Jammu & Kashmir High Court - Srinagar Bench
Managing Jk Pcc And Another vs Ghulam Mohi-U-Din Shah And Another on 3 December, 2021
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
5
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 278/2015
Reserved on : 25.11.2021
Pronounced on: 03 .12.2021
Managing JK PCC and another
.....petitioner(s)
Through :- Mr. M.A.Chashoo AAG
V/s
Ghulam Mohi-U-Din Shah and another .....Respondent(s)
Through :- Mr. Gul Ayaz, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1 Order dated 16.08.2014 passed by the Controlling Authority under Payment of Gratuity Act, 1972 [„Act of 1972‟], Srinagar in File No. 63-PG titled "Gh. Mohi-u-Din Shah vs. Managing Director, JKPCC Ltd. Srinagar" is subject matter of challenge in this petition filed by the petitioners under Section 226 of the Constitution of India. Vide order impugned dated 16.08.2014, the Controlling Authority under the Act of 1972, has allowed the claim of respondent No.1 (the employee) for payment of balance gratuity to the tune of Rs.89,533 against the petitioners herein. The employee retired on superannuation as Jr. Assistant in the JKPCC Ltd. (the employer) on 30.04.2011 after rendering 27 years service.
2 It was contended by the employee in his application filed before the Controlling Authority, that he, on retirement, became entitled to 2 OWP No. 278/2015 a sum of Rs.3,13,532/-as gratuity, but the JKPCC Ltd-the employer sanctioned only a sum of 2,43,858/- leaving balance of more than Rs.60,000/-outstanding. Having failed to persuade the employer for release of balance of gratuity, the employee filed an application before the Controlling Authority under the Act of 1972. The said application was contested by the employer. In the objections filed by it, it was contended that the employee, on retirement, became entitled to a sum of Rs.3,13,532/- in terms of Rule 5 of the Gratuity Rules of JK PCC and the same was released in his favour after fulfilling all the codal formalities. It was pleaded that respondent No.1-employee retired on superannuation on 30.04.2011 and accepted the gratuity as was paid to him without any protest and, therefore, he was not competent in law to file an application before the Controlling Authority, that too, after more than two years. In essence, the employer took a stand that the employee, in the matter of payment of gratuity, was governed by the Gratuity Rules of JK PCC and not by the Act of 1972 and the Rules framed thereunder. 3 The application of the employee was adjudicated upon by the Controlling Authority and vide order impugned, the Authority allowed the claim of the employee and held him entitled to payment of balance amount gratuity to the tune of Rs.89,533/-. The Controlling Authority considered the explanation tendered by the employee for lodging claim beyond limitation period of 90 days and condoned the same. The Controlling Authority also found the employee governed by the Act of 1972 and the Rules framed under. Relying upon Section 14 of the Act of 1972, the Controlling Authority held that the Act of 1972 had overriding effect on any other legislation, policy, decision or rules of the employer. It is this 3 OWP No. 278/2015 order of the Controlling Authority which is assailed before me in these proceedings.
4 Impugned order is challenged by the employer, inter alia, on the ground that the employer i.e JK PCC Ltd., does not come under the purview of the Act of 1972 and, therefore, the gratuity of its employees is governed by the Gratuity Rules of JK PCC. It is contended that the employee having accepted the appointment in JK PCC Ltd., shall be deemed to have accepted the Rules and the Regulations of JK PCC Ltd., governing his service conditions. It is also contended by Mr. Chashoo, learned AAG that the claim filed by the employee beyond statutory period of 90 days was not properly explained and, therefore, the Controlling Authority was not correct in condoning the same, that too, without giving any reasons.
5 Per contra, it is contended by learned counsel for the employee that the order passed by the Controlling Authority is appealable before the Appellate Authority constituted by the Government and the appeal is required to be preferred within a period of 60 days. The employer, without availing of statutory and equally efficacious remedy, has rushed to this Court by invoking extraordinary writ jurisdiction vested in this Court by Article 226 of the Constitution of India.
6 Having heard learned counsel for the parties and perused the record, I do not find any legal infirmity or invalidity in the impugned order of the Controlling Authority. I am also of the considered view that the employer has not made out a case for exercise of extraordinary writ jurisdiction vested in this Court by Article 226 of the Constitution of India in the face of availability of alternative statutory and equally efficacious remedy available by way of appeal under Section 7(7) of the Act of 1972. It is not 4 OWP No. 278/2015 the case of the petitioners-the employer that the order passed by the Controlling Authority was in violation of principles of natural justice or had violated the fundamental rights of the employer. On this count only, this Court could have dismissed the writ petition, however, since this petition is pending in this Court since the year 2015 and the parties have also argued the matter on merits, I deem it appropriate to put quietus on the controversy.
7 The plea raised by learned counsel for the employer that JK PCC Ltd., is not covered under the Act of 1972, is clearly afterthought. As per own showing of the employer, the provisions of the Act of 1972 have been extended to and adopted by JK PCC Ltd. from time to time. The employee has placed on record a copy of order No.8 of 2007 dated 01.09.2007 which provides for enhancement of retirement gratuity in favour of the employees of JKPCC ltd., under Rule 5 (ii) of Chapter IX of J&K PCC Employees Service Rules and Regulations and in terms of the provisions of the Act of 1972. It may be true that the employer has its own Gratuity Rules, but the employer has made it a point to update its Rules so as to bring them in tune with the Act of 1972. It is, therefore, not available to the employer to contend that the gratuity to its employees is not governed by the Act of 1972. Otherwise also, having regard to Section 1 (3)(b) of the Act of 1972, the said Act applies amongst others to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. In the State of Jammu and as it then was, the term "shop and commercial establishment" was defined in the J&K Shops and Establishment Act, 1966 [„Establishment Act‟].
5OWP No. 278/2015 8 As per Section 2(4) of the Establishment Act, the term "commercial establishment" means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to any business trade or profession and includes:
"(a) an establishment which carries on the business of advertising, commission agency, forwarding or commercial agency, or which is a clerical department of a factory or of any industrial or commercial undertaking;
(b) an insurance company, joint stock company, bank, brokers office and exchange, but does not include factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment".
9 From a reading of Section 1 (3)(b) of the Act of 1972 along with Section 2(4) of Establishment Act, it is crystal clear that JK PCC which undertakes construction activity on behalf of the State clearly falls within the meaning of term "establishment" as used in Section 1(3)(b) of the Act of 1972. The Controlling Authority has, thus, taken a correct view in the matter. I am also at one with the Controlling Authority insofar as it relies upon Section 14 of the Act of 1972 to hold that the Act had overriding effect on any other legislation, policy, order or rules. For facility of reference, Section 14 of the Act of 1972 is reproduced hereunder:
"14. Act to override other enactments, etc.- The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."
10 In view of clear provisions of Section 14 of the Act of 1972, it cannot be contended by the employer that its employees including respondent No.1 herein was governed by the Gratuity Rules of JK PCC Ltd. and not by the provisions of the Act of 19742. Insofar as the plea of 6 OWP No. 278/2015 the employer with regard to condonation of delay is concerned, the Controlling Authority has applied its mind to the facts and circumstances explained by the employee in lodging belated claim and this Court does not see any justification to interfere with the findings of fact returned by the Controlling Authority. Otherwise also, having regard to the object of the Act of 1972 and the beneficent nature of its provisions, the Court ought to consider the delay more liberally.
11 Having found the impugned order not vitiated on any count, particularly the grounds urged by the employer, I find a little error having crept in while calculating the total gratuity payable to the employee. Admittedly, the employee has served the employer for a period of 27 years and his last pay drawn was Rs.20,128/-. In terms of Section 4(2) of the Act of 1972, the employee was entitled to receive gratuity, on superannuation, equivalent to 15 days‟ wages for each completed year of service or part thereof in excess of six months. If that be the principle, the employee was entitled to receive gratuity i.e., 50% of the last pay drawn multiplied by number of completed years of service. Thus, the amount of gratuity would come to Rs.2,71,728/-(Rs.20,128÷2x27). The employee has already received gratuity of Rs.2,43,858/-at the time of his superannuation and, therefore, the balance amount of gratuity outstanding would come to Rs.27,870/- (Rs.2,71,728-Rs.2,43,858). Accordingly, the impugned order, though upheld on merits, is corrected to the aforesaid extent and the employee i.e., respondent No.1 herein is held entitled to balance amount of gratuity of Rs.27,870/- along with interest @ 9% per annum w.e.f 01.06.2011 to 31.07.2014 and from 01.08.2014 till the amount was deposited with the Registry of this Court. Thereafter the employee i.e 7 OWP No. 278/2015 respondent No.1 herein shall be entitled to interest earned on the amount deposited by the Registry of this Court in the shape of FDR.
Registry shall release the aforesaid amount after proper verification/identification in favour of respondent No.1. The Managing Director, JK PCC Ltd. is at liberty to withdraw the excess amount, if any, deposited by him before the Registry.
Record be sent back to the Controlling Authority.
(SANJEEV KUMAR) JUDGE Srinagar 03.12.2021 Sanjeev PS Whether the order is speaking : Yes Whether the order is reportable :Yes/No