Calcutta High Court
Dewar'S Garage Ltd vs State Of West Bengal & Ors on 25 April, 2014
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
W. P. No. 102 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
DEWAR'S GARAGE LTD.
Versus
STATE OF WEST BENGAL & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 25th April, 2014.
Appearance :
Mr. Rajesh Gupta, Adv.
Mr. M. Mukherjee, Adv.
... for the petitioner
Mr. S. Mazumder, Adv.
Mr. R. Guhathakurta, Adv.
... for Pvt. respondent
Ms. Chaitali Bhattacharjee, Adv.
... for respondent No. 2.
The Court : This writ application is directed against an order passed by the controlling authority in allowing the respondent no. 3 employee to file an application under section 7 beyond the period of limitation as prescribed under Rule 7 sub Rule 1 of the Payment of Gratuity Rules West Bengal, 1972. In paragraph 6 of the petition the petitioner contended that the petitioner was heard on the aspect of condonation of the delay inasmuch as no copy of the application for condonation of delay was served on the petitioner on 9th October 2012. In the 2 affidavit-in-opposition the respondent employee has disclosed a copy of the said application for condonation of delay which bears the endorsement of the advocate representing the company in the said proceeding. This was categorically stated in paragraph 4 sub paragraph C of the affidavit-in-opposition. In the affidavit-in- reply this paragraph has not been denied. The payment of gratuity is an obligation of the employer. The said Act is a beneficial piece of legislation. The Act does not provide any limitation. The Rules prescribe period of limitation. But keeping in view the beneficial nature of the said legislation, the legislature has used the expression that "the employee shall apply ordinarily within 30 days from the date of gratuity becoming payable in form I to the employer" and permit filing an application beyond the time prescribed under the Rule.
Rule 7 sub rule 5 permits the authority concerned being the controlling authority to accept the application for gratuity after the expiry of period specified under the Rules. If the applicant advances sufficient cause for the delay in preferring his claim no claim for gratuity under the Act shall be invalid, merely because the claimant failed to present his application within the specified period. The purpose and object of the said Act read with the Rules gives a clear impression that keeping in mind the beneficial nature of the said legislation the legislature has 3 permitted the authority concerned to accept an application beyond the specified period of limitation and it has been specifically stated that under the Rule such application shall not be held to be invalid merely because the claimant has failed to present the application within the specified period. The controlling authority keeping in view the nature and purpose of the object of the said legislation has passed an order and has exercised his discretion in favour of the employee.
Under the Act the controlling authority should decide and determine the payment of gratuity. The order allowing an application cannot also prejudice the petitioner since it would be open for the petitioner to contend before the controlling authority that no amount of gratuity is payable to the respondent no.3. Moreover, it appears that a copy of the said application was served upon the petitioner. Accordingly this Court is not inclined to interfere with the order passed by the controlling authority in allowing the application filed by the respondent no. 3 for condonation of delay. The said order is upheld. The writ petition is thus dismissed. However, the controlling authority shall determine the gratuity in accordance with law as expeditiously as possible.
(SOUMEN SEN, J.) SBI