Madras High Court
Sri Muthukumaran Institute Of ... vs J.Rajalakshmi on 1 October, 2020
Author: P.D. Audikesavalu
Bench: P.D. Audikesavalu
W.P. No. 3222 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2020
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 3222 of 2019
and
W.M.P. Nos. 3469 and 3472 of 2019
Sri Muthukumaran Institute of Technology,
Represented by Principal,
Chikkarayapuram, Near Mangadu,
Chennai – 600 069. ... Petitioner
-vs-
1. J.Rajalakshmi
2. The Controlling Authority under the Payment of Gratuity Act,
Deputy Commissioner of Labour – I
Chennai – 600 006.
3. State of Tamil Nadu,
Represented by the Additional Chief Secretary to Government,
Labour and Employment Department,
Fort St. George,
Chennai - 600 009.
4. State of Tamil Nadu
Represented by the Secretary to Government,
Law Department,
Fort St. George,
Chennai - 600 009. ... Respondents
(R3 & R4 suo motu impleaded by order dated 14.08.2020
and amended as per order dated 01.10.2020)
1/26
https://www.mhc.tn.gov.in/judis/
W.P. No. 3222 of 2019
Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorarified Mandamus, calling for the records of the Second
Respondent in its Order dated 2.7.2018 in P.G.I.A. No. 29 of 2018, quash the
same and consequentially, direct the Second Respondent to consider the Counter
Affidavit filed by the Petitioner and decide the application on merits after hearing
the arguments.
For Petitioner : Mr. T.Sundar Rajan
For Respondents : Mr. K.S.L.Narain (for R1)
Mr. D.Sathyaraj
Special Government Pleader (for R2 to R4)
ORDER
(through video conference) Heard Mr. T.Sundar Rajan, Learned Counsel for the Petitioner, Mr. K.S.L.Narain, Learned Counsel for the Second Respondent and Mr. D.Sathyaraj, Learned Special Government Pleader appearing for the Second to Fourth Respondents and perused the materials placed on record, apart from the pleadings of the parties.
2/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019
2. The First Respondent, who had been employed as Lecturer in the Computer Science and Engineering Department in the Educational Institution of the Petitioner from 09.07.2001 onwards, claims that she had resigned from service on 18.01.2013 and had made a request in writing for payment of gratuity under Section 7(1) of the Payment of Gratuity Act, 1972 (hereinafter referred to as the 'Act' for short) on 20.07.2016, 23.06.2017 and 25.01.2018 to the Petitioner, who had refused to entertain the same. Thereafter, the First Respondent made an application under Section 7(4) of the Act before the Second Respondent along with a petition in P.G.I.A. No. 29 of 2018 to condone the delay of 1875 days in filing the same. The Petitioner, who had entered appearance on 14.06.2018 in the said proceedings, had sought time for filing Counter-Affidavit in the said petition to condone delay. According to the Petitioner, the Second Respondent had condoned the delay in filing the application for gratuity by order dated 02.07.2018 as no Counter had been filed by the Petitioner till that date. The Petitioner thereafter claims to have made an application on 19.11.2018 to set aside the exparte order in the petition for condoning the delay in filing the application for gratuity, and by order dated 08.01.2019, it was dismissed by the Second 3/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Respondent. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the order dated 02.07.2018 in P.G.I.A. No. 29 of 2018 and to consider the Counter-Affidavit filed by the Petitioner and consequentially decide the matter on merits.
3. It must, at once, be pointed out here that when the Act came into force on 16.09.1972, an employee could make an application for payment of gratuity under the Explanation to Section 7(4)(a) of the Act only after requiring the employer to deposit the gratuity amount and the employer has failed to do so. In that backdrop, Rule 10 of the Tamil Nadu Payment of Gratuity Rules, 1973 (hereinafter referred to as the 'Rules' for short), which were made in the exercise of powers under Section 15(1) of the Act, provides as follows:-
“10. Application to controlling authority for direction:-
(1) If an employer:-
(i) refuses to accept a nomination or to entertain an application
sought to be filed under rule 7, or
(ii) issues a notice under sub-rule (1) of rule 8 either specifying an amount of gratuity which is considered by the applicant 4/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 less than what is payable or rejecting eligibility to payment of gratuity, or
(iii) having received an application under rule 7 fails to issue any notice as required under rule 8 within the time specified therein, the claimant employee, nominee or legal heir, as the case may be, may, within ninety days of the occurrence of the cause for the application, apply in Form ‘N’ to the controlling authority for issuing a direction under sub-section (4) of section 7 with as many extra copies as are the opposite parties:
Provided that the controlling authority may accept any application under this sub-rule, on sufficient cause being shown by the applicant, after the expiry of the specified period.
(2) Application under sub-rule (1) and other documents relevant to such an application shall be presented in person to the controlling authority or shall be sent by registered post acknowledgement due.” However, amendments have been made by Act 25 of 1984 with effect from 01.07.1984 and Act 22 of 1987 with effect from 01.10.1987 by which the Act 5/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 provides in Section 7(4)(b) that an employee may straight away make an application for payment of gratuity to the Controlling Authority for deciding the dispute arising out of the matter specified in clause (a) thereto, which includes non-payment of gratuity by the employer within the time limit after it had fallen due. In order to have a better understanding of the effect of those statutory amendments, a comparative study may be made to the provisions of clause (1) to (4) of Section 7 of the Act as it stood at the time of commencement of the Act and the subsequent amendments made in the self-explanatory tabular statement below:-
Provisions of Section 7 as it stood at the time Provisions of Section 7 after the amendment of commencement of the Act on 16.09.1972 made by Act 22 of 1987 with effect from 01.10.1987
7. Determination of the amount of 7. Determination of the amount of Gratuity:- Gratuity:-
(1) A person who is eligible for payment of (1) A person who is eligible for payment of gratuity under this Act or any person gratuity under this Act or any person authorised, in writing, to act on his behalf shall authorised, in writing, to act on his behalf shall send a written application to the employer, send a written application to the employer, within such time and in such form, as may be within such time and in such form, as may be prescribed, for payment of such gratuity. prescribed, for payment of such gratuity. (2) As soon as gratuity becomes payable, (2) As soon as gratuity becomes payable, the employer shall, whether an application the employer shall, whether an application referred to in sub-section (1) has been made or referred to in sub-section (1) has been made or 6/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Provisions of Section 7 as it stood at the time Provisions of Section 7 after the amendment of commencement of the Act on 16.09.1972 made by Act 22 of 1987 with effect from 01.10.1987 not, determine the amount of gratuity and give not, determine the amount of gratuity and give notice in writing to the person to whom the notice in writing to the person to whom the gratuity is payable and also to the Controlling gratuity is payable and also to the Controlling Authority specifying the amount gratuity so Authority specifying the amount gratuity so determined. determined.
(3) The employer shall arrange to pay the (3) The employer shall arrange to pay the amount of gratuity, within such time as may be amount of gratuity within thirty days from the prescribed, to the person to whom the gratuity date it becomes payable to the person to whom is payable. the gratuity is payable.
(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 7/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Provisions of Section 7 as it stood at the time Provisions of Section 7 after the amendment of commencement of the Act on 16.09.1972 made by Act 22 of 1987 with effect from 01.10.1987 Controlling Authority for the delayed payment on this ground.
(4) (a) If there is any dispute as to the amount (4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this of gratuity payable to an employee under this Act or as to the admissibility of any claim of, Act or as to the admissibility of any claim of, or in relation to, an employee for payment of or in relation to, an employee for payment of gratuity, or as to the person entitled to receive gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the gratuity, the employer shall deposit with the Controlling Authority such amount as he the Controlling Authority such amount as he admits to be payable by him as gratuity. admits to be payable by him as gratuity. Explanation:- Where there is a dispute with (b) Where there is a dispute with regard to regard to any matter or matters specified in this any matter or matters specified in Clause (a), clause the employee may make an application the employer or employee or any other person to the Controlling Authority for taking such raising the dispute may make an application to action as is specified in clause (b). the Controlling Authority for deciding the dispute.
(b) The Controlling Authority shall, after (c) The Controlling Authority shall, after due inquiry and after giving the parties to the due inquiry and after giving the parties to the dispute a reasonable opportunity of being dispute a reasonable opportunity of being heard, determine the amount of gratuity heard, determine the matter or matters in payable to an employee, and if as a result of dispute and, if, as a result of such inquiry any such inquiry any amount in excess of the amount is found to be payable to the employee, amount deposited by the employer is found to the Controlling Authority shall direct the 8/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Provisions of Section 7 as it stood at the time Provisions of Section 7 after the amendment of commencement of the Act on 16.09.1972 made by Act 22 of 1987 with effect from 01.10.1987 be payable, the Controlling Authority shall employer to pay such amount or, as the case direct the employer to pay such amount as is in may be, such amount as reduced by the amount excess of the amount deposited by him. already deposited by the employer.
(c) The Controlling Authority shall pay the (d) The Controlling Authority shall pay the amount deposited, including the excess amount deposited, including the excess amount, if any, deposited by the employer, to amount, if any, deposited by the employer, to the person entitled thereto. the person entitled thereto.
(d) As soon as may be after a deposit is (e) As soon as may be after a deposit is made under Clause (a), the Controlling made under Clause (a), the Controlling Authority shall pay the amount of the deposit- Authority shall pay the amount of the deposit-
(i) to the applicant where he is the (i) to the applicant where he is the
employee; or employee; or
(ii) where the applicant is not the (ii) where the applicant is not the
employee, to the nominee or heir of the employee, to the nominee or, as the
employee if the Controlling Authority case may be, the guardian of such
is satisfied that there is no dispute as to nominee or heir of the employee if the
the right of the applicant to receive the Controlling Authority is satisfied that
amount of gratuity. there is no dispute as to the right of the
applicant to receive the amount of
gratuity.
It could be noticed from reading together of clauses (2) and (3) of Section 7 of the Act that the employer has to make payment of the admitted amount of gratuity to 9/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 the employee within a period of thirty days from the date on which it falls due, irrespective of whether the employee has made such claim. Further Section 7(3-A) of the Act fastens liability on the employer to pay simple interest thereon 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. When the employer fails to make or there is shortfall in payment of gratuity, the employee is entitled to make an application for payment of gratuity to the Controlling Authority under Section 7(4)(b) of the Act. The scheme of the Act as per the amended provisions clearly reveal that there is no period of limitation restricting the right of the employee to make such application to the Controlling Authority.
4. The legal position is well settled that a provision for limitation cannot be made by way of subordinate legislation when the parent enactment does not contemplate the same as held by the Hon'ble Supreme Court of India in Bharat Barrel and Drum Mfg. Co. Ltd., v. ESI Corpn., [(1971) 2 SCC 860]. Further, it is trite law that the subordinate legislation which is inconsistent with the parent enactment would be ultra vires and cannot have any effect. 10/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019
5. It becomes evident that after the amendments made to the Act with effect from 01.10.1987, the period of limitation prescribed in Rule 10 of the Rules is in derogation of clauses (2), (3), (3-A) and (4) of Section 7 of the Act. As a consequence thereof, it would necessarily follow that though the First Respondent condoned the delay in filing the application for payment of gratuity in terms of Rule 10 of the Rules, resort to that procedure was not actually warranted. This view is fortified by the decision of this Court in M.Vairamuthu -vs- Regional Labour Commissioner (Order dated 21.10.2010 in W.P. (MD) No. 10377 of 2007 etc., batch), where it has been held as follows:-
“7. Though initially the IRE Limited wanted to contend delay and laches on the part of the workmen in moving the authority under the Payment of Gratuity Act, however, no serious submissions were made on that score. Hence it is unnecessary to deal with the issue elaborately except when dealing with W.P.(MD)No.10377 of 2007. Even otherwise, this court has already held that if there is unpaid gratuity, the workmen can move the authority and the prescription of limitation by rules is beyond the power conferred on the rule making authority.” 11/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019
6. The Bombay High Court in H.Jayarama Shetty -vs- Sangli Bank Ltd., [(2005) 3 LLJ 637 (Bom)] has elaborately discussed this aspect of the matter as follows:-
“5. The second reason which weighed with the Appellate Authority was that the claim of the Petitioner for payment of gratuity was barred by limitation. The Petitioner submitted in his application that the breach on the part of the employer was of a continuous and recurring nature. The Petitioner, however, submitted that if the authority came to the conclusion that there was a delay, he would crave leave to file a separate application for the condonation. Counsel for the Petitioner has made a statement before the Court on instructions that there was no separate application for condonation.
6. Section 4 of the Payment of Gratuity Act, 1972 provides that 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, on superannuation or, as the case may be, on retirement, resignation, death or disablement. Sub-section (1) of 12/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Section 7 provides that a person who is eligible for the payment of gratuity shall send a written application to the employer, within such time and in such form, as may be prescribed, for the payment of gratuity. Sub-section (2), however, lays down that irrespective of whether an application as provided in sub-section (1) has been made or not, the employer shall as soon as gratuity becomes payable, determine the amount of gratuity and give a notice in writing to the person to whom the gratuity is payable and to the Controlling Authority specifying the amount of gratuity so determined.
Subsections (3) and (3A) of Section 7 were substituted by Amending Act 22 of 1987 with effect from 1st October 1987. Sub-section (3) provides that the employer shall arrange to pay the amount of gratuity within thirty days from the date on which it becomes payable to the person to whom gratuity is payable. Sub-section (3A) stipulates that if the amount of gratuity that is payable is not paid by the employer as specified in sub-section (3), the employer shall pay simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long term 13/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 deposits. No interest is, however, payable if the delay in payment is due to the fault of the employee and the employer has obtained permission in writing from the Controlling Authority for delayed payment on that ground. Payment of interest on delayed payment of gratuity is the statutory norm and even if delay is due to the employee, the employer has to obtain permission of the Controlling Authority in writing on this ground without which gratuity must carry statutory interest. Sub-section (4)(a) then provides that if there is any dispute as to the amount of gratuity payable to an employee under the 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 must deposit with the Controlling Authority such amount as he admits to be payable. Sub-section (4)(b) provides that upon there being a dispute with regard to any matter specified in clause (4)(a), the employer or employee or any other person raising the dispute may make an application to the Controlling Authority for deciding the dispute. The Controlling 14/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Authority has thereupon been empowered to adjudicate upon the dispute.
7. These provisions of the Payment of Gratuity Act, 1972 provide a statutory elucidation of the nature of gratuity as a terminal benefit. Under Section 4 of the Act, payment of gratuity to an employee is a mandate of the statute, on the termination of employment after continuous service for not less than five years. This mandate is subject to the limited exception which is carved out in sub-section (6) of Section 4 to which a reference would be made shortly hereafter. The employer is under a mandate and an obligation to determine the amount of gratuity that is payable as soon as gratuity becomes payable. The employer is under an obligation to arrange for the payment of the amount of gratuity within 30 days from the date on which it becomes payable to the person to whom is payable. After the amendment of 1987, a statutory provision has been made for the payment of interest. The employer can avoid that obligation to pay interest only if the delay in payment is due to a fault of the employee and if employer is granted permission in writing by the Controlling 15/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Authority for the delayed payment on that ground. These provisions emphasise that the determination of the amount and the payment of gratuity is the obligation of the employer. The employer has to make a determination of the gratuity which is payable whether or not an application has been made by the employee. The employer has to arrange payment.
8. These provisions have been interpreted by the Supreme Court in H. Gangahanume Gowda -vs- Karnataka Agro Industries Corpn Ltd., [2003 I CLR 705], where the Court held as follows:
"From the provisions made in Section 7, a clear command can be seen mandating the employer to pay the gratuity within the specified time and to pay interest on the delayed payment of gratuity. No discretion is available to exempt or relieve the employer from payment of gratuity with or without interest as the case may be. ... Payment of gratuity with or without interest as the case may be does not lie in the domain of discretion but it is a statutory compulsion. Specific benefits 16/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 expressly given in a social beneficial legislation cannot be ordinarily denied."
The Supreme Court held that in view of the clear mandate of Section 7, no residual discretion vested in the High Court to relieve the obligation imposed on the employer of paying interest on account of the delayed payment of gratuity.
9. On behalf of the Respondent, however, reliance was sought to be placed on the rules framed under the Payment of Gratuity Act, 1972. These Rules, it must be noted at the outset, were framed prior to the Amending Acts of 1984 and 1987. The Payment of Gratuity Act, 1972, it may be noted, has made no provision for a specified period for the submission of an application to the Controlling Authority in Section 7(4)(b) of the Act. As contradistinguished from this, Section 7(7) provides for a specific period of limitation of sixty days for preferring an appeal to the appropriate Government against the decision of the Controlling Authority under Section 7(4). In Sitaram -vs- M.N.Nagrashana (AIR 1960 SC 260), the Supreme Court considered Section 10 of the Workmen's Compensation Act 17/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 which provided a period of limitation to make a claim for compensation to the Commissioner but empowered the latter to condone delay for sufficient cause. This provision of the Act was held by the Supreme Court to be similar to Section 5 of the Limitation Act and the Court held that the explanation must cover the whole period of delay. In Gurunath Vithal Tamse -vs- National Textile Corporation [2002 I CLR 809] this Court held that significantly, the legislature had advisedly not specified any particular period of limitation for moving the Controlling Authority under the Payment of Gratuity Act, 1972. But the submission before the Court now on behalf of the the Respondent, is that the limitation which has been provided for in Rules 7 and 10 of the Rules framed under the Payment of Gratuity Act, 1972 was not brought to the attention of the Court in that case. Before dealing with this submission on first principle, it would be necessary to note that at least three High Courts have had occasion to consider the question. The Delhi High Court, in M.C.D. -vs- Nand Kishore [2003 (97) FLR 158], dealt with the submission that the Controlling Authority had not taken into 18/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 consideration the delay of the employee in filing an application under the Payment of Gratuity Act, 1972. The Delhi High Court held that "the grievance of the appellant is misconceived as the non- payment of gratuity due to the Respondent was a continuing wrong and there was no question of any delay in approaching the Controlling Authority. A Learned Single Judge of the Kerala High Court in Neelakandan -vs- State of Kerala [2001 II CLR 448] adverted to the provisions of Section 7 of the Act as amended and held that while Rule 7 of the Gratuity Rules provides that an application be filed within a prescribed time, these provisions under the Rules "cannot of course, be taken as over reaching the provision of Section 7(2) of the Act". The Court held that perhaps the impact of the Amending Acts of 1984 and 1987 had not been taken notice of by the rule making body. Upon the amendment of Section 7, it has now unambiguously been laid down that an employer has a duty to pay gratuity whether or not an application is filed. The Payment of Gratuity Act is a piece of beneficial legislation and a liberal interpretation would have to be adopted since an employee, it was 19/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 held, may not at times be aware of his rights. The Act imposes an obligation on the employer and it would not be open to the employer to benefit from a delay in making an application for the payment of gratuity. The Karnataka High Court in General Secretary, Vokkaligara Sangha, Bangalore -vs- R. Chandramouli [2002 II CLR 1070] noted that Rule 7(5) permits the entertainment of the applications for payment of gratuity after the expiry of the period specified and claim shall not be invalid merely because the claimant failed to present the application within the specified period.
10. The Rules framed under the Payment of Gratuity Act, 1972 provide for two separate periods of time in relation to the making of an application. The first under Rule 7 is an application to the employer within 30 days from the date on which gratuity becomes payable. Rule 7(5), however, provides that an application for payment of gratuity filed after the expiry of the period specified shall also be entertained by the employer if the applicant adduces sufficient cause for delay and no claim for gratuity shall be invalid merely because the claimant failed to present his application within 20/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 the specified period. This must be in a juxtaposed with Section 7(2) which requires the employer to make a determination of gratuity payable and to furnish a notice to the employee and to the Controlling Authority as soon as gratuity becomes payable whether or not an application under Section 7(1) has been made. Clearly therefore, the employer cannot set up limitation as a defence on the ground that the application to him was not presented within thirty days. The clear answer to such a defence, if it is set up is that the employer is obliged to determine and make arrangement to pay gratuity whether or not an application is made. The second time period that is prescribed is under Rule 10. Rule 10 inter alia provides a period of 90 days for making an application before the Controlling Authority upon the employer failing to issue a notice as required under Rule 8 upon the receipt of an application from the employee under Rule 7. The delay under Rule 10 can be condoned by the Controlling Authority on sufficient cause being shown.
11. The rules which were framed in 1972 must be read in a manner which is consistent with the statutory provisions of Section 7 21/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 particularly after the amendments that were introduced by Amending Act 25 of 1984 (with effect from 1st April 1984) and by Amending Act 22 of 1987 (with effect from 1st October 1987). The provisions of Section 7 emphasise that the obligation is that of the employer to determine and to make arrangements for the payment of gratuity and upon his failure to do so, to pay interest at the rate which is statutorily prescribed. Even if the period that is prescribed in the Rules is taken into consideration, the Rules themselves lay down that the delay on the part of the employer, if any, can be condoned if sufficient cause is shown. A breach of the employer to comply with his obligation under section 7 provides a recurring and continuous cause of action. The Act is a piece of social welfare legislation and the employer cannot be permitted by reason of his own default in complying with his obligation to defeat the just entitlement of the employee. Finally, it may be noted that the employer has to determine and pay gratuity whether or not an application is filed to him. The filing of an application before the employer is not a condition precedent. Rule 7 makes procedural provisions for such an 22/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 application. On receipt of an application under Rule 7, the employer has to issue a notice under Rule 8 either admitting the claim or to specify the reasons why he holds the claim inadmissible. It is thereafter that time is prescribed in Rule 10 for an application to the Controlling Authority. The making of an application under Rule 7 therefore invokes a chain of events in Rules 8 and 10. Once the making of an application to the employer is not mandatory under the provisions of Section 7(2) of the substantive provisions of the act, the limitation under the Rules which is triggered upon the filing of the application under Rule 7 can obviously not defeat the claim of the employee.” This Court is in agreement with the aforesaid views expressed.
7. At the same time, it also requires to be mentioned here that in an earlier decision in Madura Coats Ltd., -vs- Assistant Commissioner of Labour [(1993) 3 LLJ 923 Mad], it had been held that an application to condone delay would have to be first decided before the main application for gratuity is taken up for hearing and the said view taken has been approved in M.Devarajulu -vs- Assistant 23/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 Commissioner of Labour [(1995) 1 LLJ 348 Mad] by the Division Bench of this Court. However, on a perusal of the said decisions, it is evident that the apparent inconsistency of Rule 10 of the Rules with Section 7 of the Act after the amendments made to the Act with effect from 01.10.1987 had neither been raised nor brought to the notice of the Court while deciding those cases. It is needless to recapitulate in this context that a precedent can be an authority only for what has been actually decided and not what may logically flow from it, as explained by the Constitution Bench of the Hon'ble Supreme Court of India in State of Orissa -vs- Sudhansu Sekhar Misra (AIR 1968 SC 647).
8. In view of the foregoing discussion, this Court does not find any justification to interfere with the impugned order. The matter shall be listed for hearing before the Second Respondent on 17.02.2021, and the Petitioner and the First Respondent shall appear through their respective Counsel on that date, and the Petitioner shall file its Counter-Affidavit on the merits of the claim in the application for gratuity filed by the First Respondent without fail. If the Second Respondent is not in a position to take up the matter for hearing on that date, it shall inform to all parties concerned of the date of hearing to which it is adjourned 24/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 in the prescribed manner. The Second Respondent shall afford full opportunity of hearing to all parties concerned following the prescribed procedure in consonance with the principles of natural justice and pass reasoned orders dealing with each of the contentions raised by them on merits and in accordance with law.
9. In the result, the Writ Petition is dismissed with the aforesaid clarifications. Consequently, the connected Miscellaneous Petitions are closed. No costs.
01.10.2020 vjt/kv Index: Yes Note: Issue order copy by 11.01.2020.
To
1. The Controlling Authority under the Payment of Gratuity Act, Deputy Commissioner of Labour – I, Chennai – 600 006.
2. The Additional Chief Secretary to Government, Labour and Employment Department, Secretariat, Fort St. George, Chennai - 600 009.
25/26 https://www.mhc.tn.gov.in/judis/ W.P. No. 3222 of 2019 P.D. AUDIKESAVALU, J.
vjt/kv
3. The Secretary to Government, Law Department, Secretariat, Fort St. George, Chennai - 600 009.
Copy to
1. Sri Muthukumaran Institute of Technology, Represented by Principal, Chikkarayapuram, Near Mangadu, Chennai – 600 069.
W.P. No. 3222 of 2019
2. J. Rajalakshmi W/o. M.P. Lakshman Prakash, No. 44, Plot No. 27, Priya Nagar II, Urapakkam, Kancheepuram District - 603 210.
01.10.2020 26/26 https://www.mhc.tn.gov.in/judis/