Calcutta High Court
Ram Ranjan Mukherjee & Ors. vs Mining And Allied Machinery Corpn. Ltd. on 16 August, 2000
Equivalent citations: (2000)3CALLT468(HC), [2001(89)FLR274], (2001)ILLJ1020CAL
JUDGMENT D.P. Kundu, J.
1. The petitioners are retired employees of the Mining and Allied Machinery Corporation Ltd. (for short MAMC). The petitioners have common cause of action as they retired from the services of MAMC under the Voluntary Retirement Scheme (for short VRS) Introduced by MAMC for its benefit. The case of the petitioners is that in spite of acceptance of their retirement under VRS their retirement benefit of gratuity have not yet been paid by MAMC.
2. MAMC introduced VRS in 1989. The petitioners applied for voluntary retirement under VRS and the petitioners were thereafter, by respective orders, released from the services of MAMC under the said VRS with effect from the respective dates from the year 1993 as mentioned in the respective orders of retirement. The retirement of the writ petitioners under VRS took place during the period of 1993 to 1995. The following points arise for determination in the present case.
1. Whether, in view of the provisions of Payment of Gratuity Act, 1972 MAMC can withhold the payment of gratuity of the petitioners under the said Act on the plea that the petitioners have not vacated the residential accommodation allotted to them.
2. Whether MAMC, under the provisions of Payment of Gratuity Act, 1972 can deduct or adjust the dues purportedly payable by the petitioners on account of their house rent, electricity charges, water tax etc. from their amount of gratuity.
3. Whether Clause 6(2) of the VRS dated 26-5-89 Is ultra vires of the Payment of Gratuity Act. 1972.
4. Whether MAMC, In the facts and circumstances of the case, is liable to pay interest at the rate of 18% on the amount of gratuity due and payable by it to the petitioners.
3. Similar questions arose for consideration of the Court In W.P. No.22504 [W) of 1998 (Taparf Kumar Bhattacharjee & Ors. v. MAMC & Ors.}. I, by my Judgment and order dated 25.7.2000 in W.P. No. 22504 (W) of 1998, inter a((a held-
(a) Gratuity is now treated as valuable right and property of the employees,
(b) Any culpable delay in settlement and disbursement of gratuity must be visited with the penalty of payment of Interest at the current rate till actual payment,
(c) Except under section 4 sub-section 6 of the Payment of Gratuity Act, 1972, no deduction can be made from the amount of gratuity payable to an employee under the provisions of Payment of Gratuity Act, 1972.
(d) If a 'state' within the meaning of Article 12 of the Constitution deducts any amount from the admitted amount of gratuity payable under the Payment of Gratuity Act, 1972 not In accordance with law then such deduction amounts to deprivation of property within the meaning of Article 300A of the Constitution of India and such deprivation Is arbitrary and violates the provisions of Article 14 of the Constitution of India.
(e) Gratuity due to an employee under the provision of Payment of Gratuity Act. 1972 cannot be withheld merely because the claim for damages for unauthorised occupation Is pending since right to gratuity is not dependent upon the employee vacating the official accommodation.
(f) There can be no estoppel against the Payment of Gratuity Act, 1972,
(g) An employee cannot waive his rights under the Payment of Gratuity Act, 1972 because the provisions of payment of Gratuity Act have been enacted from reasons of public policy.
4. The learned Advocate for the respondents,argued that the present matter differs from W.P. No. 22504 (W) of 1998 on two grounds namely, (1) In the Instant case the petitioners approached the Court by suppressing the material fact and (2) undertaking was given by the petitioners for deduction from provident fund.
5. Payment of gratuity to the employees under the Payment of Gratuity Act, 1972 is a mandatory statutory obligation which cannot be trifle with by adaptation of a method which runs counter to the statute. The statutory obligation of payment of gratuity cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being and authority within the menalng of Article 12 or not There Is a mandate of the payment of Gratuity Act that gratuity Is to be paid to the employee on his retirement or to his dependents In the event of early death. I am of the view that by Introducing VRS the mandate of the payment of Gratuity Act cannot be violated. Paragraph 6(2) of VRS lays down that the payment under VRS shall be made after handling over all charges of the posts Including tools, materials, accessories and residential accommodation allotted by the Corporation. In my opinion the aforesaid paragraph 6(2) of VRS cannot be made applicable in respect of payment of gratuity under Payment of Gratuity Act, 1972 because if the said paragraph is made applicable in respect of payment of gratuity then it shall violate the mandate of the provisions of Payment of Gratuity Act and cannot but be termed to be illegal in the nature.
6. Some of the petitioners might have preferred application under section 7(4)(a) of the Payment of Gratuity Act, 1972 but such making of application Is not at all relevant for the purpose of determination of this case because there is no dispute about the admitted amount of gratuity. The dispute relates to whether deductions can be made from the admitted amount of gratuity though such deductions are not permitted by the provisions of the Payment of Gratuity Act, 1972. Therefore, I find that there is no suppression of material fact which can disentitle the writ petitioners from obtaining any relief from this Court.
7. It was also argued by the learned Advocate for the respondents that some of the petitioners have given undertaking to the effect that deduction can be made from their gratuity. I am of the view that such undertaking does not amount to waiver of the employees right because such right has been created by the statute from reasons of public policy.
8. In view of the discussions made hereinabove I am of the opinion that petitioners are entitled to undisputed amount of gratuity under the Payment of Gratuity Act, 1972 and no amount can be deducted from the said admitted amount of gratuity except in accordance with sub-section 6 of section 4 of the Payment of Gratuity Act, 1972.
9. Under the circumstances I direct MAMC to pay the petitioners the undisputed amount of gratuity under the Payment of Gratuity Act, 1972 forthwith less the amount, if any, already paid towards the undisputed amount of gratuity. I further direct MAMC to pay the petitioners 10% Interest on the amount to be paid to the petitioners and such interest should be paid from the date of retirement till payment is made. In these terms the writ application is disposed of.
If urgent certified xerox copy is applied for, the same should be made available to the parties as quickly as possible.
10. Application disposed of