15.11.2000.
46,200/- plus interest @ 10% per annum. The competent authority, after hearing both sides, passed order on 31.7.2010 whereby the appellant was directed to pay the amount of Rs. 46,200/- with interest @ 10% per annum from 15.11.2000. The matter was carried in appeal and the said appeal came to be dismissed, against which petition was preferred before this Court by way of SCA No. 830 of 2012. Learned single Judge, upon finding that there are concurrent orders of two lower authorities, did not interfere with the order of the lower authorities and dismissed the petition. Under the circumstances, the present appeal before us. 4. Learned counsel for the appellant raised the first contention that the date of retirement of Respondent No. 1 could not be treated as 15.11.2000 since the Labour Court has not ordered for reinstatement but has ordered for payment of lumpsum compensation in lieu of reinstatement. It was submitted that an amount of Rs. 50,000/- is already paid as lumpsum compensation and, therefore, there was no question of calculating the amount of gratuity. 5. In our view, the said contention deserves to be rejected on the face of it inasmuch as payment of lumpsum compensation in lieu of reinstatement is towards backwages and reinstatement, but it cannot be considered as in lieu of gratuity which otherwise any workman or employee would be entitled to get as per the Act for the period during which he had worked. It is not in dispute that Respondent No. 1 had discharged duty upto 15.11.2000 and by which period he had worked for about 28 years. Therefore, the amount of gratuity would be payable to him as per the scheme of the Act for the period during which he had worked. Under the circumstances, it cannot be said that merely because lumpsum compensation in lieu of reinstatement has been ordered, the right to get gratuity as per the Act would get extinguished or would not remain. Hence, the contention cannot be accepted. 6. It was next contended by learned counsel for the appellant that while calculating the amount of gratuity, travelling allowance and washing allowance are taken into consideration. In the submission of learned counsel for the appellant, if the said amount is excluded, the wages would not be Rs. 110/- as considered by the Controlling Authority.
6. It was next contended by learned counsel for the appellant that while calculating the amount of gratuity, travelling allowance and washing allowance are taken into consideration. In the submission of learned counsel for the appellant, if the said amount is excluded, the wages would not be Rs. 110/- as considered by the Controlling Authority. It was submitted that the said aspect was not considered by the Controlling Authority nor by the Appellate Authority and, therefore, the same may be considered in the appeal. In support of his submission, learned counsel relied upon the definition of the word “wages” as provided under section 2 (s) of the Act. 7. In our view, the aforesaid contention deserves consideration. Section 2 (s), for ready reference, reads as under: “Sec. 2 Definitions.—In this Act, unless the context otherwise requires,— (s) “wages” means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.” 8. The aforesaid shows that house rent allowance is specifically excluded and it also excludes other allowances. We are, in the present case, only required to consider as to whether washing allowance and transport allowance should be included in the wages or not. So far as washing allowance is concerned, it is Rs. 0.40 ps. The said amount of allowance is in addition to the wages and cannot be equated as emoluments while on duty and, therefore, it appears to us that the said allowance cannot be included in the wages. Whereas, so far as travelling allowance is concerned, the salary slip shows that there are internal compositions of wages: (i) basic salary, (ii) dearness allowance (D.A.), (iii) ad-hoc, (iv) arrear allowance, (v) travelling allowance, and (vi) fix D.A. All such components are parts of wages. The contention that travelling allowance is required to be excluded for the purpose of calculating wages cannot be accepted for the reason that it is not a matter that on a particular day a travelling was made by the employee concerned and an additional travelling allowance is to be paid. But from the salary slip it appears that the said travelling allowance is to be paid regularly.
But from the salary slip it appears that the said travelling allowance is to be paid regularly. The employee concerned for reaching to the place of work has to travel for such purpose to remain on duty and if he is on duty, he would be entitled to travelling allowance. As per the definition, all emoluments while the workman is on duty are to be included for the purpose of gratuity. The incidence of entitlement of travelling allowance is not contingent of any other circumstances except while on duty. Therefore, we find that though it is titled as “travelling allowance”, it cannot be excluded while calculating wages, as sought to be canvassed. 9. In view of the aforesaid observations and discussion, out of the amount of Rs. 110/- as treated as wages, at the most Rs. 0.40 ps. will be required to be deducted and consequently the net amount may come to Rs. 109.60 ps. Even if that figure is rounded off and we find that if the Controlling Authority has rounded off the figure to Rs. 110/- since it is exceeding 50 paise, such approach cannot be said to be unreasonable or arbitrary. 10. It was next contended by learned counsel for the appellant that interest @ 10% p.a. ought not to have been ordered with effect from 15.11.2000, but could have been ordered from the date on which the Labour Court passed the award on 12.3.2009. 11. We find that the said contention does not deserve to be accepted, because the liability to pay gratuity as per the Act would accrue on the date when the person concerned is made to retire. In the present case, Respondent No. 1 was made to retire on 15.11.2000. Therefore, the liability had accrued on that day. The Labour Court has not directed for reinstatement on the date when he would have completed the age of 60 years. Had there been reinstatement in the year 2012, the matter might stand on a different footing. But in such circumstance also, there will be addition of years for entitlement of gratuity. As against the same, the Controlling Authority has taken the basis as the actual date of retirement on 15.11.2000, which cannot be said to be unreasonable or arbitrary. There was accrual of liability and the workman concerned was deprived of the same.
But in such circumstance also, there will be addition of years for entitlement of gratuity. As against the same, the Controlling Authority has taken the basis as the actual date of retirement on 15.11.2000, which cannot be said to be unreasonable or arbitrary. There was accrual of liability and the workman concerned was deprived of the same. Even otherwise also, interest would be payable by way of compensatory measure since the appellant has not parted with money and has enjoyed the money as against deprivation by the workman. Therefore, direction for awarding of interest from 15.11.2000, which is the actual date on which Respondent No. 1 was made to retire, could not be said as illegal or not authorised under law. 12. In view of the aforesaid observations and discussion, we find that the ultimate decision taken by learned single Judge does not call for interference. As the appeal is meritless, it is dismissed. 13. Considering the facts and circumstances, the amount of Rs. 5,000/- which has been deposited by the appellant shall be paid to Respondent No. 1 towards cost of the litigation. As the amount is already deposited, Respondent No. 1 shall be at liberty to withdraw this amount.