Calcutta High Court (Appellete Side)
Sambhunath Chatterjee vs Eastern Coalfields Ltd. & Ors on 8 August, 2013
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Arun Mishra, Chief Justice
And
The Hon'ble Justice Joymalya Bagchi
F.M.A. 585 of 2009
Sambhunath Chatterjee
-vs-
Eastern Coalfields Ltd. & Ors.
Shri Sumanta Pal,
Shri Partha Basu,
Shri Nikhil Kumar Roy. ...For the Respondents.
Heard on : 08.08.2013 Judgment on : 08.08.2013. As per Arun Mishra, C. J.
The appeal is at the instance of the workman. The order passed by the Controlling authority under the Payment of Gratuity Act, 1972 which was affirmed by the appellate authority vide order dated 27th July, 2005 had been questioned in the writ application by the employer. The Single Bench has allowed the writ application setting aside the order passed by the appellate authority under Payment of Gratuity Act, 1972.
Aggrieved thereby, the intra court appeal has been preferred. The workman filed an application before the controlling authority and Assistant Labour Commissioner, (Central), Asansol whereby the authority directed the employer to pay a sum of Rs.2,31,499/- towards gratuity to Sambhunath Chatterjee, ex-cashier, Sodepur Central Workshop, Eastern Coalfields Limited.
Sri Sambhunath Chatterjee was initially appointed as trainee in the Eastern Coalfields Limited. He was appointed on completion of the successful training, as blacksmith. He continued with the same employer. However, due to nationalisation of the Coalfields, the management was taken over by the Eastern Coalfields Limited. Gratuity was initially denied on the ground that he was still in possession of company's quarter unauthorisedly after his retirement. He was also denied gratuity for the training period from 9th April, 1968 to 31st May, 1972. Thus, he filed an application under Rule 10(1) of the Payment of Gratuity (Central) Rules, 1972.
The Controlling Authority held that training period should also be counted for continuous service and direction was issued to make the payment for the aforesaid period also.
Aggrieved thereby, the employer preferred an appeal before the appellate authority and the appeal has been dismissed vide order dated 27th July, 2005. The appellate authority has held that the appellant/employee was appointed as Blacksmith Trainee at Sodepur Workshop under Erstwhile Management of M/s. Bengal Coal co. Ltd. for a period of four years. During the training period he was paid stipend. He was absorbed as Blacksmith with effect from 01.06.1972 in the same establishment and retired on 01.07.2002 as Cashier.
It was the case set up by management of M/s. ECL who had considered the cases of Shri P.N. Ghosh, Shri Malay Kr. Banerjee, Shri Jitendra Nath Banerjee, Shri Manash Mishra and others who were appointed as trainee and were paid gratuity for the period of service rendered by them as trainee. It was also submitted that Shri B.P Mukherjee and eight others of Neamatpur Workshop under M/s. ECL were also paid gratuity for the training period as per the direction of the management. Thus, employee claimed for the same treatment.
The appellate authority has considered the definition of employee in Section 2(e) of the Payment of Gratuity Act and held that the employee was not apprentice, he was a trainee. There is difference between trainee and apprentice. For this purpose a decision in W.P No.18346 of 1994 i.e. S. Arunachalam Vs. Managing Director & Ors, Southern Structurals, Pattabhiram, Madras and others has been taken into consideration wherein distinction was made between the apprentice and trainee.
Another decision in case of Orissa Mining Corporation Limited (Rep. by Chairman-cum-Managing Director) vs. Controlling Authority under Payment of Gratuity Act, 1995(1) LLJ 381, by Orissa High Court Division Bench has also been relied upon in which distinction was made between a trainee employee under a contract of employment and an apprentice under the Apprentices Act.
It has also been found by the appellate authority that the employee was appointed on 9.4.1968 as a trainee and he was absorbed with effect from 1.3.1972 and had superannuated in the year 2002. In the similar cases, gratuity has been paid by the employer to the employees counting the period of training. Thus, the petitioner could not have been discriminated.
The appellate authority has also found that under Section 7(1) of the Coal Mines (Nationalisation) Act, 1973 every liability of the owner, agent, manager or managing contractor of a coal mine, in respect of any period prior to the appointed day shall be liability of such owner, agent, manager or managing contractor, as the case may be, and shall be enforceable against him and not against the Central Government or the Government Company. The Apex Court's decision in Central Coalfields Limited Vs. Union of India, 1998 (9) SCC 192 which has been relied upon in which it was held that prior service of the workmen continuing in service after 1st May, 1972 under the Cooking Coalmines (Nationalisation) Act, 1972 is to be included for determination of gratuity amount payable to workmen as it is not a prior liability. The liability for gratuity could not be termed to be crystallized prior to the appointed day. The argument that it had crystallized on the appointed day and were not passed on the Central Government was refuted. It was held that the question of payment of gratuity which becomes due only at the end of service in respect of workmen who were continuing in service even after the appointed day, arose subsequently to the appointed day and is, therefore, not prior liability for which the Central Government or the Government Company would not be liable because of Section 9 of the Act.
The Single Bench by the impugned order has held that in the form filled by the employee, he himself mentioned the date of his appointment as in the year 1972 and in such case, service book has to prevail. It was also found that the employee was engaged purely as a trainee on a temporary basis without any guarantee of future employment and was given consolidated stipend. He was never given promise of appointment in the concerned establishment to claim the status of an employee. The order of the appellate authority had been set aside by the Single Bench. Hence, the intra court appeal has been preferred before us.
None has put in appearance on behalf of the appellant. However, Shri Pal, learned Counsel has appeared on behalf of the employer, M/s. Eastern Coalfields Ltd. It was submitted by the learned Counsel that employee himself has mentioned his date of appointment as 1972. The period spent as trainee could not have been ordered to be included by the authorities under the Payment of Gratuity Act. The decision of the Single Bench is appropriate. No case for interference is made out.
After going through the decision rendered by the appellate authority under the Payment of Gratuity Act, we are of the considered opinion that the Single Bench had not gone into the various reasonings applied by the appellate authority while reversing its decision. It was incumbent upon the Single Bench to consider the distinction between a trainee and an apprentice and the decisions relied upon in W. P. No.18346 (W) of 1994, S. Arunachalam Vs. Managing Director, Southern Structural Pattabhiram, Madras & Ors. (Supra) and Orissa Mining Corporation Ltd. (represented by Chairman-cum- Managing Director) Vs. Controlling Authority (Supra). This aspect has not at all been gone into by the learned Single Bench. No decision to the contrary has been shown to us that there is no distinction between a trainee and an apprentice. A trainee employed under a contract of employment is not an apprentice unless he is undergoing apprenticeship training in a designated trade in pursuance to a contract of apprenticeship. Promise to offer absorption was not necessary to be given initially. After successful training, absorption was required to be made. Admittedly, the employee did not work as apprentice under the Apprenticeship Act under a particular contract but he was appointed as trainee blacksmith. Other similarly situated employees had been given the benefit of training period and gratuity has been given after taking into consideration the period they spent during training. There is no reason shown how the case of the appellant could have been distinguished by the employer. It was a case of discrimination and the appellant was entitled for payment of gratuity for the period spent by him during training in accordance with law.
The decision of the Hon'ble Supreme Court in Central Coalfields Ltd. (Supra) makes it clear that liability for payment of gratuity arose on superannuation which cannot be said to be existing liability on the appointed day and the liabilities which arose subsequently which was not a prior liability for which Central Government or the Government Company can deny the liability to make the payment.
The facts were taken into consideration by the appellant authority and it was found on facts that the employee had rendered services as trainee in the same establishment. It was taken over by the ECL after nationalization of the Coalfields. This finding has also not been touched upon by the Single Bench. Thus, in our opinion the Single Bench has proceeded without going into correctness of the reasonings applied by the appellate authority while dismissing the appeal filed by the employer. It was incumbent upon the Single Bench in case it desired to set aside the order passed by the appellate authority to consider each and every reason to test its correctness and thereafter reverse the decision. The period of service as trainee has also not been taken into consideration by the Single Bench merely because the petitioner has mentioned in the application that he was absorbed as blacksmith in the year 1972. His earlier period of service could not have been wiped out. He was entitled for payment of gratuity after including the period of training as it was rendered in the same establishment, which was taken over by the E.C.L. Thus, we find the order passed by the Single Bench to be unsustainable and liable to be set aside.
Resultantly, we allow the appeal and set aside the order passed by the Single Bench and restore the order passed by the appellate authority.
As none has appeared on behalf of the appellant, let a copy of this order be communicated to the appellant by the Registry of this Court.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.
(Joymalya Bagchi,J) (Arun Mishra, Chief Justice)