Madras High Court
M/S. A & F Overseas Trade Ltd vs The Appellate Authority Under The ... on 1 October, 2020
Author: P.D. Audikesavalu
Bench: P.D. Audikesavalu
W.P. No. 18128 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2020
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 18128 of 2018
and
W.M.P. No. 21412 of 2018
M/s. A & F Overseas Trade Ltd.,
Poraiyur Village, Villianur Commune,
Puducherry – 605 110. ... Petitioner
-vs-
1. The Appellate Authority under the Payment of Gratuity Act, 1972,
Puducherry, Deputy Commissioner of Labour,
Puducherry.
2. The Controlling Authority under the Payment of Gratuity Act,
Labour Officer [Enforcement],
Puducherry.
3. C. Vijayalakshmi
4. Union of India
Represented by the Secretary to Government,
Labour and Employment Department,
Shram Shakti Bhawan. Rafi Marg,
New Delhi – 110 001.
5. Union of India
Represented by the Secretary to Government,
Law and Justice Department,
4th Floor, A-Wing, Shastri Bhawan,
New Delhi – 110 001. ...Respondents
(R4 & R5 suo motu impleaded by order dated 14.08.2020
and amended as per order dated 01.10.2020)
https://www.mhc.tn.gov.in/judis/
1/26
W.P. No. 18128 of 2018
Prayer:- Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for records
pertaining to the First Respondent in Appeal No. 5 of 2017 dated 30.05.2018,
and order of the Second Respondent in P.G. No. 163 of 2016 dated 23.03.2017
and quash the same.
For Petitioner : Mr. T.D. Vasu
For Respondents : Mr. D.Ravichander,
Additional Government Pleader (Puducherry)
(for R1 and R2)
No appearance (for R3)
Mr. G.Karthikeyan,
Assistant Solicitor General of India
(for R4 and R5)
ORDER
(through video conference) Heard Mr. T.D.Vasu, Learned Counsel for the Petitioner, Mr. D.Ravichander, Learned Additional Government Pleader appearing for the First Respondents and Second Respondents, Mr. G.Karthikeyan, Learned Assistant Solicitor General of India appearing for the Fourth and Fifth Respondents and perused the materials placed on record, apart from the pleadings of the parties.
https://www.mhc.tn.gov.in/judis/ 2/26 W.P. No. 18128 of 2018
2. The Third Respondent, who had been employed as stitcher in the establishment of the Petitioner from 01.03.1989 onwards, had left service on 07.08.1999. Since the Petitioner failed to pay gratuity, the Third Respondent filed an application for payment of gratuity in P.G. No. 163 of 2016 under Section 7(4) of the Payment of Gratuity Act, 1972 (hereinafter referred to as the 'Act' for short) before the Second Respondent. The Petitioner took the plea that inasmuch as it had become a sick industrial unit with BIFR, the claim for payment of gratuity cannot be enforced. The Second Respondent did not accept the said contention of the Petitioner and held by order dated 23.03.2017 that the Third Respondent is entitled for payment of gratuity and taking her last drawn wages as Rs. 2,212/-, the amount of gratuity was determined as follows:-
Gratuity = Rs. 2,212 x 10 years x 15/26 = Rs. 12,761/- The Petitioner was required to pay the aforesaid sum of Rs. 12,761/- with interest from the date it had fallen due till payment. The Petitioner, thereafter, filed appeal under Section 7(7) of the Act before the First Respondent in Appeal No. 5 of 2017 against the aforesaid order in which for the first time a contention had been raised that the claim for gratuity was not been made by the Third Respondent within the time limit stipulated in Rule 10 of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as the 'Rules' for short). The First Respondent elaborately considered and rejected that contention and https://www.mhc.tn.gov.in/judis/ 3/26 W.P. No. 18128 of 2018 confirmed the order of the Second Respondent. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the aforesaid order.
3. The only contention raised by the Learned Counsel for the Petitioner in this Writ Petition is that the application for gratuity made by the Third Respondent could not have been entertained by the Second Respondent without passing any order condoning the delay in filing the same. It must be noticed here that when the Act came into force on 16.09.1972, an employee could make an application for payment of gratuity under the Explanation 7(4)(a) of the Act only after requiring the employer to deposit the gratuity amount and the employer had failed to do so. In that backdrop, Rule 10 of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as the 'Rules' for short), which were made in the exercise of powers under Section 15(1) of the Act, provides as follows:-
“10. Application to controlling authority for direction:-
(1) If an employer:-
(i) refuses to accept a nomination or to entertain an
application sought to be filed under rule 7, or
(ii) issues a notice under sub-rule (1) of rule 8 either specifying an amount of gratuity which is considered by https://www.mhc.tn.gov.in/judis/ 4/26 W.P. No. 18128 of 2018 the applicant less than what is payable or rejecting eligibility to payment of gratuity, or
(iii) having received an application under rule 7 fails to issue any notice as required under rule 8 within the time specified therein, the claimant employee, nominee or legal heir, as the case may be, may, within ninety days of the occurrence of the cause for the application, apply in Form ‘N’ to the controlling authority for issuing a direction under sub-section (4) of section 7 with as many extra copies as are the opposite parties:
Provided that the controlling authority may accept any application under this sub-rule, on sufficient cause being shown by the applicant, after the expiry of the specified period. (2) Application under sub-rule (1) and other documents relevant to such an application shall be presented in person to the controlling authority or shall be sent by registered post acknowledgement due.” However, amendments have been made by Act 25 of 1984 with effect from 01.07.1984 and Act 22 of 1987 with effect from 01.10.1987 by which the Act provides in Section 7(4)(b) that an employee may straight away make an https://www.mhc.tn.gov.in/judis/ 5/26 W.P. No. 18128 of 2018 application for payment of gratuity to the Controlling Authority for deciding the dispute arising out of the matter specified in clause (a) thereto, which includes non-payment of gratuity by the employer within the time limit after it had fallen due. In order to have a better understanding of the effect of those statutory amendments, a comparative study may be made to the provisions of clause (1) to (4) of Section 7 of the Act as it stood at the time of commencement of the Act and the subsequent amendments made, in the self-
explanatory tabular statement below:-
Provisions of Section 7 as it stood at the Provisions of Section 7 after the time of commencement of the Act on amendment made by Act 22 of 1987 with 16.09.1972 effect from 01.10.1987
7. Determination of the amount of 7. Determination of the amount of Gratuity:- Gratuity:-
(1) A person who is eligible for payment (1) A person who is eligible for payment of gratuity under this Act or any person of gratuity under this Act or any person authorised, in writing, to act on his behalf authorised, in writing, to act on his behalf shall send a written application to the shall send a written application to the employer, within such time and in such form, employer, within such time and in such form, as may be prescribed, for payment of such as may be prescribed, for payment of such gratuity. gratuity.
(2) As soon as gratuity becomes payable, (2) As soon as gratuity becomes payable, the employer shall, whether an application the employer shall, whether an application referred to in sub-section (1) has been made referred to in sub-section (1) has been made or not, determine the amount of gratuity and or not, determine the amount of gratuity and give notice in writing to the person to whom give notice in writing to the person to whom https://www.mhc.tn.gov.in/judis/ 6/26 W.P. No. 18128 of 2018 Provisions of Section 7 as it stood at the Provisions of Section 7 after the time of commencement of the Act on amendment made by Act 22 of 1987 with 16.09.1972 effect from 01.10.1987 the gratuity is payable and also to the the gratuity is payable and also to the Controlling Authority specifying the amount Controlling Authority specifying the amount gratuity so determined. gratuity so determined.
(3) The employer shall arrange to pay the (3) The employer shall arrange to pay the amount of gratuity, within such time as may amount of gratuity within thirty days from the be prescribed, to the person to whom the date it becomes payable to the person to gratuity is payable. whom the gratuity is payable.
(3-A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-
section (3) the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long term deposits, as that Government may, by notification specify:
Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the Controlling Authority for the delayed payment on this ground.
https://www.mhc.tn.gov.in/judis/ 7/26 W.P. No. 18128 of 2018 Provisions of Section 7 as it stood at the Provisions of Section 7 after the time of commencement of the Act on amendment made by Act 22 of 1987 with 16.09.1972 effect from 01.10.1987 (4) (a) If there is any dispute as to the (4) (a) If there is any dispute as to the amount of gratuity payable to an employee amount of gratuity payable to an employee under this Act or as to the admissibility of under this Act or as to the admissibility of any claim of, or in relation to, an employee any claim of, or in relation to, an employee for payment of gratuity, or as to the person for payment of gratuity, or as to the person entitled to receive the gratuity, the employer entitled to receive the gratuity, the employer shall deposit with the Controlling Authority shall deposit with the Controlling Authority such amount as he admits to be payable by such amount as he admits to be payable by him as gratuity. him as gratuity.
Explanation:- Where there is a dispute with (b) Where there is a dispute with regard regard to any matter or matters specified in to any matter or matters specified in Clause this clause the employee may make an (a), the employer or employee or any other application to the Controlling Authority for person raising the dispute may make an taking such action as is specified in clause application to the Controlling Authority for
(b). deciding the dispute.
(b) The Controlling Authority shall, after (c) The Controlling Authority shall, after due inquiry and after giving the parties to the due inquiry and after giving the parties to the dispute a reasonable opportunity of being dispute a reasonable opportunity of being heard, determine the amount of gratuity heard, determine the matter or matters in payable to an employee, and if as a result of dispute and, if, as a result of such inquiry any such inquiry any amount in excess of the amount is found to be payable to the amount deposited by the employer is found to employee, the Controlling Authority shall be payable, the Controlling Authority shall direct the employer to pay such amount or, as direct the employer to pay such amount as is the case may be, such amount as reduced by in excess of the amount deposited by him. the amount already deposited by the employer.
https://www.mhc.tn.gov.in/judis/ 8/26 W.P. No. 18128 of 2018 Provisions of Section 7 as it stood at the Provisions of Section 7 after the time of commencement of the Act on amendment made by Act 22 of 1987 with 16.09.1972 effect from 01.10.1987
(c) The Controlling Authority shall pay (d) The Controlling Authority shall pay the amount deposited, including the excess the amount deposited, including the excess amount, if any, deposited by the employer, to amount, if any, deposited by the employer, to the person entitled thereto. the person entitled thereto.
(d) As soon as may be after a deposit is (e) As soon as may be after a deposit is made under Clause (a), the Controlling made under Clause (a), the Controlling Authority shall pay the amount of the Authority shall pay the amount of the deposit- deposit-
(i) to the applicant where he is the (i) to the applicant where he is the
employee; or employee; or
(ii) where the applicant is not the (ii) where the applicant is not the
employee, to the nominee or heir of employee, to the nominee or, as the
the employee if the Controlling case may be, the guardian of such
Authority is satisfied that there is no nominee or heir of the employee if the
dispute as to the right of the applicant Controlling Authority is satisfied that
to receive the amount of gratuity. there is no dispute as to the right of
the applicant to receive the amount of
gratuity.
It could be noticed from reading together of clauses (2) and (3) of Section 7 of the Act that the employer has to make payment of the admitted amount of gratuity to the employee within a period of thirty days from the date on which it falls due, irrespective of whether the employee has made such claim. Further Section 7(3-A) of the Act fastens liability on the employer to pay simple https://www.mhc.tn.gov.in/judis/ 9/26 W.P. No. 18128 of 2018 interest thereon at such rate not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify. When the employer fails to make or there is shortfall in payment of gratuity, the employee is entitled to make an application for payment of gratuity to the Second Respondent under Section 7(4)(b) of the Act. The scheme of the Act as per the amended provisions clearly reveal that there is no period of limitation restricting the right of the employee to make such application to the Controlling Authority.
4. The legal position is well settled that a provision for limitation cannot be made by way of subordinate legislation when the parent enactment does not contemplate the same as held by the Hon'ble Supreme Court of India in Bharat Barrel and Drum Mfg. Co. Ltd., v. ESI Corpn., [(1971) 2 SCC 860]. Further, it is trite law that the subordinate legislation which is inconsistent with the parent enactment would be ultra vires and cannot have any effect.
5. It becomes evident that after the amendments made to the Act with effect from 01.10.1987, the period of limitation prescribed in Rule 10 of the Rules is in derogation of clauses (2), (3), (3-A) and (4) of Section 7 of the Act. As a consequence thereof, it would necessarily follow that the requirement to https://www.mhc.tn.gov.in/judis/ 10/26 W.P. No. 18128 of 2018 condone delay in filing the application for payment of gratuity in terms of Rule 10(1) of the Rules ceased to exist and resort to that procedure is not warranted. This view is fortified by the decision of this Court in M.Vairamuthu -vs- Regional Labour Commissioner (Order dated 21.10.2010 in W.P. (MD) No. 10377 of 2007 etc., batch), where it has been held as follows:-
“7. Though initially the IRE Limited wanted to contend delay and laches on the part of the workmen in moving the authority under the Payment of Gratuity Act, however, no serious submissions were made on that score. Hence it is unnecessary to deal with the issue elaborately except when dealing with W.P.(MD)No.10377 of 2007. Even otherwise, this court has already held that if there is unpaid gratuity, the workmen can move the authority and the prescription of limitation by rules is beyond the power conferred on the rule making authority.”
6. The Bombay High Court in H.Jayarama Shetty -vs- Sangli Bank Ltd., [(2005) 3 LLJ 637 (Bom)] has elaborately discussed this aspect of the matter as follows:-
“5. The second reason which weighed with the Appellate Authority was that the claim of the Petitioner for payment of gratuity was https://www.mhc.tn.gov.in/judis/ 11/26 W.P. No. 18128 of 2018 barred by limitation. The Petitioner submitted in his application that the breach on the part of the employer was of a continuous and recurring nature. The Petitioner, however, submitted that if the authority came to the conclusion that there was a delay, he would crave leave to file a separate application for the condonation. Counsel for the Petitioner has made a statement before the Court on instructions that there was no separate application for condonation.
6. Section 4 of the Payment of Gratuity Act, 1972 provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on superannuation or, as the case may be, on retirement, resignation, death or disablement. Sub-section (1) of Section 7 provides that a person who is eligible for the payment of gratuity shall send a written application to the employer, within such time and in such form, as may be prescribed, for the payment of gratuity. Sub-section (2), however, lays down that irrespective of whether an application as provided in sub-section (1) has been made or not, the employer shall as soon as gratuity becomes https://www.mhc.tn.gov.in/judis/ 12/26 W.P. No. 18128 of 2018 payable, determine the amount of gratuity and give a notice in writing to the person to whom the gratuity is payable and to the Controlling Authority specifying the amount of gratuity so determined. Subsections (3) and (3A) of Section 7 were substituted by Amending Act 22 of 1987 with effect from 1st October 1987.
Sub-section (3) provides that the employer shall arrange to pay the amount of gratuity within thirty days from the date on which it becomes payable to the person to whom gratuity is payable. Sub- section (3A) stipulates that if the amount of gratuity that is payable is not paid by the employer as specified in sub-section (3), the employer shall pay simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long term deposits. No interest is, however, payable if the delay in payment is due to the fault of the employee and the employer has obtained permission in writing from the Controlling Authority for delayed payment on that ground. Payment of interest on delayed payment of gratuity is the statutory norm and even if delay is due to the employee, the employer has to obtain permission of the Controlling Authority in writing on this ground without which gratuity must carry statutory interest. Sub-section https://www.mhc.tn.gov.in/judis/ 13/26 W.P. No. 18128 of 2018 (4)(a) then provides that if there is any dispute as to the amount of gratuity payable to an employee under the Act, or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity or as to the person entitled to receive the gratuity, the employer must deposit with the Controlling Authority such amount as he admits to be payable. Sub-section (4)(b) provides that upon there being a dispute with regard to any matter specified in clause (4)(a), the employer or employee or any other person raising the dispute may make an application to the Controlling Authority for deciding the dispute. The Controlling Authority has thereupon been empowered to adjudicate upon the dispute.
7. These provisions of the Payment of Gratuity Act, 1972 provide a statutory elucidation of the nature of gratuity as a terminal benefit. Under Section 4 of the Act, payment of gratuity to an employee is a mandate of the statute, on the termination of employment after continuous service for not less than five years. This mandate is subject to the limited exception which is carved out in sub-section (6) of Section 4 to which a reference would be https://www.mhc.tn.gov.in/judis/ 14/26 W.P. No. 18128 of 2018 made shortly hereafter. The employer is under a mandate and an obligation to determine the amount of gratuity that is payable as soon as gratuity becomes payable. The employer is under an obligation to arrange for the payment of the amount of gratuity within 30 days from the date on which it becomes payable to the person to whom is payable. After the amendment of 1987, a statutory provision has been made for the payment of interest. The employer can avoid that obligation to pay interest only if the delay in payment is due to a fault of the employee and if employer is granted permission in writing by the Controlling Authority for the delayed payment on that ground. These provisions emphasise that the determination of the amount and the payment of gratuity is the obligation of the employer. The employer has to make a determination of the gratuity which is payable whether or not an application has been made by the employee. The employer has to arrange payment.
8. These provisions have been interpreted by the Supreme Court in H. Gangahanume Gowda -vs- Karnataka Agro https://www.mhc.tn.gov.in/judis/ 15/26 W.P. No. 18128 of 2018 Industries Corpn Ltd., [2003 I CLR 705], where the Court held as follows:
"From the provisions made in Section 7, a clear command can be seen mandating the employer to pay the gratuity within the specified time and to pay interest on the delayed payment of gratuity. No discretion is available to exempt or relieve the employer from payment of gratuity with or without interest as the case may be. ... Payment of gratuity with or without interest as the case may be does not lie in the domain of discretion but it is a statutory compulsion. Specific benefits expressly given in a social beneficial legislation cannot be ordinarily denied."
The Supreme Court held that in view of the clear mandate of Section 7, no residual discretion vested in the High Court to relieve the obligation imposed on the employer of paying interest on account of the delayed payment of gratuity.
9. On behalf of the Respondent, however, reliance was sought to be placed on the rules framed under the Payment of Gratuity Act, 1972. These Rules, it must be noted at the outset, were framed https://www.mhc.tn.gov.in/judis/ 16/26 W.P. No. 18128 of 2018 prior to the Amending Acts of 1984 and 1987. The Payment of Gratuity Act, 1972, it may be noted, has made no provision for a specified period for the submission of an application to the Controlling Authority in Section 7(4)(b) of the Act. As contradistinguished from this, Section 7(7) provides for a specific period of limitation of sixty days for preferring an appeal to the appropriate Government against the decision of the Controlling Authority under Section 7(4). In Sitaram -vs- M.N.Nagrashana (AIR 1960 SC 260), the Supreme Court considered Section 10 of the Workmen's Compensation Act which provided a period of limitation to make a claim for compensation to the Commissioner but empowered the latter to condone delay for sufficient cause. This provision of the Act was held by the Supreme Court to be similar to Section 5 of the Limitation Act and the Court held that the explanation must cover the whole period of delay. In Gurunath Vithal Tamse -vs- National Textile Corporation [2002 I CLR 809] this Court held that significantly, the legislature had advisedly not specified any particular period of limitation for moving the Controlling Authority under the Payment of Gratuity Act, 1972. But the submission before the Court now on behalf of https://www.mhc.tn.gov.in/judis/ 17/26 W.P. No. 18128 of 2018 the the Respondent, is that the limitation which has been provided for in Rules 7 and 10 of the Rules framed under the Payment of Gratuity Act, 1972 was not brought to the attention of the Court in that case. Before dealing with this submission on first principle, it would be necessary to note that at least three High Courts have had occasion to consider the question. The Delhi High Court, in M.C.D. -vs- Nand Kishore [2003 (97) FLR 158], dealt with the submission that the Controlling Authority had not taken into consideration the delay of the employee in filing an application under the Payment of Gratuity Act, 1972. The Delhi High Court held that "the grievance of the appellant is misconceived as the non-payment of gratuity due to the Respondent was a continuing wrong and there was no question of any delay in approaching the Controlling Authority. A Learned Single Judge of the Kerala High Court in Neelakandan -vs- State of Kerala [2001 II CLR 448] adverted to the provisions of Section 7 of the Act as amended and held that while Rule 7 of the Gratuity Rules provides that an application be filed within a prescribed time, these provisions under the Rules "cannot of course, be taken as over reaching the provision of Section 7(2) of the Act". The Court held that perhaps https://www.mhc.tn.gov.in/judis/ 18/26 W.P. No. 18128 of 2018 the impact of the Amending Acts of 1984 and 1987 had not been taken notice of by the rule making body. Upon the amendment of Section 7, it has now unambiguously been laid down that an employer has a duty to pay gratuity whether or not an application is filed. The Payment of Gratuity Act is a piece of beneficial legislation and a liberal interpretation would have to be adopted since an employee, it was held, may not at times be aware of his rights. The Act imposes an obligation on the employer and it would not be open to the employer to benefit from a delay in making an application for the payment of gratuity. The Karnataka High Court in General Secretary, Vokkaligara Sangha, Bangalore -vs- R. Chandramouli [2002 II CLR 1070] noted that Rule 7(5) permits the entertainment of the applications for payment of gratuity after the expiry of the period specified and claim shall not be invalid merely because the claimant failed to present the application within the specified period.
10. The Rules framed under the Payment of Gratuity Act, 1972 provide for two separate periods of time in relation to the making of an application. The first under Rule 7 is an application to the https://www.mhc.tn.gov.in/judis/ 19/26 W.P. No. 18128 of 2018 employer within 30 days from the date on which gratuity becomes payable. Rule 7(5), however, provides that an application for payment of gratuity filed after the expiry of the period specified shall also be entertained by the employer if the applicant adduces sufficient cause for delay and no claim for gratuity shall be invalid merely because the claimant failed to present his application within the specified period. This must be in a juxtaposed with Section 7(2) which requires the employer to make a determination of gratuity payable and to furnish a notice to the employee and to the Controlling Authority as soon as gratuity becomes payable whether or not an application under Section 7(1) has been made. Clearly therefore, the employer cannot set up limitation as a defence on the ground that the application to him was not presented within thirty days. The clear answer to such a defence, if it is set up is that the employer is obliged to determine and make arrangement to pay gratuity whether or not an application is made. The second time period that is prescribed is under Rule 10. Rule 10 inter alia provides a period of 90 days for making an application before the Controlling Authority upon the employer failing to issue a notice as required under Rule 8 upon the receipt https://www.mhc.tn.gov.in/judis/ 20/26 W.P. No. 18128 of 2018 of an application from the employee under Rule 7. The delay under Rule 10 can be condoned by the Controlling Authority on sufficient cause being shown.
11. The rules which were framed in 1972 must be read in a manner which is consistent with the statutory provisions of Section 7 particularly after the amendments that were introduced by Amending Act 25 of 1984 (with effect from 1st April 1984) and by Amending Act 22 of 1987 (with effect from 1st October 1987). The provisions of Section 7 emphasise that the obligation is that of the employer to determine and to make arrangements for the payment of gratuity and upon his failure to do so, to pay interest at the rate which is statutorily prescribed. Even if the period that is prescribed in the Rules is taken into consideration, the Rules themselves lay down that the delay on the part of the employer, if any, can be condoned if sufficient cause is shown. A breach of the employer to comply with his obligation under section 7 provides a recurring and continuous cause of action. The Act is a piece of social welfare legislation and the employer cannot be permitted by reason of his own default in complying with his obligation to https://www.mhc.tn.gov.in/judis/ 21/26 W.P. No. 18128 of 2018 defeat the just entitlement of the employee. Finally, it may be noted that the employer has to determine and pay gratuity whether or not an application is filed to him. The filing of an application before the employer is not a condition precedent. Rule 7 makes procedural provisions for such an application. On receipt of an application under Rule 7, the employer has to issue a notice under Rule 8 either admitting the claim or to specify the reasons why he holds the claim inadmissible. It is thereafter that time is prescribed in Rule 10 for an application to the Controlling Authority. The making of an application under Rule 7 therefore invokes a chain of events in Rules 8 and 10. Once the making of an application to the employer is not mandatory under the provisions of Section 7(2) of the substantive provisions of the act, the limitation under the Rules which is triggered upon the filing of the application under Rule 7 can obviously not defeat the claim of the employee.” This Court is in agreement with the aforesaid views expressed.
7. At the same time, it also requires to be mentioned here that in an earlier decision in Madura Coats Ltd., -vs- Assistant Commissioner of Labour [(1993) 3 LLJ 923 Mad], it had been held that an application to condone delay https://www.mhc.tn.gov.in/judis/ 22/26 W.P. No. 18128 of 2018 would have to be first decided before the main application for gratuity is taken up for hearing and the said view taken has been approved in M.Devarajulu -vs- Assistant Commissioner of Labour [(1995) 1 LLJ 348 Mad] by the Division Bench of this Court. However, on a perusal of the said decisions, it is evident that the apparent inconsistency of Rule 10 of the Rules with Section 7 of the Act after the amendments made to the Act with effect from 01.10.1987 had neither been raised nor brought to the notice of the Court while deciding those cases. It is needless to recapitulate in this context that a precedent can be an authority only for what has been actually decided and not what may logically flow from it, as explained by the Constitution Bench of the Hon'ble Supreme Court of India in State of Orissa -vs- Sudhansu Sekhar Misra (AIR 1968 SC
647).
8. In view of the foregoing discussion, this Court does not find any infirmity requiring interference in the impugned order, which has to be upheld. The Third Respondent is at liberty to make necessary application for the withdrawal of the amount of gratuity that has been deposited by the Petitioner before the concerned authority.
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9. In the result, the Writ Petition is dismissed with the aforesaid observations. Consequently, the connected Miscellaneous Petition is closed. No costs.
01.10.2020 1/3 vjt/kv Index: Yes Note: Issue order copy by 11.01.2021.
To
1. The Deputy Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, 1972, Puducherry.
2. The Labour Officer (Enforcement), Controlling Authority under the Payment of Gratuity Act, Puducherry.
3. The Secretary to Government, Labour and Employment Department, Shram Shakti Bhawan.
Rafi Marg, New Delhi – 110 001.
4. The Secretary to Government, Law and Justice Department, 4th Floor, A-Wing, Shastri Bhawan, New Delhi – 110 001.
https://www.mhc.tn.gov.in/judis/ 24/26 W.P. No. 18128 of 2018 Copy to
1. M/s. A & F Overseas Trade Ltd., Poraiyur Village, Villianur Commune, Puducherry – 605 110.
2. C. Vijayalakshmi No. 33, Bahour Uruvaiyar Road, Mangalam Post, Villinaur Commune Puducherry.
https://www.mhc.tn.gov.in/judis/ 25/26 W.P. No. 18128 of 2018 P.D. AUDIKESAVALU, J.
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