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Calcutta High Court · body

2016 DIGILAW 479 (CAL)

Talbot & Company v. State of West Bengal

2016-06-14

SAMBUDDHA CHAKRABARTI

body2016
JUDGMENT : 1. Let the affidavit of service as well as the supplementary affidavit filed by the petitioner in Court today be kept with the record. 2. Heard Mr. Majumder, the learned advocate for the petitioner and Mr. Datta, the learned advocate for the respondent no. 3 and perused the writ petition. 3. The writ petition is directed against an order, dated February 19, 2016, passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (the Act, for short) rejecting the application of the writ petitioner for amendment of the written statement. 4. From the application for amendment it appears that the petitioner wanted to incorporate certain sub-paragraphs after paragraph 6 relating to the offence of cheating allegedly committed by the respondent no. 3, the former employee of the petitioner’s company. The Controlling Authority did not allow it on two grounds. First, the matter has reached the stage of evidence and secondly, if such amendment is allowed it will lead to a perpetual condition where the process may be repeated for ends on. While making the second observation the Controlling Authority must have drawn on his experience of lingering the application for payment of gratuity of a retired employee. 5. I agree with the first observation that at the stage of taking evidence the amendment should not be allowed. Even the Court of Civil Procedure contains a similar provision putting a restraint of the Court to allow an application for amendment beyond a certain point. Or. 6 R. 17 of the Code of Civil Procedure specifically says that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. This is not the position here, at least does not appear from the application made by the Company before the Controlling Authority. 6. Moreover, this Court has recently approved the view of the Controlling Authority in W.P. No. 4691 (W) of 2016 (Washbari Tea Company Pvt. Ltd. vs. The Appellate Authority under the Payment of Gratuity Act, 1972 and Others) where Mr. Majumder appeared for the concerned employee, that an on-going proceeding against the former employee cannot prohibit him from claiming gratuity and the employer was bound to provide the same to the applicant. Majumder appeared for the concerned employee, that an on-going proceeding against the former employee cannot prohibit him from claiming gratuity and the employer was bound to provide the same to the applicant. The Court did not accept the contention of the employer that the pendency of a criminal case may one day result in the conviction of an employee and thereby the loss that has been allegedly caused to the employer may be adjusted against the gratuity that may be paid to the employee. 7. Mr. Majumder now appearing for the Company inter-alia, would not like the principle to be applied to the present case. The Court does not have the freedom of applying different principles to different cases where the fact situation is substantially the same. The distinction that Mr. Majumder wanted to make is that in the earlier case the Company lodged a complaint after the retirement of the petitioner and here the complaint was lodged before the employee had retired. Ultimately, it comes to Tweedledum and Tweedledee. 8. That apart, a look at the complaint definitely raises doubt about the diligence with which the petitioner moved, if not its bona fide. It is not understood, if a Company has suffered such a huge loss as alleged for any act of the employee why should it write a complaint and then wait for more than three weeks to serve it upon the police station and that too only three days before the retirement of the employee. Mr. Majumder has no idea whether the complaint lodged with the police station was a backdated one. Such belated lodging of the complaint is a pointer not be ignored. 9. I have discussed the matter in details only to buttress the logic of the Controlling Authority that even if it had been filed at the proper time it might not have been a matter of valid consideration for him as, on the parity of logic of the order passed in WP No. 4691 (W) of 2016, Mr. Mujumder’s feeble justification that the present case stands on a different footing is not ready sustainable. It has been stated in the present case that because of the employee the Company has suffered damages which entitles it withhold the gratuity as provided in Section 4(6) of the Payment of Gratuity Act. 10. That entirely depends upon how carefully a sentence was inserted. It has been stated in the present case that because of the employee the Company has suffered damages which entitles it withhold the gratuity as provided in Section 4(6) of the Payment of Gratuity Act. 10. That entirely depends upon how carefully a sentence was inserted. After all, the facts of the case in WP No. 4691 (W) of 2016 where Mr. Majumder appeared for the employee, the employer’s grievance that the employee had not deposited Rs. 32 lakhs to the Company. If that was not a loss to the Company, I wonder how this amount should be considered a serious loss to the Company qualifying for the exception under Section 4(6) of the Act. 11. Mr. Majumder made a further grievance that the Controlling Authority has closed the evidence without giving any opportunity to the opposite party to lead evidence. 12. I have perused the orders passed by the Controlling Authority, as annexed to the writ petition and I find that the employer was, through various pleas, trying to take time and wanting not to lead any evidence. It is not clear why from March 29, 2016 they were trying to take time projecting their desire to file a writ petition in High Court when the writ petition was actually filed on April 25, 2016. A decision taken to file a writ petition is no ground for delay in conducting the case and obtaining adjournments. The Company has not even filed its Examination-in-Chief in the form of an affidavit. The Company was given repeated opportunities but the authorised representative of the Company declined to lead any evidence, do not find the conduct of the case by the employer to be satisfactory or the successive orders passed by the Controlling Authority warrant any interference by this Court. As I had started my order, I repeat the same, the observation of the Controlling Authority that if such applications are allowed, it is likely to lead to perpetuating the process for ends on, must have been an observation based on his experience. 13. However, to make complete justice between the parties I direct the Controlling Authority to fix a date for leading evidence by the Company and cross-examination. I repeat that the entire thing should be expedited as early as possible without granting any adjournment unless it becomes absolutely necessary. 14. 13. However, to make complete justice between the parties I direct the Controlling Authority to fix a date for leading evidence by the Company and cross-examination. I repeat that the entire thing should be expedited as early as possible without granting any adjournment unless it becomes absolutely necessary. 14. As such I find no merit in the writ petition and the same is dismissed. 15. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.