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Gujarat High Court · body

2018 DIGILAW 927 (GUJ)

Golden Tobacco Limited v. District Collector

2018-07-30

K.M.THAKER

body2018
JUDGMENT K.M. THAKER, J. 1. Heard Mr.Patel, learned senior counsel with Ms.Raval, learned advocate for the petitioner company in Special Civil Application Nos.15226/2014, 15256/2014, 8447/2015 and 11790/2015 and Mr. Mehta, learned senior counsel with Ms.Bhatt, learned advocate for the respondents as well as Mr.Mankad, learned advocate for the respondents and Mr.Mankad, learned advocate for the petitioner and Ms.Raval, learned advocate for the respondent in Special Civil Application No.7108/2015. 2. So far as Special Civil Application Nos.15226/2014, 15256/2014, 8447/2015 and 11790/2015 are concerned, the said petitions have been taken out by the employer (petitioner company) against the order passed by the respondent Collector directing the Mamlatdar to recover the amount from the petitioner company in accordance with the order passed by the Controlling Authority. 3. It is necessary to mention at the outset that the parent orders passed by the Controlling Authority i.e. the order whereby the Authority held that the applicants (claimants) are entitled to gratuity and also entitled to receive the amount towards unpaid gratuity, as quantified and determined by the authority, are not challenged by the petitioner company in the said four petitions. 3.1 Even the Recovery Certificates issued by the Controlling Authority in pursuance of and on the basis of said parent orders holding that the applicants (claimants) are entitled to gratuity and quantified amount payable towards gratuity, are not challenged in the said four petitions. 3.2 The petitioner has challenged the orders issued by the Collector (upon receipt of the Controlling Authority's order and Recovery Certificate) whereby the Collector instructed the Mamlatdar to recover the amount as per the Controlling Authority's order. That is the limited scope of said 4 petitions. 4. So as to appreciate the challenge raised by the company, rival contentions of the petitioner company and the opponent workman, it is relevant to take into account the factual backdrop. 4.1 It has emerged from the record and from rival submissions that when the workmen (concerned in the said four petitions) attained 58 years of age, the company relieved them from service on the ground that they had attained age of superannuation. 4.2 Though the company relieved the respondents workmen (on ground of superannuation) it did not pay gratuity to said workmen. 4.3 The said non-payment of gratuity to the workmen who were relieved by the company gave rise to demand and dispute for gratuity. 4.2 Though the company relieved the respondents workmen (on ground of superannuation) it did not pay gratuity to said workmen. 4.3 The said non-payment of gratuity to the workmen who were relieved by the company gave rise to demand and dispute for gratuity. 4.4 It is pertinent to note, in this context that so far as the company is concerned (a) the age for superannuation is fixed at 58 years of age; (b) the claimants attained 58 years of age; (c) therefore they were liable to get relieved and retire from service; and (d) the company, therefore, relieved them from service on ground of superannuation (and not for/on ground of misconduct). 4.5 Thus, for the company, the 'service' of concerned claimants stood 'terminated' when the said claimants attained 58 years of age and on such 'termination' of their 'service' the relationship of 'employer' and 'employee' got severed. 4.6 Therefore, at that cut-off point section 4(1) (a) of Payment of Gratuity Act got attracted and became applicable on account of company's (employer's) action. 4.7 The 'termination' of service of the claimants which triggers the right to claim and receive gratuity occurred on account of company's action at the time when company relieved the workmen. 4.8 Despite this position the company did not pay gratuity to the claimants. 4.9 Several workmen approached Controlling Authority with their grievance and claim and demanded payment of gratuity. They filed applications in prescribed form with the allegation that the employer has not paid amount payable towards gratuity. The said applications were registered as gratuity claim application. 4.10 Further, several workmen also approached learned Labour Court with the claim that they are entitled to continue in service till they attain 60 years of age. 4.11 When the claimants approached the learned Labour Court, the company tried to hide behind said proceedings and on ground of proceedings the company justified its action of not paying gratuity. 4.12 The learned Labour Court adjudicated the reference cases instituted by the workmen and allowed the said reference cases holding that the claimants were entitled to continue in service until they attained 60 years of age. 4.13 The company has challenged in Special Civil Application Nos.1601/2014 and 1602/2014, the said decision/award passed by the learned Labour Court. Operation of the said award and decision by the learned Labour Court is stayed by the Court vide interim order dated 12.3.2014. 4.13 The company has challenged in Special Civil Application Nos.1601/2014 and 1602/2014, the said decision/award passed by the learned Labour Court. Operation of the said award and decision by the learned Labour Court is stayed by the Court vide interim order dated 12.3.2014. 4.14 At this stage, it is pertinent to note that during the pendency of dispute/claim before Controlling Authority (and, so also, before the learned Labour Court) all workmen/claimants (who were relieved by the company when they attained 58 years of age, have already crossed 60 years of age. 4.15 Thus, now (when the claimants have crossed 60 years of age) the dispute to claim and receive gratuity when the company relieved them, does not survive and the company, even otherwise, now does not have any ground to not pay gratuity payable at the cut-off stage i.e. to pay gratuity which would be payable when the said workmen attained 58 years of age. 4.16 In this backdrop the Controlling Authority adjudicated the claim applications. 4.17 During the proceedings before the Controlling Authority, the workmen claimants declared and clarified that in their respective applications, they have claimed gratuity only till the date when the company relieved them from service i.e. only upto the date when they attained 58 years of age and not till the date when they attain 60 years of age. 4.18 The Controlling Authority took note of the said submission and declaration by the workmen. 4.19 Having regard to the fact that it was the company which relieved the workmen on the ground that they had attained age of superannuation (at 58 years of age) and that in the applications, the workmen had not demanded gratuity till the date they attained 60 years of age but had restricted their claim upto the date when they attained 58 years of age, the Controlling Authority allowed the applications and directed the petitioner company to pay gratuity from the date of joining to the date when the claimant attained 58 years of age. 4.20 After the Controlling Authority passed the said order, the company did not take any steps to pay gratuity or to challenge the said order. 4.21 Since, even after the order passed by the Controlling Authority, the company did not pay gratuity, the claimants filed applications before the Controlling Authority to issue Recovery Certificate. 4.20 After the Controlling Authority passed the said order, the company did not take any steps to pay gratuity or to challenge the said order. 4.21 Since, even after the order passed by the Controlling Authority, the company did not pay gratuity, the claimants filed applications before the Controlling Authority to issue Recovery Certificate. 4.22 In pursuance of such application and request by the workmen, the Controlling Authority issued Recovery Certificates on the basis of the orders passed in respect of the gratuity claim applications. 4.23 Thereafter, the Controlling Authority forwarded the Recovery Certificates to the office of the Collector for its execution. 4.24 On receipt of the Recovery Certificates from the office of the Controlling Authority, the Collector issued instructions/passed orders to the concerned Mamlatdar to take steps to execute the Recovery Certificates and recover the amounts in question. 4.25 It is against the said instructions/orders passed by the Collector to the concerned Mamlatdar, that the petitioner company has taken out the said four petitions. 4.26 The said instruction/orders by the Collector are subject matter of present petitions and only those orders (passed by the Collector instructing the Mamlatdar to execute the Recovery Certificates) are challenged in present petitions, however, the orders passed by the Controlling Authority and/or the Recovery Certificates issued by the Controlling Authority are not challenged in the said four petitions. 4.27 The company claims that in the interregnum it filed appeals before the Appellate Authority. 4.28 At this stage, it is pertinent to note that while the company claims that it filed appeals before the Appellate Authority against the order of the Controlling Authority, it could not refute workmen's submission that while submitting the memo of appeal before the Appellate Authority, the company did not comply the condition precedent for maintaining appeal i.e. to deposit the amount determined by the Controlling Authority. 4.29 Learned AGP for the Appellate Authority submitted and clarified that since the company has not complied the pre-condition i.e. depositing the amounts determined and awarded by the Controlling Authority, the appeals are not maintainable and the appeals have not been registered by the Appellate Authority. Learned AGP relied on one of the communications i.e. communication dated 5.5.2014 and another communication dated 2.12.2014 whereby the Appellate Authority has informed the company that on account of non-compliance of the precondition, the appeal is not maintainable and cannot be registered. Learned AGP relied on one of the communications i.e. communication dated 5.5.2014 and another communication dated 2.12.2014 whereby the Appellate Authority has informed the company that on account of non-compliance of the precondition, the appeal is not maintainable and cannot be registered. 4.30 In view of the fact that the pre-condition for filing and maintaining appeals are, undisputedly, not complied (inasmuch as the amounts awarded by the Controlling Authority are not deposited by the company), the said appeals have not been registered by the Appellate Authority and they are not taken cognizance. 5. Mr.Patel, learned senior counsel with Ms.Raval, learned advocate for the petitioner company submitted that when the workmen had challenged the company's action of relieving them from service on ground of superannuation, the cause to claim gratuity did not occur and did not arise and such claim had not ripened and therefore, the applications could not have been entertained and granted by the Controlling Authority. The learned senior counsel for the petitioner company relied on the provisions under Sick Industrial Companies Act, 1985 and submitted that at the relevant time the proceedings were pending before BIFR and that, therefore, the proceedings before the Controlling Authority were not maintainable/protected under Section 22 of the Sick Industrial Companies Act and that since the Controlling Authority passed the orders during pendency of the proceedings before the BIFR, the orders passed by the Collector of recovery are not sustainable and they are hit by provisions under Section 22 of the Sick Industrial Companies Act. As a last recourse he pleaded financial crunch. Any other contention is not raised. 6. Mr.Mehta, learned senior counsel with Ms.Bhatt, learned advocate for some of the workmen and Mr.Mankad, learned advocate for other workmen submitted that according to the company, the workmen would retire from service on superannuation when they attained 58 years of age and that, therefore, the company relieved the workmen from services when the workmen attained 58 years of age. Under the circumstances, for the purpose of Section4, the services of the workmen stood terminated and consequently, the claim of the workmen would fall under Section 4(1)(a) of the Payment of Gratuity Act. Under the circumstances, for the purpose of Section4, the services of the workmen stood terminated and consequently, the claim of the workmen would fall under Section 4(1)(a) of the Payment of Gratuity Act. The obligation to pay gratuity arose when the company relieved the workmen and that merely because the workmen claimed before the learned Labour Court that they should have been continued in service until they attained 60 years of age, the proceedings before the Controlling Authority would not be rendered untenable. Mr.Mehta, learned senior counsel and Mr.Mankad, learned advocate for the workmen submitted that even otherwise, now the claimants have already attained 60 years of age and that, therefore, the objection by the company on the ground that in view of the pendency of the dispute about the age for superannuation, the gratuity claim applications could not have been granted, is untenable. It is also submitted the company has no reason to not pay gratuity payable at the time when the claimants concerned workmen were relieved and their services came to be terminated on ground of superannuation. 7. I have considered rival submissions and the material available on record. I have also considered the orders passed by the Controlling Authority and the orders/instructions issued by the Collector. 8. At the outset, it is relevant and necessary to mention that in view of the fact that the parent and substantive orders passed by the Controlling Authority in favour of the workmen whereby the gratuity claim applications came to be allowed, are not challenged in present petitions and in light of the fact that even the Recovery Certificates issued by the Controlling Authority are not challenged in present petition, first submission/contention raised by learned senior counsel for the company is not sustainable and cannot be entertained in present petitions. 8.1 For the same reasons, the orders/instructions passed by the Collector and/or the notices for recovery of gratuity amount (mentioned in the Controlling Authority's orders) cannot be quashed. The instructions/orders by the Collector to the Mamlatdar are only consequential steps or instruction issued by him for implementation of Controlling Authority's order. 9. 8.1 For the same reasons, the orders/instructions passed by the Collector and/or the notices for recovery of gratuity amount (mentioned in the Controlling Authority's orders) cannot be quashed. The instructions/orders by the Collector to the Mamlatdar are only consequential steps or instruction issued by him for implementation of Controlling Authority's order. 9. In light of the fact that the Collector issued instructions/orders so as to implement Controlling Authority's orders and recovery certificate coupled with the fact that the Controlling Authority's orders and the Recovery Certificates are not challenged, the direction by Collector and notices by Mamlatdar (which are based on Controlling Authority's orders and on the Recovery Certificates) cannot be interfered. 9.1 Unless the Controlling Authority's order are declared unsustainable and unless they are set aside, challenge against the Collector's orders should automatically and as a normal corollary, fail and fall. 9.2 In this view of the matter, the fact that in present petitions the petitioner has not even challenged the Controlling Authority's orders and/or the recovery certificates issued by the authority, is a vital factor in present case and that therefore, so far as the said 4 petitions by the company are concerned, there is no basis for challenge against the Collector's instructions or Mamlatdar's notices and the said orders and notices cannot be faulted or disturbed. 10. Upon being faced with this situation the company relied on the appeals filed by it. 10.1 Since the company seeks to take recourse to the appeals against Controlling Authority's orders, the Court will examine the petitioner's claim that it has filed appeals and challenged Controlling Authority's orders. 10.2 With regard to petitioner's said submission it is relevant to note that even the provision which enables a party aggrieved by the Controlling Authority's decision to file appeal before the Appellate Authority does not render any assistance to the petitioner and the said provision will not come to the rescue of the employer in the present case. 10.3 According to Section 7(7), an appeal would not be maintainable unless the amount determined by the Controlling Authority is deposited. 10.3 According to Section 7(7), an appeal would not be maintainable unless the amount determined by the Controlling Authority is deposited. The said Section 7(7) of the Payment of Gratuity Act reads thus: "(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf : Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days. Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount." 10.4 It is pertinent to note that the provision under sub-section (7) of section 7 prescribes that if an employer feels aggrieved by the decision of the Controlling Authority and intends to file appeal before the Appellate Authority under the Act, then as a condition, the employer must, first, deposit the amount quantified and determined by the Controlling Authority and the appellant employer must produce a certificate (along with the appeal memo) issued by the Controlling Authority that the appellant has deposited the amount equal to the amount determined under and by the order of Controlling Authority. For maintaining an appeal under subsection (7) of section 7, the obligation to deposit the adjudicated amount is a condition precedent. Unless such certificate is presented along with the memo of appeal, the appeal would not be maintainable and cannot be registered. A memo of appeal submitted in the office of Appellate Authority which is not accompanied by the certificate of payment of adjudicated amount, would not be registrable. Therefore, in the eye of law such submission of appeal memo in the office of appellate authority is as good as 'no filing' and such submission cannot be considered 'appeal before the Appellate Authority'. Therefore, in the eye of law such submission of appeal memo in the office of appellate authority is as good as 'no filing' and such submission cannot be considered 'appeal before the Appellate Authority'. 10.5 In the present case, the petitioner employer has, undisputedly, not deposited the adjudicated amount. Thus, such appeal cannot be and could not have been registered. The learned AGP has clarified that the Appellate Authority has not registered the appeals and by communications dated 5.5.2014 and 2.12.2014, the Appellate Authority has already informed the company with regard to the respective appeals that the appeals are not maintainable and cannot be registered on account of non-compliance of the condition. 10.6 Thus, on one hand, there is no appeal against the Controlling Authority's order, whereas on the other hand the petitioner employer has, in present petitions (or in any other proceedings) not challenged the Controlling Authority's order or the recovery certificate, though almost 2 years have passed since the Controlling Authority passed the orders. Therefore, the order and the certificates have attained finality. 10.7 Therefore, the submission of so-called appeals is of no relevance and does not render any assistance to the case of the petitioner. 11. At this stage it is worthwhile to take into account section 4(1), section 7(2) and section 7(3), which read thus: "4. Payment of gratuity (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,- (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease;" "(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined. (3) 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." 12. According to the said provision, gratuity would be payable on 'termination of service' of an employee either on account of retirement/superannuation or on account of resignation, after completion of minimum service i.e. service for not less than 5 years. 13. According to the said provision, gratuity would be payable on 'termination of service' of an employee either on account of retirement/superannuation or on account of resignation, after completion of minimum service i.e. service for not less than 5 years. 13. Differently put, the employer's obligation to pay gratuity to an employee arises on cessation of service of an employee by way of superannuation/retirement or on submission of resignation after rendering service for 5 years. Within 30 days from the said event (i.e. termination of service), the employer must pay gratuity in accordance with the formula prescribed under section 4(2) of the Act. 14. It is also pertinent to note that the Act imposes obligation (to compute and pay gratuity) on the employer and that, therefore, even if claim/application is not filed it is the employer's obligation to initiate and take steps to compute and pay gratuity on termination of employee. 14.1 So far as the present case is concerned, the eventuality which should occur for attracting Section 4(1) (for raising claim for gratuity), did occur on termination of the service of present respondents, however, the petitioner did not pay gratuity. 15. It is relevant to note that the petitioner employer, so as to wriggle out of its inaction and default or delay in the matter of payment of gratuity to concerned claimants, has tried to take disadvantage of the reference case instituted by the employees (to claim that they should have been continued in service until the date when they attain 60 years of age). 16. The petitioner employer has tried to take shelter under the said proceedings to claim that since the employees raised dispute with regard to their termination, the occasion and obligation to pay gratuity did not arise or the duty cast by the Act to pay gratuity did not ripen into actual obligation to make the payment. 16. The petitioner employer has tried to take shelter under the said proceedings to claim that since the employees raised dispute with regard to their termination, the occasion and obligation to pay gratuity did not arise or the duty cast by the Act to pay gratuity did not ripen into actual obligation to make the payment. 16.1 In this context, it would be profitable at this stage to take into account the provisions under sections 7(4)(a) to 4(e) which read thus: "(4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. (b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.] (c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.] (d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto. (e) As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit - i) to the applicant where he is the employee; or (ii) where the applicant is not the employee, to the d [nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity." 16.2 On conjoint reading of the said provision it emerges that an employer cannot avoid and cannot escape from the obligation to compute and pay/deposit undisputed amount. According to the said provision employer is under statutory obligation to pay or to deposit (with Controlling Authority) undisputed amount even in case where there is dispute between employer and employee in the matter of amount payable towards gratuity. 16.3 Thus, when in present case the petitioner-employer, by its own motion and by its own overt action, actually terminated service of present claimants (on the ground that they attained 58 years of service) the event which gives birth to obligation to pay gratuity, occurred and that, therefore, the employer was obliged to pay or at least deposit undisputed amount of gratuity with the Controlling Authority at the time of 'termination' of present respondents. 16.4 However, in present case, the petitioner employer failed on both counts. The employer, by not paying or depositing at least undisputed amount (i.e. the amount which would be payable to each claimant upto the date when he attained 58 years of age) with the Controlling Authority, failed in its obligation and committed breach of section 7(4)(a) to 4(e) of the Act. 16.5 In this view of the matter also, the petitioner's objection against direction to pay gratuity to each claimant by calculating the amount of gratuity payable upto the date when each claimant attained 58 years of age cannot be entertained and the direction by the Controlling Authority cannot be faulted. 16.6 There is no ground or justification either to hold that the Controlling Authority's decision is erroneous or unsustainable or to permit the petitioner employer to continue to withhold gratuity. Further, the petitioner has, even otherwise, not challenged Controlling Authority's order. 16.6 There is no ground or justification either to hold that the Controlling Authority's decision is erroneous or unsustainable or to permit the petitioner employer to continue to withhold gratuity. Further, the petitioner has, even otherwise, not challenged Controlling Authority's order. 16.7 At least now such justification, even if it was ever available, is not available at this stage and such justification has vanished because the claimants have, by now, crossed even 60 years of age. 17. Under the circumstances, even if it is assumed that in view of pendency of SCA No.1601/2014 and SCA No.1602/2014 the employer may, as of now, withhold gratuity which may be payable to each employee for the period which covers the span from 58 years of age to 60 years of age to each claimant, however, there is no basis, no justification and, above all, no right in law to withhold gratuity which would be payable to superannuated/retired employees upto the date when they attained 58 years of age and came to be relieved from service. The employer's petitioner's action of withholding gratuity payable to each claimant upto the date he attained 58 years of age is not justified and cannot be permitted and cannot be sustained. 18. Further, on the basis of the said parent orders passed by the Controlling Authority, Recovery Certificates are issued which orders as well as Recovery Certificates have also attained finality. 19. Before proceedings further, it is relevant to note that when the company, by its own conscious and overt action, terminated the services of the concerned workmen and relieved them from service, necessary eventuality, required for attracting and applying Section 4(1) came in play on account of the action of the company. Therefore, obligation to pay gratuity arose. 20. However, at that stage, the company did not pay gratuity and it still claims that since the workmen raised dispute and demanded that they should be continued in service till the date they attain 60 years of age they cannot claim gratuity and the obligation/time to actually pay gratuity has not arisen. Therefore, obligation to pay gratuity arose. 20. However, at that stage, the company did not pay gratuity and it still claims that since the workmen raised dispute and demanded that they should be continued in service till the date they attain 60 years of age they cannot claim gratuity and the obligation/time to actually pay gratuity has not arisen. 20.1 However, the company ignores that at the time when they raised the claim (a) they had attained 58 years of age; (b) according to the company 58 years of age is prescribed for superannuation; (c) on that ground the company itself relieved them from service and the company caused 'termination' of their service; (d) the workmen have claimed gratuity only till the date when they attained 58 years of age and not upto 60 years of age; (e) thus, gratuity for disputed period is not even claimed and not granted. 20.2 There is, thus, no reason or justification for (for the employer) not paying gratuity upto the date when the said terminated employees reached 58 years of age. Further, even if extreme situation is presumed then also the employer cannot run away from the obligation to deposit the amount (on that basis) with the authority. There is no escape for the employer petitioner from this situation. 21. Now, it is not in dispute that all respondents have crossed 60 years of age. 22. The petitioner's contention on the ground that the proceedings instituted by the workmen claiming that they should have been continued in service until they attained 60 years of age is not tenable. The said proceedings would not hit the claim application because in the said application, the workmen did not demand that they should be paid gratuity till the date when they attain 60 years of age. 22.1 It was expressly and categorically clarified and declared by the workmen that they have demanded gratuity on the basis of 58 years of age (i.e. till the date they attained 58 years of age). 22.1 It was expressly and categorically clarified and declared by the workmen that they have demanded gratuity on the basis of 58 years of age (i.e. till the date they attained 58 years of age). 22.2 Under the circumstances, their demand for being continued in service upto 60 years or pendency of the said dispute before the learned Labour Court had no relevance and/or bearing on their claim (before the authority) for gratuity upto 58 years of age and said dispute and/or the reference cases before the learned Labour Court cannot be used for obstructing or denying or delaying payment of gratuity to said employees. The said proceeding cannot obstruct even gratuity claim application for the purpose of demanding gratuity till they attained 58 years of age. 22.3 An employer who, on its own motion and by its own overt act, terminated services of the claimants on the premise that they stand relieved on superannuation when they attain 58 years of age, cannot turn back and contend that since the said workman demand that they should be continued in service upto 60 years of age, they cannot demand gratuity unless the said dispute is finally prosecuted and decided. There was no justification for the company to oppose the said gratuity claim application when the company itself claimed that the services of the workmen came to end, on superannuation, when they attained 58 years of age. 22.4 Besides this, as mentioned above, by the time the Controlling Authority passed the orders and/or when the Collector issued the impugned instructions/orders, the claimants had even crossed 60 years of age and that, therefore, now, even otherwise, any ground or objection to stall or to withhold or to oppose the workmen' claim for gratuity till the date they attained 58 years does not survive and cannot be entertained. 23. This leaves behind the petitioner's contention raised on strength of section 22 of the SICA. The said Act is repealed by Act of 2003 (1 of 2004) with effect from 1.12.2016. 23. This leaves behind the petitioner's contention raised on strength of section 22 of the SICA. The said Act is repealed by Act of 2003 (1 of 2004) with effect from 1.12.2016. So far as the petitioner's contention on the ground that the orders passed by the Collector and the notices issued by the Mamlatdar are not maintainable because at the relevant time the company's appeals before BIFR under SICA were pending, is concerned it is relevant to note that the said contention is now not sustainable in light of the fact that the Act is repealed and the protection under Section 22 is not available. 23.1 Even if it is assumed that till the time when the Act came to be repealed, the petitioner establishment was covered under purview of section 22 then also, the said cover or shelter would not be available so far as the adjudication process of gratuity claim applications are concerned. 23.2 The embargo under Section 22 does not extend to the proceedings under the Payment of Gratuity Act and/or process of adjudication of gratuity claim application. Further, even if it is assumed that the recovery certificates could not have been implemented and the process for execution of recovery certificate could not have been commenced in view of section 22 of SICA, even such embargo did not survive after 1.12.2016. Thus, even the said last straw is not available to the petitioner employer so as to refuse the payment of gratuity to the claimants or to further delay the said payment. 23.3 Besides this, in light of the decision of this Court in case of Tribhovanbhai Jerambhai vs. Deputy Executive Engineer, Sub Division, R&B Department and Others, (1998) 2 GLH 1, the proceedings for demanding unpaid gratuity are not hit by embargo under Section 22 of the Sick Industrial Companies Act and that, therefore, neither the proceedings in respect of the gratuity claim application nor the proceedings for issuance of Recovery Certificate are hit by the provisions under the Act and the contention that the authority could not have entertained and adjudicated gratuity claim application and/or application for Recovery Certificate and/or the contention that the Controlling Authority could not have passed the orders in the said application, are not sustainable. For the same reasons, the orders/instructions issued by the Collector to the Mamlatdar and the notices issued by the Collector also cannot declared unsustainable. 24. For the same reasons, the orders/instructions issued by the Collector to the Mamlatdar and the notices issued by the Collector also cannot declared unsustainable. 24. Actually, in absence of challenge against the Controlling Authority's order and in absence of challenge against the Recovery Certificate, there is no justification or basis to entertain the petitioner's objection against the orders/instructions issued by the Collector i.e. the direction to the Mamlatdar to recover the amounts in accordance with the Controlling Authority's order because in face of the said orders the Collector and the Mamlatdar cannot ignore the direction to recover the amount. 24.1 The petitioner employer being aware and conscious about this position (which emerges from the provision under the Act) now raises plea of financial difficulty. 24.2 The said plea has to be recorded only for prompt rejection. It is not worth consideration. The Payment of Gratuity Act is a social welfare legislation. The claim by the workmen for gratuity is not a claim for charity or mercy but it is a claim for their hard earned benefit available upon completion of service and it comes in their hand when the source of their income closes. The amount which the employees receive towards gratuity is support of their life it is monetary support for their survival. Such claim cannot be frustrated or even delayed by permitting the employer to raise unjustified objection, more so when it is the employer who, by its own overt act, relieved the workmen from service. 24.3 On retirement from service, the workmen eagerly await payment of provident fund and gratuity benefits. Their family and their social obligation also heavily depend on the amount that an employee the employee would receive on retirement. Several social responsibilities and obligations are planned and scheduled accordingly i.e. to coincide with the time when the employee would receive retiral benefits. In several cases even debt are incurred by keeping in focus the time and amount which would be paid on retirement. The employees whose services are not pensionable, they heavily depend on the benefit of provident fund and gratuity and such dependence is absolute. Under the circumstances, delay in payment of the said benefit cannot be countenanced, more particularly on unjustified contentions. The employees whose services are not pensionable, they heavily depend on the benefit of provident fund and gratuity and such dependence is absolute. Under the circumstances, delay in payment of the said benefit cannot be countenanced, more particularly on unjustified contentions. 24.4 The difficulties and the plight and the hardships which the employees suffer on account of delay or non-payment of retiral benefits (e.g. gratuity) cannot be compared with the so-called financial crunch of the employer. It is sheer insensitivity on the part of the employer to even raise such plea or defence against the claim of gratuity, that too when almost 6 years have passed since the service of concerned claimants came to end. Because of the employer's actions the workmen are still embroiled in legal process. Under the circumstances, it would be inhumane to consider, even for second, the petitioner's excuse for not paying gratuity for almost 6 years. The said plea must fail. 25. For the reasons above, Special Civil Application Nos.15226/2014, 15256/2014, 8447/2015 and 11790/2015 are not sustainable and do not deserve to be entertained. 26. There is no justification to quash the orders/instructions issued by the Collector to the Mamlatdar to recover the amounts mentioned in the Recovery Certificate and/or to set aside the notices issued by the Mamlatdar for execution of the Recovery Certificate issued by the Controlling Authority. 26.1 The said 4 petitions, therefore, fail and deserve to be rejected and are accordingly rejected. Notice is discharged. 26.2 Now, so far as Special Civil Application No.7108/2015 is concerned, the said petition is filed by one of the concerned workmen. In the said petition, the claimant has prayed, inter alia, that: "5(A) That the Hon'ble Court be pleased to allow this petition and hold that the respondent No.1 District Collector has shown gross negligent approach in discharging of his statutory duties so far as recovery of amount under Recovery Certificate at Annexure-"A" issued by the Learned Controlling Authority, Vadodara is concerned and adequately punishing the respondents No.1 for his negligent approach by fixing liability of Respondent No.1. (B) The Hon'ble Court be pleased to direct Respondent No.1 to immediately recover the amount of Rs. 1,79,003/- along with 10% simple interest from 27.02.2014 till the date of payment as determined by Ld. (B) The Hon'ble Court be pleased to direct Respondent No.1 to immediately recover the amount of Rs. 1,79,003/- along with 10% simple interest from 27.02.2014 till the date of payment as determined by Ld. Controlling Authority, Vadodara and along with penal interest @ 18% with further direction to immediately deposit the amount that may be recovered from respondent No.1 with the Controlling Authority, Vadodara for disbursement to the petitioner." 26.3 The workman has, in the said petition, prayed for direction to the Collector/Mamlatdar to execute the Recovery Certificate without further delay. 26.4 Actually, in view of the fact that the petitions filed by the company against the orders/instructions of the Collector and the notices of the Mamlatdar are dismissed, the Mamlatdar would be obliged to immediately act in furtherance of the Collector's directions. The Collector has already issued instructions/orders. 26.5 However, so as to remove any doubt and also to ensure that further delay in execution of the Recovery Certificate is avoided and arrested, it is clarified and directed that the Collector and the Mamalatdar shall take all necessary steps and action in accordance with law, as may be necessary for executing the Recovery Certificate and shall recover the amount due and payable to the workmen as per the Controlling Authority's orders and as per the Recovery Certificate. 26.6 On recovery of the amount, the amount shall be paid/disbursed to the workmen. 26.7 The said petition, i.e. Special Civil Application No.7108/2015 is accordingly disposed of with said clarification and direction. Orders accordingly. 27. 8 So far as Special Civil Application Nos.15226/2014, 15256/2014, 8447/2015 and 11790/2015 are concerned, Mr.Patel, learned senior counsel for Ms.Raval, learned advocate for the petitioner company submitted that ad-interim relief granted earlier may be continued. In view of the facts and circumstances of the case, more particularly the fact that the claimants/workmen in present case came to be relieved from service somewhere in 2012 or even prior to that i.e. for almost 6 years the claimants have been deprived the benefit of gratuity and that the workmen are awaiting payment of gratuity since more than six years the said request cannot be accepted. Further, in light of the directions issued vide present order in respect of Special Civil Application Nos.15226/2014, 15256/2014, 8447/2015 and 11790/2015, such request cannot be granted. Therefore, the request is rejected.