Punjab-Haryana High Court
Mehtani K.K. vs State Of Haryana And Ors. on 9 February, 2005
Equivalent citations: (2005)IIILLJ832P&H
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The petitioner was appointed on November 23 1973, as technical hand by respondent No. 3 on a monthly wages of Rs. 750. He worked continuously till May 8, 1981. On that date, his services were illegally terminated by respondent No. 3. It has been averred that no domestic enquiry was ever held nor any opportunity of being heard was granted. The aforestated order was passed in complete violation of the provisions of the Industrial Disputes Act, 1947. The petitioner sought reference which was granted and the matter was directed to be adjudicated upon by the Industrial Tribunal. Upon the pleadings of the parties, the issues were framed and the parties led documentary as well as ocular evidence. Upon the perusal of the evidence and taking into consideration the pleadings of the parties, the Tribunal made an award on May 18, 1985. A categoric observation has been made that no complaint was made against the petitioner regarding the allegations pertaining to the period prior to the termination of the services, nor the workman was charge-sheeted or any enquiry was held against his alleged mischief. However, it had been held that the cumulative effect of the evidence brought on record is that the relations between the complainant and the management are strained and that they have no liking for each other: Resultantly, the Tribunal refrained itself from granting the reinstatement but, the order of termination had been set aside. In the facts and circumstances of the case, the Tribunal awarded compensation to the extent of seven years wages which were being drawn by the workman before his services had been terminated on May 8, 1981. The relevant excerpt of the award reads as under:
"xxx xxx xxx No complaint was made in writing against the claimant regarding the allegations relating to the period prior to the termination of the service of the claimant nor the claimant was charge-sheeted nor any enquiry was held against his alleged misconduct. Consequently the allegations cannot be held to have been proved because the alleged incidents were not recorded in writing and the claimant was not given an opportunity to explain these matters nor any charge-sheet was framed against him nor any enquiry was held by the management. From the evidence, it is however, apparent that the relations between the claimant and the management are strained and they have no liking for each other. Under these circumstances, the ends of justice would be met if the order of termination is set aside, and instead of reinstatement, the claimant is awarded compensation to the extent of seven years wages which he was drawing immediately before terminating his service on May 8, 1981. The award is passed accordingly.
(Sd.) R.N. Batra, Presiding Officer, Industrial Tribunal, Haryana, Faridabad."
Dated May 18, 1985.
2. The award was published in the Haryana Government Gazette, dated August 6, 1985, and that the same became effective and enforceable on September 5, 1985.
3. The petitioner applied for the payment of gratuity vide application, dated January 30, 1986 after the same had been refused by respondent No. 3, before the Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as the Act). Upon the pleadings of the parties, the issues had been framed and that the parties led documentary as well as ocular evidence. The controlling authority placed reliance upon the definition of "employee" as defined under Section 2(e) of the Act. It has been categorically held that the petitioner was getting monthly wages which were more than Rs. 1,600 and, therefore, was not entitled to the payment of gratuity. It has also been observed that the petitioner had staked his entire claim before the trial Court and no such application had been filed for claiming the gratuity after the date of termination of services, i.e. May 8, 1981. Thus, the application having been belatedly filed i.e. after five years, the amount is not claimable. It has also been observed that the respondents have disclosed that the wages of seven years as granted by the Labour Tribunal stand paid to the petitioner, which had been granted by way of compensation for not having been granted the relief of reinstatement. The cumulative effect of the findings retained by the Controlling Authority is that the application filed by the petitioner was dismissed vide order, dated December 28, 1987.
4. The petitioner was dissatisfied with the aforestated order and filed the statutory appeal before the Appellate Authority. The appellate authority reconsidered the matter and affirmed the order of the controlling authority by dismissing the appeal vide order, dated July 1, 1988. A categoric observation has been made that the date of termination of the services of the petitioner is May 8, 1981 and on that date he was drawing a salary of Rs. 1180, therefore, does not fall within the beneficial status grantable under the Act.
5. The petitioner being dissatisfied has filed the present petition impugning the order of the controlling authority, copy Annexure P4 and also the appellate authority, copy Annexure P7. Respondent No. 3 has contested the claim of the petitioner by way of filing counter affidavit, dated March 17, 1991.
6. Learned Counsel for the petitioner has argued that the authorities under the Act have fallen into error in declining the relief to the petitioner in regard to the payment of gratuity payable under the Act. Further contends that the controlling authority has placed reliance upon the definition of the word "employee" as given under Section 2(e) of the Act by erroneously holding that the services of the workman were terminated with effect from May 8, 1981, whereas the perusal of the award of the Tribunal shows that the order of termination, dated May 8, 1981, was set aside but instead of granting reinstatement the petitioner was awarded compensation to the extent of seven years wages meaning thereby that compensation in terms of money was granted by holding that the order of termination is illegal. It would necessarily mean that the petitioner shall be taken to be in service upto May 18, 1985. It is obvious that no order of termination was ever passed by respondent No. 3 after the making of the award by the Industrial Tribunal and at the same time the order of termination, dated May 8, 1981, stood wiped out. The effect thereof would be that there was no termination as on May 8, 1981 and upto May 18, 1985. If this inference is drawn, the definition of "employee" as amended with effect from July 1, 1984, would be applicable in the case of the petitioner. It shall be apposite to notice the definition as contained in the Act, which reads as under:
"2(e) 'Employee' means any person (other than an apprentice) employed on wages, [not exceeding ...] in any establishment, factory, mine, oil field, plantation, railway company or shop to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work whether the terms of such employment are express or implied, [and whether or not such person is employed in a managerial and administrative capacity....] Substituted for one thousand rupees, as rupees one thousand and six hundred, by Act 25 of 1984, Section 2 with effect from July 1, 1984".
7. It is also contended that the admitted fact as noticed in the impugned order is that when the services of the petitioner were terminated with effect from May 5, 1981, he was drawing monthly wages at the rate of Rs. 1180/-. By virtue of the amendment, the wages stood defined as "rupees one thousand and six hundred". Thus, the petitioner fell within the beneficial mischief of the definition. Resultantly, the petitioner became entitled to the gratuity as payable under the Act. The finding upon issue No. 1 is patently erroneous.
8. Learned Counsel has further argued that so far as the question of limitation is concerned, the application could not have been filed by the petitioner as the order of termination, dated May 8, 1981, was under challenge before the Industrial Tribunal and that the same had been set aside and the services of the petitioner mathematically stood terminated with effect from May 18, 1985. Thus, non-suiting the petitioner on the plea of limitation, would not be sustained and that the finding upon this issue is also not sustainable. Thus, the petitioner is entitled to the relief of payment of gratuity under the Act. She has also made reference to the definition of the word "wages" as contained in the Act under Section 2(s) of the Act. The perusal of the same shows that the dearness allowance can be included while calculating the wages as the emoluments used in the Act but certainly does not include any bonus, commission, house rent allowance overtime wages and any other allowance. She has emphatically contended that the petitioner was not paid any dearness allowance at any stage. However, no doubt, the house rent allowance is shown to have been paid but the same cannot be included while computing the wages for the purpose of provisions of the Act. The definition reads as under:
"2(s) 'wages' means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance."
9. Learned Counsel for the petitioner has further contended that the claim of gratuity has been denied by respondent No. 3 without any legal reasons. The case of the petitioner has been dealt with by the concerned authorities without any legal reasons. The case of the petitioner has been dealt with by the concerned authorities without examining the tacit facts and law applicable. Thus, the petitioner would be entitled to the gratuity amount alone with the interest grantable under the provisions of the Act.
10. Learned Counsel for the respondent has argued that the claim of the petitioner has been correctly declined by the Controlling Authority under the Act because in all probabilities and in all fairness, the services of the petitioner stood terminated with effect from May 8, 1981. The Industrial Tribunal has categorically held that the relations between the petitioner and the management had become strained and that they did not have liking for each other, the question of reinstatement did not arise. However, for the purpose of granting the compensation the order of termination was required to be set aside but effectively the reinstatement was not granted by accepting the termination technically and factually. The compensation has been awarded to the extent of seven years wages which did not mean that the petitioner could claim the service for seven years. Therefore, the controlling authority correctly interpreted the definition of the word "employee". No doubt, the amendment was made effective with effect from July 1, 1984 where the wages had been redefined as "rupees one thousand and six hundred" but originally, i.e., prior to the amendment, the wages had been pegged at Rs. 1000 per month and that if the wages of the workman were beyond this amount, no gratuity would become claimable.
Since the termination was ordered in the year 1981 and on that date the wages drawn were beyond the said amount, i.e., Rs. 1000, the benefit shall not be available to the petitioner. Similarly, the order of termination is dated May 8, 1981 and admittedly the application was filed on January 30, 1986, i.e., almost five years from the date of termination. The authority concerned has correctly held the application as barred by time. Apart from this, the total claim was decided by the Labour Court by way of awarding compensation on all counts equivalent to the wages of seven years. Thus, beyond that amount, the petitioner is not entitled to anything. Therefore, the claim of gratuity has been correctly declined by the controlling authority which has been further upheld by the appellate authority.
11. Learned Counsel for the respondent further contends that no claim of interest has been staked either before the controlling authority or before the appellate authority nor before this Court, as such, the claim of interest deserves to be declined.
12. I have heard learned Counsel for the parties and have also perused the pleadings and have gone through the orders impugned before this Court. After giving thoughtful consideration and examining the effect of the amendment carried out to the word "employee" and also taking into consideration the definition of the word "wages", I am of the considered opinion that the Controlling Authority and so also the appellate authority have fallen into error in declining the relief to the petitioner. The perusal of the award, dated May 8, 1985, made by the Industrial Tribunal categorically shows that the order of termination had been set aside. However, instead of granting reinstatement, which was the consequential relief, the Tribunal was convinced on the premises that the relations between the workman and the management are strained and that they have no liking for each other, it would be in the interest of both by compensating the workman. Therefore, no useful purpose would be achieved in granting the consequential relief of reinstatement and back-wages. Only for the purpose of bringing the amity between the two, the compensation has been awarded to the extent of seven years wages at the rate what he was drawing immediately before terminating his services on May 8, 1981. There is no doubt that no fresh order of termination has been passed by the employer but de hors this the reading of the conclusion, makes one thing absolutely clear that the order of termination had been set aside. Thus, for all intents and purposes there was no order of termination of the services of the petitioner. However, by reading the award, the irresistible conclusion reachable is that the services would be taken to have been terminated with effect from the date of the award, i.e., May 18, 1985. If that be so, the amendment in the definition, of the word "employee" would necessarily have to be read to the benefit of the petitioner. As a sequel thereto, the amount shall have to be read as "rupees one thousand and six hundred". Admittedly, the last drawn wages were Rs. 1180 per month. There is no doubt that the petitioner would be entitled to the payment of gratuity under the Act. Similarly, the finding that the application was barred by time also deserves to be set aside. In no way, the date of termination can be read as May 8, 1981. If that be so, the application filed cannot be rubbed of on the plea of limitation. Technically speaking, the application is to be filed within 90 days under Rule 9 of the Payment of Gratuity (Central) Rules, 1972 but by virtue of the proviso to the said rule, the controlling authority would be well within its rights to condone the delay on the premises of sufficient cause being shown by the applicant. In the circumstances and the narration of the facts as aforestated, the irresistible conclusion would be that sufficient cause has been made out and the delay, if any, would be condonable.
13. So far as the argument that by way of granting the compensation for the loss of the job in terms of seven years wages, the Tribunal included the claim of gratuity, is totally misconceived. The gratuity is payable under the special statute which was promulgated by keeping in view the objects and reasons to be read for the benefit of an employee. Thus, the finding on this issue is also vitiated.
14. The appellate authority has not really applied its mind while considering the ease of the petitioner as is evident from the fact that the definition of the word "employee" which was not applicable, to the case of the petitioner has been applied and that the definition of the word "wages" has not been considered at all.
15. In view of the above, the petition is allowed and the impugned order, dated December 28, 1987, copy Annexure P-4 and the order, dated July 1, 1988, Annexure P-7, are quashed. So far as the claim of interest is concerned when the same is statutorily payable upon the delayed payment, no judicial forum can deny the same to the claimant. It is a case of total mis-application of the provisions of the Act. It is evident from the fact noticed by the Industrial Tribunal that the employer does not have a soft corner for the petitioner as their relations are strained and they have no liking for each other. The employer made undefinable efforts in declining the claim of the petitioner in respect of the gratuity payable under the provisions of the Act. Under these circumstances, it is further, directed that the gratuity payable under the Act, after being calculated, be paid to the petitioner along with interest statutorily payable. The entire exercise be carried out within six months from the date of receipt of certified copy of this judgment. This would also include the payment of the amount to the petitioner. No order as to costs.