Rajasthan High Court - Jaipur
Hindustan Copper Ltd vs Appellate Authority Anr on 26 November, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 12153/2013
Hindustan Copper Ltd., Khetri Copper Complex, Khetri Nagar,
District Jhunjhunu Raj. Through Executive Director
----Petitioner
Versus
1. The Appellate Authority Under P.g. Act, 1972 And Dy.
Chief Labour Commissioner Central, Kendriya Shram
Sadan, Hairbhau Upadhyay Nagar Extn., Pushkar Road,
Ajmer
2. Gulab Ram S/o Partu Ram, Near Bus Stand , 12 Quarter,
District Jhunjhunu Raj.
----Respondents
For Petitioner(s) : Mr.Abhay Bhandari, Sr.Adv with Mr.Atul Bhandari For Respondent(s) : Mr.A.K.Tanenia HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order 26/11/2018
1. The petitioner assails the order dated 15.5.2013 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 whereby the order passed by the Controlling Authority under the Payment of gratuity Act, 1972 for payment of gratuity to the respondents after deducting the amount of rent, was set aside.
2. The counsel for the petitioner submits that the Appellate Authority has failed to take notice of the law laid down by Apex Court in the case of Secretary, ONGC Ltd and anr. Vs. V.U.Warrier reported in (2005) 5 SCC 245 which took into its consideration and distinguished the judgment passed in (2 of 5) [CW-12153/2013] Gorakhpur University and ors. Vs. Dr.Shitla Prasad Nagendra and ors. reported in 2001 Lab I.C.2821, by the Appellate Authority under the Payment of Gratuity Act while passing the impugned order dated 15.5.2013. The learned counsel also relies on the view taken by the Apex Court and considered in the judgment of Wazir Chand Vs. Union of India and ors. reported in 2001 (6) SCC 596.
3. The counsel also submits that the respondents had unauthorizedly occupied the Government quarter even after retirement. Thus the penal rent was payable and the same was rightly deducted from the gratuity.
4. The counsel for the respondents has not been able to show any provision otherwise, he states that the respondent is ready to pay penal rent but the same ought not to be deducted from the gratuity and can be deducted from his retiral dues of pension and otherwise which are still to be paid to him. The counsel also submits that the workman was retaining the Government quarter on the ground that he had raised the dispute in relation to his date of birth and the fact that he was being wrongfully retired prematurely by counting wrong date of birth.
5. I have heard learned counsel for the parties and find that the Apex Court in the case of Gorakhpur University (supra) has examined the issue with regard to recovery of rent from an employee who had retired and was retaining the government quarter. The Apex Court held that under the Payment of Gratuity Act, recovery of rent could not have been made from the gratuity.
(3 of 5) [CW-12153/2013] However in the case of V.U.Warrier (supra), the apex Court has while taking into consideration the case of Wazir Chand Vs. Union of India and ors., proceeded as under:
"26. The matter can be considered from another angle also. It is well-settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court "to reach injustice wherever it is found". Before more than fifty years, in G. Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar, Tanjore District, Madras v. Raman & Raman Ltd., Kumbakonam, Tanjore District and Ors., [1952] SCR 583, the Constitution Bench of this Court speaking through Chandrasekhara Aiyer, J., observed that the writs referred to in Article 226 of the Constitution are obviously intended to enable the High Court to issue them "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice." (emphasis supplied)
27. Similarly, in the leading case of Sangram Singh v. Election Commissioner, Kotah & Anr., [1955] 2 SCR 1, dealing with the ambit and scope of powers of High Courts under Article 226of the Constitution, Bose, J., stated-
"That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Art. 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of cases unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."(emphasis supplied) The above principle has been reiterated and followed by this Court in several subsequent cases.
28. As already adverted to by us hereinabove, the facts of the present case did not deserve interference by the High Court in exercise of equitable jurisdiction under Article 226 of the Constitution. The respondent- petitioner before the High Court-, was a responsible officer holding the post of Additional Director (Finance & Accounts). He was, thus, "gold collar"
(4 of 5) [CW-12153/2013] employee of the Commission. In the capacity of employee of the Commission, he was allotted a residential quarter. He reached the age of superannuation and retired after office hours of February 28, 1990. He was, therefore, required to vacate the quarter allotted to him by the Commission. The Commission, as per its policy, granted four months' time to vacate. He, however, failed to do so. His prayer for continuing to occupy the quarter was duly considered and rejected on relevant and germane grounds. The residential accommodation constructed by him by taking loan at the concessional rate from the Commission was leased to Commission, but the possession of that quarter was restored to him taking into account the fact that he had retired and now he will have to vacate the quarter allotted to him by the Commission. In spite of that, he continued to occupy the quarter ignoring the warning by the Commission that if he would not vacate latest by June 30, 1990, penal rent would be charged from him. In our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitioner - respondent herein - and on that ground also, the order passed by the High Court deserves to be set aside.
6. Admittedly, the respondent has been occupying the government quarter unathorizedly, he was required to pay rent and penal rent in view of the provisions governing the payment of rent for occupying unauthorizedly Government quarter. The respondent also does not deny his liability of payment of rent in the circumstances and in view of the judgment passed by the Apex Court in the case of V.U.Warrier (supra). This court is not inclined to accept the order passed by the authority dated 15.5.2013 and is not satisfied that the intricacies of the provisions of payment of gratuity Act would not be required to be applied with regard to the recovery of dues relating to unauthorized occupation of Government quarter from the respondents.
7. Accordingly, the order dated 15.5.2013 passed by the Appellate Authority is set aside. The action of the Controlling Authority in deducting the penal rent as claimed by the petitioner is upheld.
(5 of 5) [CW-12153/2013]
8. It is noticed that the respondent has already attained the age of superannuation, and counsel for the respondent states that other retiral dues have not been released including pension and earned leave etc, thus this court is of the view that a person who is retired, is not only entitled to get the payment of gratuity but also other post retiral benefits while claim of the petitioner for deduction of penal rent is upheld, and at the same time, it is directed that the post retiral dues, if not released, shall be now released within a period of three months. The payment shall be made to the respondent along with interest @ 9% per annum.
9. The writ petition is, accordingly, allowed as above.
(SANJEEV PRAKASH SHARMA),J Sandeep/-104 Powered by TCPDF (www.tcpdf.org)