Madras High Court
Arulmigu Sankaranarayanasamy vs The Joint Commissioner Of on 8 October, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08/10/2007 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD).Nos.1096 of 2005 W.P.(MD).Nos.1097 to 1101 of 2005 and W.P.M.P.Nos.1058, 1060, 1062, 1064, 1066 and 1068 of 2005 Arulmigu Sankaranarayanasamy Devasthanam, Sankarankoil, through its Deputy Commissioner/ Executive Officer, Sankarankoil, Tirunelveli District. ... Petitioner in all the writ petitions Vs. 1.The Joint Commissioner of Labour (Appellate Authority) under the Payment of Gratuity Act, Anna Nagar, Madurai-20. 2.The Assistant Commissioner of Labour, Competent Authority under the Payment of Gratuity Act, Tirunelveli. ... Respondents in all the writ petitions 3.A.C.Muthusamy ... 3rd Respondent in W.P.No.1096 of 2005 4.S.Madasamy ... 3rd Respondent in W.P.No.1097 of 2005 5.D.Veerasamy ... 3rd Respondent in W.P.No.1098 of 2005 6.S.Sivasankaran ... 3rd Respondent in W.P.No.1099 of 2005 7.P.Shanmugam Pillai ... 3rd Respondent in W.P.No.1100 of 2005 8.P.Kalyani ... 3rd Respondent in W.P.No.1101 of 2005 PRAYER These writ petitions have been filed under Article 226 of the Constitution of India, praying for the issuance of writ of Certiorarified Mandamus, to call for the records in pursuant to the order dated 17.05.2004 in Payment of Gratuity Case Nos.81 to 86 of 2002 passed by the 2nd respondent and quash the same and directed the 1st respondent to take to file the Appeal filed dated 08.07.2004 by the petitioner herein against the orders of the 2nd respondent without depositing the gratuity amount as per Section 7(7) of Payment of Gratuity Act, 1972. !For petitioner in all the writ petitions ... Mr.K.Srinivasan ^For respondents 1 & 2 in ... M/s.V.Chellammal, all the writ petitions Spl. Govt. Pleader For 3rd respondent in all the writ petitions ... Mr.F.X.Eugene :ORDER
In all the Writ Petitions the petitioner is Arulmigu Sankaranarayanasamy, represented by its Deputy Commissioner/ Executive Officer.
2. In all these Writ Petitions, the 3rd respondent are employees engaged by the Devasthanam. They had filed applications for gratuity before the second respondent Controlling Authority.
3. The Controlling Authority, by an order dated 17.05.2004 in each of the P.G.Case Nos.81 to 86 of 2002, rejected the objections raised by the Writ Petitioner and held that the Payment of Gratuity Act will apply to them because the establishment of the Temple were running Lodges, Wedding Hall and lets out the front Mandapam of the Temple for shops and rents have been collected. For these purpose, they are engaging 62 workers. Therefore, the activity of the temple in so far as the running of Lodges for the Devotees and also Wedding Halls as well as collection of rents from the various shops let out will amount to an activity coming within the meaning of Section 2(j) of the Industrial Disputes Act.
4. Even though under the Hindu Religious and Charitable Endowment Act (for short HR&CE Act), under Section 26, there is a scheme for Payment of Gratuity inasmuch as no gratuity paid to the workmen and further no exemption has been obtained under Section 5 of the Payment of Gratuity Act, the contesting third respondents were eligible for gratuity. Accordingly, the impugned orders came to be passed by the second respondent.
5. The objection raised by the petitioner Devasthanam was since it is a temple, the application of the Gratuity Act may not be appropriate. They also submitted that in respect of the Writ Petition filed by the Thiruchendur Temple Workers Association, this Court had rejected the claim of coverage under the Payment of Gratuity Act. The Division Bench had also rejected the said Writ Appeal filed by them. Even in respect of Palani Temple, such an order had been passed.
6. In the present Writ Petition, the Devasthanam has appeals to the Appellate Authority in terms of Section 7(7) of the Payment of Gratuity Act, but without depositing the amounts computed by the 2nd respondent which is a prerequisite for entertaining any appeal. Since the Appellate Authority did not take up their appeals as there is no provision for waiver of pre-condition of deposit, they have come forward to file the present writ petitions seeking for a direction to the first respondent Appellate Authority to take up their appeal without insisting pre-deposit.
7.Section 7(7) of the payment of Gratuity Act Reads as follows:-
"Sec7(7)- Any person aggrieved by an order under sub section (4) may, within sixty days from the date of receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:
Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days:
[Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposit under sub-section (4), or deposits with the appellate authority such amount.]
8. The Provisio to the Section 7(7) is mandatory and it would not be open to this Court to waive the condition of pre-deposit by exercising its extraordinary power vested on this Court under Article 226 of the Constitution. The only course open to the petitioner is to deposit the amount and direct authority to take up the appeal, which have been filed by them, before the first respondent appellate Authority. The writ petition is liable to be rejected on the short ground that it is not in the realm of this Court to waive the pre- deposit, as the Section do not give any discretion because, even the authority has no such discretion to waive the condition of the pre-deposit
9.The Supreme Court considered the power of higher courts regarding the non-exercise of the discretion by a lower Court activity vide its decision reported in Gujarat Steel Tubes Ltd., and Others Vs. Gujarat Steel Tubes Mazdoor Sabha & others reported in 1980(2) SCC 593. The relevant passage found in para 83 may be usefully extracted below:-
"83. The more serious question whether the abritrator had the plentitude of power to re-examine the punishment imposed by the Management, even if he disagreed with its severity. In this case the arbitrator expressed himself as concurring with the punishment. But if he had disagreed, as the High Court, in his place, did, could he have interfered? Armed with the language of Section 11-A, which confers wide original power to the tribunal to re-fix the 'sentence', Sri Sen argued that an arbitrator was uncovered by this new section. So, even if he would, he could not. And, in this case if he could, he would not. There the mater ended, was the argument. We disagree. Even if he could, he would not, true; but that did not preclude the High Court from reviewing the order in exercise of its extraordinary Constitutional power".
But in the present case, even the appellate authority has not been given the power of a waiver. Therefore, the attempt to make this Court to exercise a discretionary power over a statutorily prohibited area must fail.
10. This Court vide its Judgment in Onward Trading Company, Madras and Deputy Commissioner of Labour, Madras, and another reported in 1989(2) LLN 672 held that the statutory precondition must be obeyed. The following passage found in para 2 may be extracted.
"2. The grievance of the petitioner is that it has filed an appeal against the order passed by the second respondent before the first respondent and along with the appeal, it has furnished bank guarantee for the disputed amount, and that the first respondent is refusing to accept the bank guarantee and is insisting upon cash payment. I find that payment in cash is a statutory requirement, which cannot be dispensed with by furnishing a bank guarantee. Therefore, the first respondent is justified in insisting upon payment of the amount in cash."
11. Further, in another decision of this Court in Management of Christian Medical College and Hospital Vs. Deputy Commissioner of Labour (Appeals) and another reported in 2001(3) L.L.N.692 confirmed the same view. The following passages found in para 9,10, & 11 may be usefully reproduced:-
"9.The object of the proviso to Sub-sec(7) of S.7 makes it abundantly clear that before filing an appeal, the employer is bound to deposit the amount of gratuity required to be deposited under Sub-sec (4) of S.7. In other words, the expression "amount of gratuity required to be decided under Sub-sec(4) cannot be restricted to clause A of Sub-sec(4) as Sub-sec(4) provides for various other contingencies including the contingency where there is total denial and the conclusion of the controlling authority holding that the employer is liable to pay gratuity. When once the controlling authority adjudicates the claim of the employer and holds that the employer is liable to pay gratuity, which adjudication also falls under Sub-sec.(4), and as such, the amount adjudicated by the controlling authority is required to be deposited before filing an appeal.
10. The interpretation sought to be placed on the second proviso to S.7(7) if it is to be sustained as contended by counsel for the writ petitioner, the same will defeat the very object of the statutory provision. Identical provisions had been repeatedly upheld and in lthis case there is not challenge to the constitutional validity of the proviso. There is no basis or justification or reason to restrict the meaning of the expression "amount of gratuity required to be deposited under Sub-sec(4)" of S.7 to Sub-sec.(4)(a) alone. Such a construction will defeat the very object of the enactment, a social legislation.
11.If the Legislature intended to restrict the pre-deposit to Cl.(a) of Sub-sec.(4)of S.7, then it would have been provided that the required amount to be deposited under Cl.(a) of Sub-sec.(4). This is not the statutory provision. Further, if such a contention is to be accepted, the object of legislation, which has provided for a mandatory provision to deposit the amount as determined by the controlling authority before filling an appeal, would be defeated. The intention and object of the legislation is also very clear and the second proviso has been introduced with the object of making pre-deposit of the amount determined by the controlling authority as pre-requisite under Sub-sec(7) of S.7. Further in terms of Cl.(a) of Sub-sec.(4) of S.7 the deposit is a voluntary deposit by the employer at the threshold, where the employer comes forward with a deposit. Such is not the contingency provided for in respect of other clauses in Sub-sec(4) of S.7 of the Act."
12. It is not as if the petitioner has made out a prima facie case so as to even to think of directing the authority to take up the issue. In fact, even though, the petitioner had filed the judgments of this Court relating to the Thiruchendur Temple, in the said judgment, this Court held that merely because an establishment is an 'industry' within the meaning of Section 2(j) of the Industrial Dispute Act, it will not automatically be covered by the provision of the Payment of Gratuity Act. But on the other hand, the said industry must also come within the meaning of Section 1(3)(b) of the Payment of Gratuity Act, 1972.
13. It is necessary to reproduce the Section 1(3)(b) of the Payment of Gratuity Act, which is as follows:-
"1(3)It shall apply to -
(a) ever factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;" [Emphasis added] The Supreme Court had an occasion to consider the full impact of Section 1(3)(b) especially, the true meaning of the underlined portion shown above.
14. The Supreme Court vide its judgment in 1981 (1) LLJ 354 in State of Punjab Vs Labour Court, Jullunder and others held that S.I(3)(b) of the Act applies to every establishment within the meaning of any law for the time being in force in relation to an establishment in a State and it was not necessary that the law should be one relating to shops and establishment alone. The law is expounded thus:-
"4......S.I(3)(b) speaks of "any law for the time being in force in relation to shops and establishments in a State". There can be no dispute that the payment of Wages Act is in force in the State of Punjab. Then, it is submitted, the Payment of Wages Act is not a law in relation to "shops and establishments'. As to that the Payment of Wages Act is a statute which, while it may not relate to shops, relates to a class establishments, that is to say, industrial establishments. But it is contended, the law referred to under S 1(3)(b) must be a law which relates to both shops and establishments such as the Punjab Shops and Commercial Establishments Act, 1958. It is difficult to accept that contention because there is no warrant for so limiting the meaning of the expression "law" in S.1(3)(b). The expression in comprehensive in its scope, and can mean a law in relation to shops as well as separately, a law in relation to establishments or a law in relation to shops and commercial establishments and a law in relation to non-commercial establishments. Had S.1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a state relating to shops and establishments, both commercial and non commercial. The Punjab Shops and Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliaments been, when enacting S.1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression "establishments unqualified". We have carefully, examined the various provisions of the Payment of Gratuity Act, and we are unable to discern any reason for giving the limited meaning to S.1(3)(b) urged before us on behalf of the appellant. S.1(3)(b) applies to every establishment within the meaning of any law for the time being in force in relation to establishments in a State. Such an establishment would include an industrial establishment within the meaning of S.2(ii)(g) of the Payment of Wages Act..."
15. The Supreme Court vide its judgment in Christian Medical College Hostel Employees' Union and another Vs. Christian Medical College, Vellore Association and others reported in (1987 (4)SCC 691) held that the character of an employee is not relevant in deciding the application of a labour enactment such as the Industrial Disputes Act. The following passage found in para 18 is reproduced below:-
"18. ...... The International Covenant on Economic, Social and Cultural Rights, 1966 which is a basic document declaring certain specific human rights in addition to proclaiming the right to work as a human right treats equitable conditions of work, prohibition of forced labour, provision for adequate remuneration, the right to a limitation of work hours, to rest and leisure, the right to form and joint trade unions of one's choice, the right to strike etc., also as human right. The preamble to our Constitution says that our Country is a Socialist Republic. Article 41 of the Constitution provides that the State shall make effective provision for securing right to work. Article 42 of the Constitution provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Article 43 of the Constitution states that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers agriculture, industrial or otherwise work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management. Even the management of a minority educational institution has got to respect these rights and implement them. Implementation of these rights involves the obedience to several labour laws including the Act which is under consideration in this case which are brought into force in the country".
16. Therefore, the authority will have to go into the question whether the establishment of the temple running various Lodges, Wedding Halls and letting out shops and the employees engaged for maintenance and administration of those activities will be covered by the term 'establishment' under any law time being in force and consider the application of the Payment of Gratuity Act.
17. Further, a Division Bench of this Court vide its judgment in Management of SIET Women's College Vs. Mohamed Ibrahim reported in (1992 WLR
155) went into the entire issue and held that even a minority College is covered by the provision of the Payment of Gratuity Act.
18. Therefore, the claim of the contesting third respondents cannot be lightly brushed aside. It require deeper examination by the appellate authority. Assuming even if a particular establishment can held to be an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, and ipso facto it will not be covered by the Payment of Gratuity Act. Still the question of coverage will have to be considered in the light of the definition of Section 1(3)(b) of the Payment of Gratuity Act, as explained by the judgment of the Supreme Court in 1981 (1) LLJ 354 in State of Punjab Vs Labour Court, Jullunder and others.
19. The Supreme Court in its decision relating to Workman of Tirumala Tirupathi Devasthanam Vs. Management and another reported in 1980(1) SCC 583 dealt with the application of payment of Bonus Act in respect of the transport workers employed by the Tirupathi Devasthanam and remanded the dispute to the Tribunal to consider several issues before dealt the applicability of the Act. The following passage found in para 2 may be usefully extracted:-
"2. The Tirumala Tirupathi /Devasthanam, a vast and unique religious organisation in the country, is certainly not founded for making profit and attracts people who want to offer worship to Shri Venkateshwara but then the specific question with which we are concerned is whether the transport operation by the administration falls within the category of institutions within the meaning of Section 32(5)(c). Is the Transport Department so merged in an integrated with the Devasthanam as to be incapable of independent identity? Is this Transport Industry run by the Devasthanam sufficiently spread as to be treated as an institution in itself? There is no doubt, as the Tribunal has rightly held that it is an industry but the further question arises whether it is an institution in the context and within the text of the Payment of Bonus Act. This question has not been properly appreciated by the Tribunal. Secondly, assuming that it is an institution, it does not necessarily follow that Section 32 is excluded. On the other hand, there must be proof that the Transport Department (a) is an institution; and (b) established not for the purpose of profit. The Tribunal has not correctly appreciated the import of this latter requirement. It has been found that profits made i some years are ploughed back whatever that may mean. It is also found that the motive for running the industry of transport was to afford special facilities for the pilgrims. These by themselves do not clinch the issue whether the institution has been established not for purposes of profit, nor are we satisfied that merely because in the administrative report of the Devasthanam, there is mention of the transport establishment as a remunerative enterprise, that is decisive of the issue".
20. Under these circumstances, all the Writ Petitions will stand dismissed. The petitioner is directed to deposit the entire Gratuity amount before the first respondent and on such deposit, the first respondent will number the appeals and after notice to the contesting respondents and take up the appeal for hearing. If the petitioner Management fails to deposit, as per under Section 7(7) of the Act, within a period of four weeks from the date of receipt of a copy of this order the appeals filed by them will automatically lapse. The contesting the third respondents will be at liberty to execute the orders of the 2nd respondent in the manner known to law. No costs. Consequently, connected miscellaneous petitions are closed.
Mpk To
1.The Joint Commissioner of Labour (Appellate Authority) under the Payment of Gratuity Act, Anna Nagar, Madurai-20.
2.The Assistant Commissioner of Labour, Competent Authority under the Payment of Gratuity Act, Tirunelveli.