Madhya Pradesh High Court
Hope Textiles Ltd. vs Smt. Kalawatibai on 29 November, 2017
-1-
Writ Petition No.4832/2017
Indore, dt. 29/11/2017
Shri Prateek Patwardhan, learned counsel for the petitioner has
drawn the attention of this Court towards order dated 10/10/2017
passed in Writ Petition No.4832/2017 (Hope Textiles Ltd. Vs. Smt.
Meera Bai) and the following order has been passed in an identical
case:-
"Shri S.C.Bagadia, learned Senior Counsel with Shri Prateek
Patwardhan, counsel for the petitioner.
This court by the previous order had allowed the application
for amendment but the amendment has not been incorporated,
instead an I.A. seeking permission to file the amended petition has
been filed but no amended petition has been filed with the I.A..
Considering the circumstances of the case, arguments on
admission and interim relief is heard taking into account the plea
sought to be incorporated by way of amendment.
This order will govern the disposal of W.P.Nos.4824/2017,
4827/2017, 4828/2017, 4829/2017, 4830/2017 and 4834/2017 since
it is submitted by the counsel for the petitioner that all these writ
petitions involve the same issue in identical facts situation.
For convenience facts have been noted from
W.P.No.4824/2017.
By these writ petitions, the petitioner-Hope Textitles Ltd. has
challenged the order of the Controlling Authority under the Payment
of Gratuity Act dated 24.10.2013 and the appellate order dated
23.5.2017.
Brief facts are that respondent was an employee of the
petitioner-company and had retired from service on reaching the age of superannuation on 28.2.2002. He had filed an application under section 7(1) of the Payment of Gratuity Act before the controlling authority and reply was submitted by the petitioner and the controlling authority after permitting the parties to lead evidence had passed the order dated 4.1.2012. Thereafter on an application for review filed by the petitioner, the order was partly reviewed vide order dated 24.10.2013. Petitioner had preferred an Appeal against this order and the appellate authority vide order dated 23.5.2017 has dismissed the Appeal.
Learned counsel appearing for the petitioner submits that the amended section 2A of the Payment of Gratuity Act will not apply because the said section has no retrospective application. He further submits that authorities have committed an error in determining the last drawn salary of the respondent.
I have heard learned counsel for the petitioner and perused the record.
In the identical writ petition being W.P.No.3720/2011(S) (Hope Textitles Ltd. Vs. Nemichand) filed by the petitioner against the similar order, the issue relating to applicability of section 2A of Payment of Gratuity Act has been considered and it has been held that amended section 2A will apply.
-2-This Court in the case of Nemichand (supra) has held as under:-
7/ The Section 2(c) of the Act has been amended and Section 2A has been inserted by the Act No.26 of 1984 with effect from 11.2.1981. The amended Section 2(c) and Section 2A read as under :-
"2. Definitions .-In this Act, unless the context otherwise requires.-
(a) *****************************
(b) *****************************
(c) "continuous service" means continuous service as defined in section 2A;
2A. Continuous service .- For the purpose of this Act.-
1. an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act;
2. where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer-
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days, in the case of any employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) two hundred and forty days, in any other case;
(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of an -3- employee employed below the ground in a mine or in an establishment which works for less than six days in a week;
and
(ii) one hundred and twenty days, in any other case.
[Explanation.-For the purpose of clause (2) the number of days on which an employee has actually worked under an employer shall include the days on which i. has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
ii. he has been on leave with full wages, earned in the previous year;
iii. he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and iv. in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]
1. where an employee, employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period.]"
8/ The argument of the counsel for the petitioner that the aforesaid amended Section 2A is prospective in nature and it will not apply to the service rendered prior to amendment, can not be accepted in view of the expressed language of the amended section. Sub- section 1 of the amended Section 2A expressly states that "whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act." The accepted principle of interpretation is that the expressed language of a statute can not be ignored. Even otherwise it is a welfare legislation, which is to be interpreted keeping in view the object of the Act.
9/ The above view is supported by the judgments relied upon by the counsel for the respondent of the Madras High Court in the matter of Management, Korakundah Estate, Nilgiris Vs. Sagunthala (Smt) and others reported in 2004 LLR 222 and the Karnataka High Court in the matter of Bangalore Metropolitan Transport Corporation, Central Office, Bangalore Vs. Dy. Labour Commissiner and Appellate Authority under the P.G. Act, Bangalore and Ors. reported in -4- 2009 LLR 861, wherein the period of continuous service rendered prior to the date of amendment has been calculated applying the amended provisions.
10/ Learned counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Lalappa Lingappa and others Vs. Laxmi Vishnu Textile Mills Ltd. reported in AIR 1981 SC 852, but the said judgment is of no help to him since in the said judgment the un-amended Section 2C defining the continuous service has been examined. The said judgment may have necessitated the amendment in the definition of continuous service in the Act but on account of the said judgment it can not be held that the amended provision will not apply to the service rendered prior to the amendment. Learned counsel for the petitioner has also placed reliance upon the judgment of the Supreme Court in the matter of Govinddas and others Vs. The Income-Tax Officer and another reported in AIR 1977 SC 552 and in the matter of Bihar State Council of Ayurvedic and Unani Medicine Vs. State of Bihar and others reported in AIR 2008 SC 595 in support of his submission relating to the prospective application of the amended provision but those judgments relate to the different nature of amendment in the Income Tax Act and Indian Medicine Central Council Act, where the language of the amendment was not similar to the one as in the present case and the object of enactment was also different.
11/ Keeping in view the aforesaid, the objection of the petitioner that the amended Section 2A of the Act will not apply to the services rendered prior to the amendment, is rejected. The Authorities under the Act have not committed any error in calculating the continuous service rendered by the employees concerned applying the amended provisions as contained in Section 2A of the Act."
Having regard to the above order, argument of learned Senior Counsel for the petitioner that amended section 2A will not apply cannot be accepted.
So far as another ground raised by the counsel for the petitioner that the last drawn salary has wrongly been determined is concerned, the order dated 4.1.2012 passed by the controlling authority reveals that the petitioner had not filed any document to controvert the last drawn salary disclosed by the respondent, therefore taking note of this fact in the concluding paragraphs of the order, controlling authority had determined the last drawn salary. Though the petitioner had filed a review against this order but review order dated 24.10.2013 reveals that no such ground disputing the last drawn salary was raised by the petitioner in review. Before the appellate authority also, no arguments were advanced by the petitioner disputing the last drawn salary arrived at by the controlling authority. Even before this court the petitioner has not filed any document on the basis of which it can be held that the last drawn salary arrived at by the controlling authority is erroneous in any manner.
-5-Having regard to the aforesaid, I am of the opinion that no case for interference in the order of controlling authority or appellate order is made out.
The writ petitions are accordingly dismissed. Signed order be kept in the record of W.P.No.4824/2017 and a copy of this order be placed in the record of connected writ petitions."
Resultantly, in light of the aforesaid oder, the present writ petition also stands dismissed. No case for interference, with the order passed by the Controlling Authority or the Appellate Authority, is made out.
The writ petition is accordingly dismissed. Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej Tej Prakash Vyas 2017.12.01 11:24:42 -08'00'