Jharkhand High Court
The Project Officer vs Smt. Alo Devi on 17 December, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 1957 of 2024
The Project Officer, Block-IV/Kooridih Colliery of M/s BCCL under
Govindpur Area of M/s BCCL, P.O.- Sonardih, P.S- Katras, District-
Dhanbad, PIN- 828125 through Sri Suman Kumar Saran, aged 57
years, son of Late Brij Prilas Saran, Project Officer, ABG Colliery,
resident of D-6, Sinidih Officers Colony, P.O.- Sudamdih, District-
Dhanbad. ... ... Petitioner
Versus
Smt. Alo Devi, wife of Late Dilip Kumar, resident of Kauludih, East
Katras, P.O.- Katrasgarh, P.S.- District- Dhanbad.
... ... Respondent
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Amit Kumar Sinha, Advocate For the Respondent : Mr. Shubham Mishra, Advocate : Mr. Shivam Utkarsh Sahay, Advocate : Mr. Kumar Pawan, Advocate
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09/17.12.2024
1. Heard the learned counsel appearing on behalf of the parties.
2. This writ petition has been filed for the following reliefs:-
"(A) For issuance of a writ in the nature of certiorari for quashing the order dated 25.03.2022 (Annexure-2) passed by the Controlling Authority under the Payment of Gratuity Act & the Asstt. Labour Commissioner (Central), Dhanbad in Application No. 36/(01) 2018. E.4 whereby a direction has been issued to pay the difference of gratuity amount of Rs. 1,97,952/- within 30 days from the date of receipt of the order failing which simple interest @ 7.2% would be payable from the date of the order till the actual date of payment.
(B) For issuance of a writ in the nature of certiorari for quashing the order dated 22/27.06.2023 (Annexure-4) passed by the Appellate Authority under the Payment of Gratuity Act, 1972 & The Chief Labour Commissioner (Central) Dhanbad in Gratuity Appeal No. 21/2022-A.7 whereby and whereunder the order passed by the Controlling Authority has been modified to the extent that the petitioner management has been directed to pay the different of gratuity amount of Rs. 1,01,198/- to the respondent herein in addition to Rs. 1,97,952/- as directed to be paid by the Controlling Authority.
AND/OR 1 Pass such other order/orders as Your Lordship may deem fit and proper for doing justice to the petitioner."
Arguments of the petitioner.
3. The learned counsel for the petitioner has submitted that the petitioner being employer has the liability to pay gratuity in terms of the provisions of Section 4 of the Payment of Gratuity Act and no more. In the present case the concerned employee had worked from 27.01.2014 till 16.07.2015 for a period of 17 months and as per the calculation made by the petitioner a gratuity amount came to Rs.9,064/- only which was duly paid. He submits that the respondent, the wife of the ex-employee was not entitled for any amount over and above Rs.9,064/-.
4. The learned counsel submits that the controlling authority had allowed gratuity as per the memorandum of understanding [ Annexure-1] entered into between the petitioner and the Life Insurance Corporation of India (LIC) according to which calculation of gratuity has to be made till the age of superannuation even if the employee dies while in service. The learned counsel submits that whatever amount was received from the LIC on account of gratuity with respect to the ex-employee who expired while in service has been paid to the respondent which is much more than the entitlement, that is, Rs.9,064/- as mentioned above. The learned counsel submits that there was no occasion for the controlling authority to direct payment of gratuity in terms of the memorandum of understanding entered into between the petitioner and the LIC and therefore, the impugned order passed by the Controlling Authority is perverse and calls for interference.
5. The learned counsel has referred to the judgment passed by Hon'ble Supreme Court reported in (2010) 2 SCC 44 paragraph No. 44 to submit that the Controlling Authority has no jurisdiction to deal with any such issue under sub-section (5) of Section 4 as to whether the terms of payable gratuity under any award or agreement or contract is more beneficial to the employees than the one provided for 2 payment of gratuity under the Act. He submits that the claim through LIC is neither an award nor an agreement nor a contract and therefore, the such claim could not be said to be available for the Controlling Authority to adjudicate and pass an order to direct the petitioner to pay any amount in terms of the memorandum understanding between the petitioner and LIC and therefore, the order passed by the Controlling Authority is wholly without jurisdiction. Paragraph 44 of the aforesaid judgement is quoted as under: - \ "44. Sub-section (7) of Section 7 provides for an appeal against the order of the Controlling Authority. The Act nowhere confers any jurisdiction upon the Controlling Authority to deal with any issue under sub-section (5) of Section 4 as to whether the terms of gratuity payable under any award or agreement or contract is more beneficial to employees than the one provided for payment of gratuity under the Act. This Court's order could not have conferred any such jurisdiction upon the Controlling Authority to decide any matter under sub-section (5) of Section 4, since Parliament in its wisdom had chosen to confer such jurisdiction only upon the appropriate Government and that too for the purposes of considering to grant exemption from the operation of the provisions of the Act."
6. The learned counsel has submitted that the petitioner had received an amount of Rs. 2,21,470/- from LIC and adding up Rs. 9,064/-, the total amount of Rs. 2,30,534/- has been paid to the respondent.
7. The learned counsel appearing on behalf of the respondent has submitted that memorandum of understanding between the petitioner and the LIC is binding on the petitioner and the respondent is entitled for benefit arising therefrom. He has submitted that on the face of the memorandum of understanding the Group Gratuity Cash Accumulation Scheme of LIC was to cover all the employees of Bharat Coking Coal Limited including Executives, Non-Executives and Company Trainees ongoing.
8. The learned counsel submits that any benefit flowing out of Memorandum of Understanding with LIC would automatically flow to the beneficiary and no separate arrangement or agreement or exercise of option is required for the purposes of availing the benefit of the scheme. He has submitted that the dispute before the Controlling 3 Authority was primarily in connection with the quantum of the amount and not with regards to the entitlement through the Memorandum of Understanding with LIC. He has referred to internal page 3 of the order passed by the Controlling Authority wherein a specific stand was taken by the petitioner that they have rightly calculated and paid the amount of gratuity to the applicant for the total length of service i.e. from 27.01.2014 (date of appointment) to the date of death on 16.07.2015 amounting to Rs.1,17,734.00 (Rs.9,064.00 by employer and Rs.1,08,670.00 by LIC). Findings of this court.
9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case and the materials placed on record , this Court finds that the employer (BCCL) had entered into a Memorandum of Understanding with Life Insurance Corporation of India which clearly reveals that BCCL wished to adopt to Group Gratuity Cash Accumulation Scheme of LIC which would cover all the employees including Executives, Non-Executives and Company Trainees and it was also undertaken that BCCL shall apply to the Income Tax Authorities for the approval of the Trust Deed and Rules. As per Clause 4 of the Memorandum of Understanding the amount of gratuity is to be calculated for the total service period as if the employee had rendered full service and as per Clause 7 the LIC has to settle and reimburse the claims submitted to them within six working days and all the payments were to be made through cheques. As per Clause 13, the LIC was to provide a certificate that initial contribution is not more than 8.33% of the salary of the individual member calculated for past service and also provide a certificate that the annual contribution is not more than 8.33% of the salary of any member on the basis of salary data provided by BCCL.
10. This Court finds that BCCL has entered into Memorandum of Understanding with LIC for the benefit of its employees and in terms of Clause 4 the gratuity is to be calculated as if the employee has rendered the full service irrespective of the date of death of the 4 employee while in employment. The scheme is "Group Gratuity Cash Accumulation Scheme of LIC". The respondent being widow of the ex-employee is a beneficiary of the scheme.
11. This Court also finds that BCCL had claimed the amount of gratuity from LIC and paid the entire amount so received to respondent upon death of the ex-employee but as per the calculation made by the respondent there was short payment. The Controlling Authority vide order dated 25.03.2022 calculated the short payment and directed for payment of the differential amount.
12. If the argument of BCCL that the amount of payable gratuity was only to the extent of Rs.9,064/- [upon calculation with respect to the period for which the ex-employee had rendered service before his death] is taken into consideration, then the petitioner would be entitled to retain the amount which is over and above the aforesaid amount of Rs.9,064/- received by the petitioner from the LIC on account of gratuity payable to the respondent.
13. Admittedly, BCCL had claimed the amount of gratuity from LIC and received amount which was much more than the aforesaid amount of Rs.9,064/- being payable gratuity as per their calculation and BCCL is taking a plea that the Controlling Authority had no jurisdiction to pass an order for payment of the amount in terms of the Memorandum of Understanding with LIC as Controlling authority has not been conferred the jurisdiction to determine as to whether the terms of gratuity payable under any award or agreement or contract is more beneficial to employees than the one provided for payment of gratuity under the Payment of Gratuity Act,1972 and for this BCCL has relied upon the aforesaid judgement reported in (2010) 2 SCC 44.
14. This Court is of the view that the specific case of BCCL before the Controlling Authority was that the claim was covered through Memorandum of Understanding with LIC and whatever they have received has already been paid. Here is a case where there is no question of any determination by the controlling authority as to whether the terms of gratuity payable under any award or agreement 5 or contract is more beneficial to respondent than the one provided for payment of gratuity under the Payment of Gratuity Act,1972. The only dispute was with regard to quantum of gratuity which was admittedly reimbursable to BCCL from LIC under the memorandum of understanding. Accordingly, the judgment passed by the Hon'ble Supreme Court reported in (2010) 2 SCC 44 does not apply to the facts and circumstances of this case. The Controlling Authority in the present case has adjudicated and quantified the amount which as per the petitioner was payable to the respondent in terms of the Memorandum of Understanding and the specific case of BCCL was that whatever was received from LIC was already paid to the respondent. The applicability and entitlement as per of Memorandum of Understanding was not in dispute.
15. If the petitioner has any differential claim from the LIC, it is for the petitioner to raise this issue before LIC and if the petitioner has received short payment from LIC, it is a matter between the petitioner and the LIC and the private respondent cannot be deprived of the amount which the respondent is otherwise entitled in terms of the Memorandum of Understanding entered into between the petitioner and the LIC.
16. Considering the aforesaid facts and circumstances, the impugned order passed by the Controlling Authority quantifying and directing for the payment of differential amount of of gratuity in terms of the Memorandum of Understanding entered into between the petitioner and the LIC as well as the impugned order of the Appellate Authority dismissing the appeal does not call for any interference under writ jurisdiction .
17. This writ petition is accordingly dismissed.
18. Pending I.A., if any, is closed.
Rakesh/- (Anubha Rawat Choudhary, J.)
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