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2020 DIGILAW 634 (JHR)

Ador Welding Limited v. State of Jharkhand

2020-06-22

S.N.PATHAK

body2020
JUDGMENT : In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing. Concerned lawyers have no objection with regard to the proceeding, which has been held through Video Conferencing today at 10:30 A.M. onwards. They have no complaint in respect to the audio and video clarity and quality. 2. Petitioner has approached this Court with a prayer for quashing of the Case No. 02/GA/2018 instituted by respondent No.3 against the petitioner pending in the Court of learned Deputy Labour Commissioner cum Controlling Authority, Payment of Gratuity Act, 1972 (Respondent No.2) for payment of gratuity in light of the judgment dated 12.04.2016 rendered by the Hon’ble Supreme Court of India in Civil Appeal No 4240 of 2016 (Arising out of SLP (C) No. 20801/2012. 3. Shorn of unnecessary details, the case of the petitioner is that the respondent No.3 was initially appointed as Welding Demonstrator on 06.04.1984 in Jamshedpur Area Office. Subsequently, he was promoted as Sales Representative w.e.f. 01.04.1985 and again he was promoted as Sales Engineer w.e.f. 01.04.1987 and during that time he was holding the post of Assistant Manager at Jamshedpur Area Office and discharged the duties of Managerial and Administrative nature. Oftenly he, in absence of Area Business Manager, used to hold office as In-charge Area Business Manager, which was top most position of the Jamshedpur Area Office, commonly known as Jamshedpur Unit, a controlling unit of Bihar and Orissa which had maximum number of 17 employees. On 09.05.1994, the respondent No.3 had tendered his resignation from his service but later on, he was allowed to withdraw the letter of resignation on promise being given that he will improve his efficiency. However, when it was found that there is no improvement in his efficienty, his services were terminated on 15.2.1995 as per the Rules and Contract of the Employment with one month’s salary in lieu of notice, which was sent to the complainant through cheque dated 28.02.1995 and for whatever, the respondent No.3 was entitled, that was paid by the petitioner through cheque towards full and final settlement of the dues. It is further the case of the petitioner-Management that the respondent No.3 after being terminated from his services by the petitioner-Management and also duly accepted the legally admissible dues, filed a complaint under Section 26 (2) read with Rule 21 of the Bihar Shops & Establishment Act, 1953, which was registered as B.S.E. Case No. 5/1995 before the learned Presiding Officer, Labour Court, Jamshedpur, claiming his termination of service to be declared arbitrary, illegal and further prayed for reinstatement in the services. It has been admitted that a cheque of Rs.13,967.86/- was received, but that had been deposited in the petitioner’s account. It is further the case of the petitioner that after hearing the respondent No.3 and petitioner-Management, learned Presiding Officer, Labour Court, Jamshedpur allowed the aforesaid case vide its judgment dated 29.11.2006 and termination order dated 15.02.1995 was set aside and petitioner was directed to reinstate the complainant with continuity in service and payment of 25 % back wages withing 60 days failing which the complainant would be entitled to realize the same through process of the Court with 9 % interest per annum. Aggrieved by the same, the petitioner-Management filed a writ petition being W.P.(L) No.856 of 2007 before this Court and this Court vide its order dated 16.04.2009 dismissed the same. Against the same, the petitioner-Management preferred LPA before Division Bench of this Court being LPA No.234 of 2009, which was allowed by the Hon’ble Division Bench of this Court and order dated 16.05.2009 passed by the learned Single Judge in W.P.(L) No. 856 of 2007 was set aside. Aggrieved by the same, the respondent No.3 preferred an appeal before the Hon’ble Supreme Court vide Civil Appeal No.4240 of 2016 (arising out of SLP (C) No.20801 /2012) and Hon’ble Supreme Court vide its order dated 12.04.2016 allowed the said Appeal with an observation & direction that ..Looking at the facts and circumstances of case, in our opinion, it would be just and proper if the appellant is paid a sum of Rs.2 lakhs in full and final settlement of the dispute which is the subject matter of the appeal. After getting the same amount, the appellant shall not have any right against the employer. The said amount shall be paid to the appellant within a period of four weeks from today. The impugned judgment is modified to the extent above. 4. After getting the same amount, the appellant shall not have any right against the employer. The said amount shall be paid to the appellant within a period of four weeks from today. The impugned judgment is modified to the extent above. 4. Pursuant to the order of Hon’ble Supreme Court passed in aforesaid appeal, the petitioner-Management paid a sum of Rs.2 lakhs to the respondent No.3 vide Cheque No. 895975 dated 03.05.2016 drawn on HDFC Bank, Maneckji Wadia Bldg, Ground Floor, Nanik Motwani Marg, Fort, Mumbai and respondent No.3 through its lawyer vide acknowledgement dated 06.07.2016 confirmed the receipt of Cheque dated 03.05.2016. Surprisingly, the respondent No.3 after almost 2 years from the date of passing the judgment of Hon’ble Supreme Court in Civil Appeal No. 4240 of 2016, filed a case bearing No. 2/G.A/2018 before the respondent No.2, claiming the gratuity amount on the basis of illegal termination of service. Accordingly, notice was issued to the petitioner by respondent No.2. Hence, this writ petitioner has been preferred. 5. Mr. Rahul Saboo, learned counsel appearing for the petitioner-Management, submits that the respondent No.3 concealed the material facts and has not come with the clean hands before the respondent No.2 as the matter has been set at rest by the Hon’ble Apex Court. The respondent No.3 has tried to mislead respondent No.2 stating that Rs.2 lakhs awarded as compensation by Hon’ble Apex Court, by way of final settlement has not been paid by the petitioner, which is totally false statement as same has already been paid to the respondent No.3. He further submits that initiation of proceedings by the respondent No.3 against the petitioner, by claiming gratuity suffers from malice in law as there was no sufficient reason available with respondent No.3 to raise this dispute pertaining to gratuity before the respondent No.2 despite the fact that entire dispute has been settled before the Hon’ble Apex Court. He further submits that initiation of the proceedings against the petitioner is without any base and is in the teeth of the judgment of Hon’ble Apex Court passed in Civil Appeal No.4240 of 2016 and as such, Case No. 02/GA /2018 filed before respondent No.3 is not maintainable. 6. Mr. He further submits that initiation of the proceedings against the petitioner is without any base and is in the teeth of the judgment of Hon’ble Apex Court passed in Civil Appeal No.4240 of 2016 and as such, Case No. 02/GA /2018 filed before respondent No.3 is not maintainable. 6. Mr. Sandeep Verma, learned counsel appearing for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that this writ petition is not maintainable as the present writ petition has been filed with mala-fide intention to grab the Gratuity amount of respondent No.3. The payment of Gratuity is all along separate right created in favour of an employee by virtue of his long service rendered in favour of his employer and the same is always payable at the time of separation of employee. 7. Mr. Shankar Lal Agrawal, learned counsel appearing on behalf of the respondent No.3 vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioner was an employee of the petitioner-Management and is entitled to receive payment of gratuity under Section 4 of the Payment of Gratuity Act, 1972 on account of his illegal termination of service on 15.02.1995 after completion of about 16 years of continuous service. He further submits that the Hon’ble Supreme Court has directed to pay the respondent No.3 a sum of Rs. 2 lakhs in full and final settlement of the dispute, which is the subject matter of the appeal, but that does not include the Provident fund and Gratuity and as such, applicant is entitled for the Gratuity amount. 8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the petitioner-Management has rushed to this Court while the matter is pending before the Court of Deputy Labour Commissioner-cum-Controlling Authority, Jamshedpur and as such, matter is remitted back to the concerned respondent i.e. respondent No.2. As the notices have already been issued to the petitioner-Management, the parties are directed to appear before the concerned authorities and after appearance and after hearing the parties, the concerned authority shall pass orders, in accordance with law, taking into consideration the order passed by the Hon’ble Supreme Court in Civil Appeal No.4240/2016 vide its order dated 12.04.2016, preferably within a period of three months from appearance of the parties. Parties are at liberty to raise their grievances before the concerned authorities. 9. With the aforesaid observation and direction, instant writ petition stands disposed of. 10. As a sequel to the disposal of the case, interim order dated 29.01.2019 stands vacated.