Orissa High Court
M/S. Neelachal Ispat Nigam vs State Of Odisha And Others .... Opposite ... on 17 February, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No.233 of 2017
An application under Articles 226 and 227 of the
Constitution of India.
M/s. Neelachal Ispat Nigam .... Petitioner
Ltd.(NINL), Kalinga Nagar
Industrial Complex, Jajpur
Mr. Aditya Mishra,
A. Pradhan and
A. Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. A. Behera, A.S.C.
Mr. S.K. Mohanty, Advocate
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 27.01.2023 | Date of Judgment: 17.02.2023
______________________________________________________
A.K. Mohapatra, J. :
1. The above noted review application has been filed by the review petitioner, who was Opposite Party No.4 in W.P.(C) No.18066 of 2017, challenging order dated 04.09.2017 and with further prayer to dismiss the writ petition by holding that the amount of gratuity determining under Annexure-1 and rejection of review under Annexure-2 apart from the entire P.G. Case // 2 // No.03 of 2016 being null and void, no recovery is possible from review petitioner.
2. The factual matrix of the case, in a nutshell, is that the Opposite Party No.4 in the review petition filed W.P.(C) No.18066 of 2017, as the petitioner, inter alia praying for a direction to the review petitioner as well as to the controlling authority under the Payment of Gratuity Act (Opposite Party No.3) to dispose of the application in FORM-T for recovery of gratuity amount filed by the Opposite Party No.4. Further the Opposite Party No.4-writ petitioner had also prayed for recovery of gratuity pursuant to order dated 06.04.2017 in P.G. Case No.3 of 2016 passed by the Opposite Party No.3, which was confirmed by the Opposite Party No.3by dismissing the review filed by the review petitioner vide order dated 30.06.2017.
3. On perusal of the records of W.P.(C) No.18066 of 2017, it is seen that a co-ordinate Bench of this Court vide order dated 04.09.2017 disposed of the said writ petition at the stage of admission without issuing notice to the Opposite Parties. Furthermore, the writ petition was disposed of with the following direction:-
xxx xxx xxx xxx
// 3 //
"Considering the submissions made and without expressing any opinion on the merits of the case, this Court directs the opposite party No.3 to complete the proceeding arising out of application for recovery of gratuity amount under Annexure-6 within a period of two months from the date of production of the certified copy of this order in accordance with law, if there is no other impediment.
The writ application is accordingly disposed of."
4. On a close scrutiny of the aforesaid order passed by the Co-ordinate Bench of this Court, this Court is of the considered view that the operative portion, as has been quoted hereinabove, of order dated 04.09.2017, it appears that the same does not cause any prejudice to the opposite parties in the writ petition. The said order has been passed only by directing the Opposite Party No.3 to complete the pending proceeding for recovery of gratuity within a period of two months in accordance with law, that too, if there is no other impediment. After going through the above quoted order this Court is unable to fathom as to how the review petitioner, who was Opposite Party No.4 to the writ petition is prejudiced.
// 4 //
5. Be that as it may, Mr. Mishra, learned counsel appearing for the petitioner submitted before this Court that the order dated 06.04.2017 passed in P.G. Case No.3 of 2016 is illegal, arbitrary and unjust and the same is otherwise void in view of the specific procedure laid down under the Orissa Payment of Gratuity Rules, 1974.
6. The undisputed factual background of the present case is that the Opposite Party No.4 joined in the Opposite Party No.3 company on 04.08.1983 as Despatch Clerk. At the relevant point of time, Opposite Party-Steel Authority of India Ltd., through the Board of Directors of the company in its 5th Meeting held on 23.12.1983 decided to adopt the existing rules and regulations relating to service conditions and establishment matters including wage and salary structures, allowances, benefits as amended/added from time to time by Steel Authority of India Ltd. (in short hereinafter 'SAIL') to its employee/executives till the formation of its own rules and regulations.
7. The non-executive employees of the company earlier approached this Court by filing writ petition bearing OJC No.1590 of 1991. Vide order dated 10.09.1992, this Court allowed the said writ petition by setting aside the action of the // 5 // petitioner's company in not granting the corresponding revised pay scale of SAIL as applicable to its non-executives while granting the SAIL revised scale of pay to its executives. Thereafter, an MoU was executed on 12.04.1994 as a result of which the review petitioner's company was transferred by the Government of India to the State Government along with its assets and liabilities. On 15.07.1994, the petitioner's company issued a letter informing the Opposite Party No.3 that the existing service conditions of its existing employees would continue. Thereafter, the order passed by this Court on 21.11.1994 was confirmed by the Hon'ble Supreme Court in SLP(Civil) Nos.4958-59 of 1993 vide order dated 21.11.1994 which was preferred by the petitioner's company. Further w.e.f. 01.03.1999 the petitioner's company is being treated to be a Public Sector Undertaking. While the matter stood thus, the petitioner has retired from service on attaining the age of superannuation w.e.f. 31.05.2014.
8. After retirement of the petitioner, the company issued a cheque of Rs.9,90,021.00 to the Opposite Party No.4 towards his retirement gratuity. Thereafter, the Opposite Party No.4 submitted a representation to the petitioner's company claiming his unpaid // 6 // differential amount of gratuity i.e. a sum of Rs.23,420.00 which was due and payable to the Opposite Party No.4 as per Service Rules. Since the review petitioner did not pay the dues, Opposite Party No.4-writ petitioner was completed to approach this Court by filing a writ petition bearing W.P.(C) No.25449 of 2014 with a prayer for a direction to the review petitioner to pay the amount of gratuity as due and admissible under the Gratuity Rules, 1977 on the ground that the petitioner's company has been following the same in respect of its employees and officers. In the counter affidavit filed by the review petitioner to the above noted writ petition it was submitted that the gratuity amount payable to the Opposite Party No.4 has been calculated at Rs.9,90,021.00 and the same has accordingly been paid. However, the amount which has been paid to the Opposite Party No.4 before the revision of pay would stand modified after revision of the pay and the amount payable would be Rs.11,56,294.00. This Court vide order dated 22.06.2016 disposed of the writ petition granting liberty to approach the Controlling Authority under the Payment of Gratuity Act for redressal of his grievance.
9. On 29.06.2016, the Opposite Party No.4 filed an application for a direction in FORM-N before the Controlling // 7 // Authority under P.G. Act (Opposite Party No.3) and the Assistant Labour Commissioner, Jajpur which was registered as P.G. Case No.3 of 2016. The Opposite Party No.3 Controlling Authority after hearing the counsels appearing for the review petitioner as well as Opposite Party No.4 and further by taking into consideration the submissions made by the representative of the Review Petitioner and his point wise comments as well as list of dates and relevant documents, finally vide order dated 06.04.2017 allowed the P.G. Case and directed the petitioner to pay the Opposite Party No.3 his unpaid/differential amount of gratuity i.e. a sum of Rs.1,94,542.00 along with interest @ 10% per annum from the date of superannuation till the actual date of payment. The Opposite Party No.3 Controlling Authority also issued FORM-R under Rule-17 of the Payment of Gratuity Rules. While the matter stood thus, the review petitioner filed a review against the order dated 06.04.2017 before the Controlling Authority under the Payment of Gratuity Act (Opposite Party No.3) on the grounds stated in the said review petition under Annexure-3 to this review petition. However, the said review petition filed by the review petitioner seeking review of order dated 06.04.2017 under Rule-11(5) of the payment of gratuity Rules, 1972 was dismissed vide order dated 30.06.2017 by specifically holding that there is // 8 // no provision under the Payment of Gratuity Act/Rules to review the order.
10. After dismissal of the review, the petitioner again approached by filing review on 07.08.2017 by calculating the gratuity as has been directed vide its order dated 06.07.2017. Since the review petitioner did not pay the amount as has been directed by the Controlling Authority-Opposite Party No.3, the Opposite Party No.4 submitted an application for recovery of gratuity in FORM-T on 14.08.2017 before the Controlling Authority-Opposite Party No.3. While the FORM-T was pending before the Opposite Party No.3 and the Opposite Party No.3 was not taking any action on it, the Opposite Party No.4 as the petitioner approached this Court by filing W.P.(C) No.18066 of 2017 on 28.08.2017 seeking an appropriate direction to the petitioner to pay his gratuity amount of Rs.2,57,768.00 with interest till the date of actual payment. The said writ petition was listed before the Co-ordinate Bench of this Court and this Court at the stage of admission on 04.09.2017 disposed of the writ petition as has been indicated in the preceding paragraph.
11. Heard Mr. Aditya Mishra, learned counsel appearing for the petitioner, Mr. S.K. Mohanty, learned counsel appearing for // 9 // the Opposite Party No.4 and Mr. A. Behera, learned counsel for the State. Perused the pleadings as well as materials placed before this Court and the LCR which was called for earlier by this Court.
12. Mr. Mishra, learned counsel appearing for the petitioner, at the outset, submitted that the order passed by the learned Single Judge in W.P.(C) No.18066 of 2017 vide order dated 04.09.2017 is unsustainable in law on the preliminary ground that the same was disposed of at the stage of admission without issuing notice to the Opposite Parties and thereby without giving an opportunity of hearing to the Opposite Parties. Therefore, he submitted that such an order has been passed in violation of principle of natural justice.
13. Next, learned counsel for the petitioner pointed out that certain facts which were apparent on the face of the record have been inadvertently missed out by the learned Single Judge while disposing of the earlier writ petition and the same needs to be re- looked in the present review petition. While elaborating the error apparent on the face of record, learned counsel for the petitioner highlighted the following points:-
(i) The applicant allegedly claim gratuity as per SAIL Rules which is not applicable to the // 10 // establishment of the petitioner, rather the Opposite party No.4 is covered by Payment of Gratuity Rules framed in the gratuity trust by the company which has been ignored by the Controlling Authority while passing final order.
(ii) The controlling authority which is empowered to determine the gratuity under the P.G. Act and Rules has not taken into consideration that the claim of the Opposite Party No.4 is beyond such provision and furthermore, entertaining the application at the behest of Opposite Party No.4 is completely without jurisdiction. Therefore, the maintainability of the application before the Controlling Authority was being questioned by the petitioner in the writ petition.
(iii) The Opposite Party No.3 having calculated the gratuity as per the P.G. Act, which has been adopted in H.R. Policy of the petitioner's management and the amount so determined have not been accepted by the Opposite Party No.4, the Opposite Party No.4 is stopped to make further claim under the P.G. Act before the Opposite Party No.3.
(iv) Review of the order was also sought for on the ground that the Opposite Party No.3 decided the claim in absence of review petitioner as it is // 11 // submitted that after 25.01.2017, the review petitioner did not participate in the proceeding.
(v) The applicability of SAIL Gratuity Rules and other benefits are beyond the scope of consideration under the P.G. Act. As such, the Controlling Authority apparently lacked jurisdiction and power which rendered the order passed by Opposite Party No.3 a nullity.
(vi) Order dated 06.04.2017 has awarded a gratuity amounting to Rs.10,00,000/-(rupees ten lakhs) which is beyond the scope and jurisdiction of the controlling authority. It was also argued that the Opposite Party No.4 has brought out a new case which is contrary to the provisions of P.G. Act.
(vii) Claim of the Opposite Party No.4 being strictly not under the P.G. Act, a claim application at his instance is not maintainable before the controlling authority (Opposite Party No.3).
Moreover, the impugned order dated 06.04.2017 passed by the controlling authority has not been communicated to the petitioner, the limitation for recalling said ex parte order/review under Rule 11(5) of the gratuity rules is yet to be commenced.
(viii) The final order dated 06.04.2017 has been passed in violation of the P.G. Act and the Rules inasmuch as no evidence was led, documents were not examined, witnesses were not examined and // 12 // hence, hearing as stipulated under Rule 11(4) of the Rules have been infringed by the Opposite Party No.3. Accordingly, the petitioner had approached the controlling authority by filing a review under Rule 11(5) of the P.G. Rules.
(ix) With regard to review petition filed by the review petitioner before the Opposite Party No.3, it is alleged by the petitioner that no opportunity whatsoever has been afforded to the petitioner although the case was concluded by the Opposite Party No.3.
14. In course of argument, learned counsel for the petitioner emphasized the ground that the petitioner has not been given adequate opportunity to show-cause and to lead evidence and opportunity for other procedural things. He further contended that there are many legal aspects of the matter which the controlling authority i.e. Opposite Party No.3 should have considered at the time of hearing of the P.G. Act, however, the same having not been done it could be construed that such provisions of the P.G. Act and rules have not been adhered to while hearing the matter by the controlling authority-Opposite Party No.3. Accordingly, learned counsel for the petitioner submitted that the final order is a nullity in the eye of law and hence, the same should be set aside by this court in exercise of its review jurisdiction.
// 13 //
15. Mr. S.K. Mohanty, learned counsel appearing for the Opposite Parties, at the outset, contended that the review petition filed at the instance of the management is not maintainable in law. Moreover, he also submitted that by filing the present review application, the review petitioner-management has succeeded in stalling the proceeding for last six years. As a result of the pendency of the review petition before this Court, the Opposite Party No.4-writ petitioner is not getting his gratuity and other retiral dues as is due and admissible to him as per law.
16. In reply to the contentions raised by the learned counsel for the petitioner, Mr. Mohanty, learned counsel appearing for the Opposite Party No.4 submitted that the allegation of the review petitioner that he was not heard by controlling authority is absolutely baseless and such fact is not borne out from the L.C.R. which has already been called for by this Court and available with Court. It was also contended before this Court that the impugned order does not cause any prejudice to the review petitioner- management. Further referring to the judgments delivered by Hon'ble Supreme Court with regard to the scope of review i.e. M/s. Tungabhadra Industries Ltd. vrs. Government of Andhra Pradesh : reported in 1964 S.C. 1372, Haridas Das vrs. Smt. // 14 // Usharani Banik and others : reported in AIR 2006 S.C. 1634, Ambika Prasad Bhatta vrs. Nehru Paribesh Surakshaya Committee and others : reported in 2002 (II) OLR 543 (D.B.) of Orissa High Court, learned counsel appearing for the Opposite Party No.4 submitted that in view of the well established principle laying down scope, ambit and jurisdiction of the Court under Order 47 Rule-1, C.P.C. to interfere in a review application, the review application at the instance of the review petitioner does not satisfy the condition laid down by the Hon'ble Supreme Court as well as by this Court. Therefore, the review application is not maintainable and in the interest of justice the review petition be dismissed.
17. Having heard learned counsel for the parties and upon careful consideration of the materials placed before this Court and upon careful scrutiny of L.C.R. which was called for by this Court earlier, this Court at the outset would like to observe that if at all the petitioner was aggrieved by the order passed by the controlling authority on 06.04.2017 and thereafter by dismissal of his review petition by the controlling authority-Opposite Party No.3 vide order dated 30.06.2017, the review petitioner should have approached the competent forum including this Court // 15 // challenging the aforesaid two orders. However, the same had not been done till the Opposite Party No.4 approached this Court by filing writ petition bearing W.P.(C) No.18066 of 2017. On perusal of the record, W.P.(C) No.18066 of 2017 it appears that the petitioner had approached this Court with the following prayer:-
"PRAYER It is, therefore, humbly prayed that this Hon'ble Court may graciously be pleased to issue a Writ in the nature of a Writ of Mandamus, directing the Opp.Parties No.4 & 5 to pay the Petitioner his Gratuity amount of Rs.2,57,768.00 with future compound interest till the date of actual payment;
And may further be pleased to issue any other Writ/Order, supplemental, incidental and/or ancillary to the main relief sought for herein above."
18. From a bare reading of the aforesaid prayer made in the writ petition, it is very clear that when the writ petition was filed, there were two orders i.e. the original order dated 06.04.2017 and review order dated 30.06.2017. Since, both the orders were in favour of the Opposite Party No.4, by filing W.P.(C) No.18066 of 2017, the Opposite Party No.4 sought for a direction to implement the order passed by the controlling authority-Opposite Party No.3.
// 16 // This Court on the first date of admission of the writ petition vide order dated 04.09.2017 directed the Opposite Party No.3 to conclude the proceeding arising out of application for recovery of gratuity amount under Annexure-6 within a stipulated period of time i.e. two months, further subject to condition that there is no impediment. Such an order dated 04.09.2017, in the considered view of this Court, does not cause any prejudice to the review petitioner. On the contrary, vide order dated 04.09.2017, this Court had asked the controlling authority-Opposite Party No.3 to act in accordance with law and the rules, if there is no impediment. Thus, it cannot be said that this Court had committed any illegality at all.
19. After the impugned orders were passed by the Controlling Authority, it was up to the review petitioner to challenge the same but they did not prefer to challenge the same and sat over the matter. Therefore, it is no more open to the review petitioner to approach this Court just to deny the fruits of the order being enjoyed by the writ petitioner after the issue was decided in his favour. Moreover, on a careful consideration of all the grounds, which have been narrated hereinabove and the same are the grounds according to the review petitioner to review the order // 17 // passed by this Court are not valid and legal grounds for review by taking into consideration the legal principle which governs the final adjudication of review petitions particularly the provisions contained under Order 47 Rule-1 of the C.P.C. Rather grounds, which have been elaborated in the review petition and taken as grounds for review of this Court's order dated 04.09.2017 should have been raised at the instance of the review petitioner by directly approaching this Court while challenging the order passed by the controlling authority. Having not done that, the review petitioner cannot put the blame on the Opposite Party No.4 who happens to be was working under the review petitioner management.
20. According to this Court, the only possible ground, the review petitioner could have taken in his review petition is that the order was passed ex parte at the stage of admission by this Court but, that itself is not sufficient to entertain the review application unless the party aggrieved demonstrates that he has been adversely affected by such an order passed by this Court. On perusal of order dated 04.09.2017, this Court is of the considered view that the same does not cause any prejudice at all to either of the parties.
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21. In view of the aforesaid analysis of the factual background of this Case and the principles of law governing the field, this Court is of the considered view that the petitioner has failed to make out a case for review and thereby compel this Court to exercise its power of review and accordingly, it is held that the review petition is devoid of merit and the review petition is hereby dismissed. However, if the review petitioner is, so advised, he may assail the order passed by the controlling authority in an independent proceeding lodged at their instances. On perusal of the order passed by the controlling authority, this Court upon careful examination of the L.C.R. is of the considered view that the representative of the management was heard and his note of submission was taken into consideration by the Controlling Authority while passing final order. Therefore, the order dated 06.04.2017 is an order passed by the Controlling Authority by exercising power under Rule 11(4). On perusal of the said rule, it appears that no scope of review has been provided against any orders passed under Rule 11(4) of the P.G. Rules, 1972. It is only in case of orders passed under Rule 11(5), which are ex parte orders, a scope of review has been provided under the proviso appended to Rule 11(5). Therefore, this Court is of the considered view that the Controlling Authority while holding that // 19 // he does not have power of review against the order passed by him under Rule 11(4) is not erroneous and illegal.
22. The Review Petition is accordingly dismissed. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 17th of February, 2023/ Jagabandhu