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Jharkhand High Court · body

2017 DIGILAW 2041 (JHR)

Sahdeo Turi v. Central Coalfields Ltd.

2017-11-25

RATNAKER BHENGRA

body2017
ORDER : 1. Heard the learned counsel for the parties. This writ application has been filed for quashing the order dated 7/12.1.2011 passed by the Regional Labour Commissioner (Central), Dhanbad (Annexure-3) and also the order dated 28.6.2010 passed by the Asstt. Labour-Commissioner (Central), Hazaribagh (Annexure-2) as also for issuance of direction for payment of gratuity with interest to the petitioner from the date when gratuity has become payable. 2. It is stated that the father of the petitioner late Raghu Turi was an ex-employee (Category-1) of Karo-l and Kalyani Project of M/s. C.C. Ltd. The father of the petitioner was appointed in C.C.L. on 17.10.1971 and dismissed from service on 15.7.1988. Thereafter, his father was again reinstated in the company on 2.11.1992 and he continued his service till his death i.e. 12.9.2001. His reinstatement in service was treated as fresh service. However, the gratuity for the period of service rendered earlier was not given. The management of C.C.L. paid the gratuity amount to the petitioner for the period from 2.11.1992 to 12.9.2001 against the continuous service of 8 years and 10 months but had not paid gratuity for the period from 17.10.1971 to 17.5.1988. 3. It is further stated that thereafter the petitioner filed an application Case No. 36(137)/2003 before Asstt. Labour Commissioner (Central) for the payment of gratuity. Assistant Labour Commissioner by impugned order dated 28.6.2010 had decided in favour of the petitioner and accordingly Rs. 64.133/- was calculated as payable gratuity to the petitioner for the period from 17.10.1971 to 17.5.1988. 4. The learned counsel for the petitioner has pointed out to the impugned order of the Controlling Authority who is the Assistant Labour Commissioner that gratuity for the period from 2.11.1992 to 12.9.2001 amounting to Rs. 33.905/- against the continuous service of 8 years and 10 months @ Rs. 251.15 per day treating his last wages drawn has already been deposited but the gratuity for the period from 17.10.1971 to 17.5.1988 has not been paid either to the deceased workman or to his dependents. The case was heard on several dates and concluded on 10.6.2010 in absence of opposite party. 251.15 per day treating his last wages drawn has already been deposited but the gratuity for the period from 17.10.1971 to 17.5.1988 has not been paid either to the deceased workman or to his dependents. The case was heard on several dates and concluded on 10.6.2010 in absence of opposite party. The learned counsel for the petitioner has further submitted that even the Controlling Authority in its impugned order has indicated that it is unfortunate that opposite party that is the management of Kalayani Project of M/s. C.C.L. had failed to produce the last wages drawn by the workman. although the case continued for about two years. In spite of repeated instruction from the Controlling Authority, the opposite party and his authorized representative namely Shri Choubey. Sr. Personnel Officer has failed to submit the last pay drawn by the workman as a result of which controlling authority had to linger the case for unreasonably long period. Thereafter. last pay drawn by the deceased workmen in Karo-l Project was treated as last pay drawn by the workmen in Kalayani Project and accordingly. Rs. 251.50 was accepted as last pay drawn by the applicant in Kalayani Project as on 17.5.1988. Based on that. the workman had completed continuous service with effect from 17.10.1971 to 17.5.1988 which comes to 16 years, 6 months and 21 days. Therefore, the workman is entitled to receive gratuity for 17 years x 15 days = 255 days multiplied by@ Rs. 251.50 per day which comes to Rs. 64,133 as payable gratuity. 5. The learned counsel for the petitioner further submits that thereafter, the respondent No. 2 made an appeal before the Regional Labour Commissioner (Central) Dhanbad as Case No. PG Appea1/(30)/2010 stating therein that the father of the petitioner was not at all entitled for gratuity for the period from 17.10.1971 to 17.5.1988. The Regional Labour Commissioner by impugned order dated 7/12.1.2011 held that the petitioner was entitled for the payment of gratuity and accordingly the amount was calculated on the basis of last drawn wages of Rs. 51.47 instead of Rs. 251/- per day (as fixed by the Asstt. Labour Commissioner) for the period from 17.10.1971 to 15.5.1988 as Rs. 13,125.85. 6. Counsel for the• petitioner submits that the petitioner is aggrieved by reducing amount from Rs. 64,133/- to Rs. 51.47 instead of Rs. 251/- per day (as fixed by the Asstt. Labour Commissioner) for the period from 17.10.1971 to 15.5.1988 as Rs. 13,125.85. 6. Counsel for the• petitioner submits that the petitioner is aggrieved by reducing amount from Rs. 64,133/- to Rs. 13,124.85 and he is also aggrieved by the order of the Controlling Authority and Appellate Authority that they failed to grant interest to the petitioner who is legally entitled for the payment of gratuity with interest as per Section 7(3-A) of the Payment of Gratuity Act, 1972. 7. The learned counsel for the petitioner further submitted that the amount of Rs. 64,133/- was decided after giving many opportunity and considerable time to the management and then only the amount was calculated on the basis of last drawn wages of RS. 251.50 per day. The learned counsel for the petitioner further stated that the petitioner is the son of the former employee of C.C.L. and it is not possible for him to know the minor and small details regarding payment of gratuity and his father had passed away in the year 2001. He. has further stated that the respondents were directed to pay the amount of gratuity to the petitioner but the respondents malafidely did not make payment of gratuity to the petitioner for the period from 17.10.1971 to 17.5.1988 and it is the onus of the respondents-company to pay the gratuity to the petitioner but they failed to do so. The learned counsel for the petitioner has further submitted that since concerned authority of the C.C.L. has failed to produce the last wages drawn by the workman, the Controlling Authority was compelled to linger the case for an unreasonably long period. From the record, it appears that by order dated 17.12.2014 of this Hon'ble Court three weeks time was given to the respondent to clarify from the management to ascertain what was the last pay drawn on 17.5.1988. Now it is 25 of November in the year 2017, more than three years have passed and still respondents are searching and searching but it has not been ascertained from the management as yet and therefore due to the fault of the respondent-company, the petitioner should not be unnecessarily harassed and punished. 8. Now it is 25 of November in the year 2017, more than three years have passed and still respondents are searching and searching but it has not been ascertained from the management as yet and therefore due to the fault of the respondent-company, the petitioner should not be unnecessarily harassed and punished. 8. The learned counsel for the petitioner has relied upon the decision regarding payment of interest on delayed payment of gratuity and cited the case of H. Gangahanume Gowda v. Karnataka Agro Industries Corporation Ltd., reported in AIR 2003 SC 1526 , wherein the learned Apex Court has held in paragraph 9 of the said judgment which reads as follows : 9. It is clear from what is extracted above from the order of learned single Judge that interest on delayed payment of gratuity was denied only on the ground that there was doubt whether the appellant was entitled to gratuity, cash equivalent to leave etc. in view of divergent opinion of the Courts during the pendency of enquiry. The learned single Judge having held that the appellant was entitled for payment of gratuity was not right in denying the interest on the delayed payment of gratuity having due regard to Section 7(3-A) of the Act. It was not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the Controlling Authority for the delayed payment on that ground. As noticed above, there is a clear mandate in the provisions of Section 7 to the employer for payment of gratuity within time and to pay interest on the delayed payment of gratuity. There is also provision to recover the amount of gratuity with compound interest in case of amount of gratuity payable was not paid by the employer in terms of Section 8 of the Act. Since the employer did not satisfy the mandatory requirements of the proviso to Section 7(3-A), no discretion was left to deny the interest to the appellant on belated payment of gratuity. Since the employer did not satisfy the mandatory requirements of the proviso to Section 7(3-A), no discretion was left to deny the interest to the appellant on belated payment of gratuity. Unfortunately, the Division Bench of the High Court, having found that the appellant was entitled for interest, declined to interfere with the order of the learned single Judge as regards the claim of interest on delayed payment of gratuity only on the ground that the discretion exercised by the learned single Judge could not be said to be arbitrary. In the first place in the light of what is stated above, the learned single Judge could not refuse the grant of interest exercising discretion as against the mandatory provisions contained in Section 7 of the Act. The Division Bench, in our opinion, committed an error in assuming that the learned single Judge could exercise the discretion. in the matter of awarding interest and that such a discretion exercised was not arbitrary. 9. The learned counsel for the petitioner has referred to Section 7(3-A) of the Payment of Gratuity Act, 1972 which reads as follows : Section 7(3-A) "If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify : Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground." 10. The learned counsel for the petitioner has submitted that both the Controlling Authority and the Appellate Authority did not allow interest on the gratuity amount which petitioner is legally entitled for the payment of gratuity with interest under Section 7(3-A) of the said Act. 11. The learned counsel for the respondents has argued that father of the petitioner is entitled for payment of gratuity amount on the basis of last drawn wages of Rs. 51.47 for the period of service from 17.10.1971 to 15.5.1988 i.e. Rs. 11. The learned counsel for the respondents has argued that father of the petitioner is entitled for payment of gratuity amount on the basis of last drawn wages of Rs. 51.47 for the period of service from 17.10.1971 to 15.5.1988 i.e. Rs. 13,124.85 and on the basis of last drawn wages of Rs. 251.15 per day for the period of service from 2.11.1992 to 12.9.2001 amounting to Rs. 33,905.25 making the total gratuity amount of (Rs. 13, 124.85 + Rs.33,905.25) = Rs. 47,030.00. The learned counsel further stated that the Appellate Authority/Regional Labour Commissioner by his impugned order dated 7/12.1.2011 has held that the workman is entitled for the gratuity for the period from 17.10.1971 to 15.5.1988 @ Rs. 51.47 as last wages drawn. Therefore, the amount of Rs. 51.47 is the correct figure. The learned counsel for the respondents has further argued that the Appellate Authority on the basis of the last wages drawn @ Rs. 51.47 held that the workman was entitled for the period from 17.10.1971 to 15.5.1988 the gratuity amount of Rs. 13,124.85 and disallowed the order of the Controlling Authority calculating the gratuity amount for the period from 17.10.1971 to 15.5.1988 @ Rs. 251.50 as a last wages drawn amounting to Rs. 64,133/-. Regarding calculation of gratuity amount for the period from 17.10.1971 to 15.5.1988 at the rate of Rs. 51.47, the learned counsel for the respondents has further stated that the same was never denied by the petitioner before the appellate authority and the petitioner did not produce any document in support of his statement. Regarding interest on the amount of gratuity for the period from 17.10.1971 to 15.5.1988, the learned counsel further stated that Assistant Labour Commissioner (Central) did not allow interest on the amount of gratuity of the said period in the payment of Gratuity Claim Case filed by the petitioner. Thereafter regarding interest the petitioner did not challenge the order of the Controlling Authority before the Appellate Authority. 12. Having heard the learned counsel for the parties and having gone through the case record as also judgment cited by the counsel for the petitioner it is seen from the order of this High Court dated 17.12.2014 that as early as 2014 the respondents were already ordered to ascertain what was the last pay drawn on 17.5.1.988. 12. Having heard the learned counsel for the parties and having gone through the case record as also judgment cited by the counsel for the petitioner it is seen from the order of this High Court dated 17.12.2014 that as early as 2014 the respondents were already ordered to ascertain what was the last pay drawn on 17.5.1.988. Matter was placed before this Court at least four times thereafter and lastly on 25.11.2017 and still management did not produce the information regarding last pay drawn on 17.5.1988 as directed by this Hon'ble Court. In its impugned order dated 28.6.2010, the Assistant Labour Commissioner had faced the same difficulty in ascertaining the last wages drawn by the workman. He specifically wrote in the impugned order that it was unfortunate that opposite party in the case i.e. the management failed to submit the last wage drawn by workman, although the case continued for two years. He further wrote that in spite of repeated instructions, the management failed to submit the last drawn by the workman. Hence, the Assistant Labour Commissioner was then compelled to take Rs. 251.50 as the last pay drawn and gave reason s for arriving at his conclusion in his order. The learned counsel for the petitioner has rightly raised the point that regional Labour Commissioner i.e. the Appellate Authority arbitrarily fixed the last pay drawn by the workman as Rs. 51.47 without any basis and without sup porting documents. Lastly the respondent did not even clarify in this Hon'ble Court also what was the last pay drawn on 17.5.1988 by the workman. Because of this uncertain or unknown figure litigation has continued for so long. I think in view of the above, justice will be served, if the calculation is done as per the figure that was put forth i.e. Rs. 251.50 as last wage drawn as ascertained by the Assistant Labour Commissioner and also in view of the Section 7 (3-A) of the Payment of Gratuity Act, 1972 the petitioner is entitled to receive the amount of gratuity with interest. 13. Accordingly, respondent No. 3 is directed to pay the amount of gratuity @ Rs. 251.50 with interest at the admissible rate which is permissible in law and which the petitioner is entitled from the date when the gratuity has become payable till the date of payment of the gratuity amount. 13. Accordingly, respondent No. 3 is directed to pay the amount of gratuity @ Rs. 251.50 with interest at the admissible rate which is permissible in law and which the petitioner is entitled from the date when the gratuity has become payable till the date of payment of the gratuity amount. This order shall be complied by the respondents, by six weeks from the receipt of a copy of this order. 14. Accordingly, the order dated 7/12.1.2011 passed by the Regional Labour Commissioner (Central),. Dhanbad (Annexure-3) is quashed. According, this writ petition is allowed.0 Petition allowed.