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2017 DIGILAW 185 (JHR)

Bharat Coking Coal Limited v. State of Jharkhand

2017-01-25

RONGON MUKHOPADHYAY

body2017
JUDGMENT : Heard the parties. 2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with P.G. Case No. 71 of 2004, including the order dated 15.3.2004, passed by the learned Chief Judicial Magistrate, Dhanbad, whereby and whereunder cognizance has been taken for the offence under section 9(2) of the Payment of Gratuity Act, 1972. (The Act for short). 3. It appears that a complaint case was instituted by the opposite party no. 2 on the allegation that the employer had failed to pay the amount of gratuity to the employees within 30 days from the date it became payable under section 7(3). Pursuant to filing a complaint, cognizance was taken on 15.3.2004 by the learned Chief Judicial Magistrate, Dhanbad for the offence under section 9(2) of the Payment of Gratuity Act and which is under challenge in the present application. 4. It has been submitted by the learned counsel for the petitioners that for recovery of gratuity, the provisions are indicated in the Act itself. In support of his contention, he has referred to Section 7 (3) of the Payment of Gratuity Act. It has further been submitted that even if the gratuity amount is not paid, authority may take recourse to Section 8 by issuing a certificate for recovery of the same from the employer along with compound interest thereon. Learned counsel submits that Section 7(3-A) provides that if the amount of gratuity payable under sub section (3) is not paid by the employer within the period specified, the employer shall pay simple interest from the date it becomes payable. Learned counsel further submits that entire criminal proceedings as against the petitioners deserve to be quashed and set aside. 5. Learned A.P.P. has supported the impugned order and has submitted that the petitioners failed to pay gratuity amount within 30 days from the date it became payable in respect of 13 employees and as such the criminal prosecution initiated against the petitioners under section 9(2) of the Payment of Gratuity Act is in accordance with law. It has been submitted that non payment of gratuity within the time specified under the Act would definitely attract the penal provision as indicated in Section 9(2) of the Act. 6. It has been submitted that non payment of gratuity within the time specified under the Act would definitely attract the penal provision as indicated in Section 9(2) of the Act. 6. It appears from the complaint petition that the complainant is aggrieved by non-payment of gratuity amount to the employees within 30 days from the date it became payable. Section 7 of the Payment of Gratuity Act envisages determination of the amount of gratuity and Sub Section(3) of Section 7 provides that the employer shall arrange to pay the amount of gratuity, within thirty days from the date it becomes payable to the person to whom the gratuity is payable and if the amount of gratuity is not paid within the time specified in sub section (3-A) of Section 7 as indicated in sub section (3-A) of the said provision, it can be gathered that if the employer failed to pay the gratuity amount within thirty days from the date it becomes payable then the employer is liable to make payment of simple interest at such rate not exceeding the rate notified by the Central Government. In order to ensure that the payment of gratuity is made, a further provision has been inserted being Section 8 of the Act, from which it appears that if the amount of gratuity is not paid within the time specified, the controlling authority shall on an application made to it by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest thereon. It appears that the opposite party no. 2 being aggrieved has instituted a complaint case for non-payment of gratuity amount within the period of 30 days from the date it became payable. Sub Section (3-A) of Section 7 and Section 8 provides proper recourse to the opposite party no. 2 for payment of gratuity to the employee concerned but without taking recourse to such provision, straightway a complaint case has been filed, which appears to be premature. 7. Since there is a remedy available to the complainant and the employer is liable to make payment of simple interest if gratuity is not paid within the time prescribed in the statute, the criminal prosecution initiated against the petitioners would subvert the objects and purposes of the statute. 7. Since there is a remedy available to the complainant and the employer is liable to make payment of simple interest if gratuity is not paid within the time prescribed in the statute, the criminal prosecution initiated against the petitioners would subvert the objects and purposes of the statute. It further appears from the supplementary affidavit filed by the petitioners that during pendency of this application, gratuity amount has already been paid to the employees concerned. The circumstances, indicated above, would thus lead to a conclusion that continuation of criminal proceeding against the petitioners would be an abuse of the process of court and will be a miscarriage of justice. 8. In view of what has been stated above, this application is allowed and the entire criminal proceedings in connection with P.G. Case No. 71 of 2004, including the order dated 15.3.2004, passed by the learned Chief Judicial Magistrate, Dhanbad, whereby and whereunder cognizance has been taken for the offence under section 9(2) of the Payment of Gratuity Act, 1972, is hereby quashed and set aside.