Bombay High Court
Sheikh Mehmood S/O Abdul Mannan vs M/S Universal Medikit Private Ltd., ... on 8 July, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
58-J--WP-4852-18 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4852 OF 2018
Sheikh Mehmood s/o Abdul Mannan
Aged 60 years, Occupation Nil
R/o Darziline, Chaoni,
Near Shive Mandir, Nagpur, 440013 ...Petitioner
-vs-
1. M/s Universal Medikit Private Ltd.
A Limited Company incorporated and
registered under the Companies Act, 1956
having its registered office at 'Manisha Plaza'
Sonapur Lane, LBS Marg, Kurla (W)
Through Head Office at Shanti Nagar,
Nagpur 44 00 02, Through its
Authorized signatory, Siraj Ahmad Ansari
s/o Abdul Rehman
2. Zakir S. Vali,
Chairman, Universal Madikit Private Ltd.
545, Shanti Nagar, Nagpur 44 00 02
3. The Member,
Industrial Court Maharashtra,
Nagpur Bench, Civil Lines, Nagpur ... Respondents
Dr A. H. Jamal, Advocate for petitioner.
Shri A. J. Pathak, Advocate for respondent Nos.1 and 2.
Smt A. R. Kulkarni, Assistant Government Pleader for respondent No.3.
CORAM : A. S. CHANDURKAR, J.
DATE : July 08, 2019.
Oral Judgment :
The correctness of an order passed by the Industrial Court directing the complainant to deposit the amount of gratuity received by him in Court till his challenge to the order of termination is adjudicated is under ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 2/9 challenge in this writ petition.
Rule. Heard finally with consent of counsel for the parties. The challenge raised in the present writ petition is to the order passed by the Industrial Court on 29/06/2018 allowing the revision application that was preferred by the respondent Nos.1 and 2 and directing the petitioner-complainant to deposit the amount of gratuity received by him within a period of two months from the date of its order in the light of the fact the petitioner had chosen to challenge the order of termination issued to him.
2. The facts in brief are that it is the case of the petitioner that he was appointed as a Typist on 29/07/1982 with the respondent Nos.1 and 2. He was subsequently promoted as Medical Representative in the year 2003. His services came to be terminated in the year 2005. He therefore filed an application under provisions of the Payment of Gratuity Act, 1972 (for short, the said Act) before the Controlling Authority seeking determination of the amount of gratuity that was liable to be paid by the respondent Nos.1 and 2 to him. The Controlling Authority passed an order directing the respondent Nos.1 and 2 to pay the amount of gratuity of Rs.97,405/- with interest to the petitioner. The respondent Nos.1 and 2 had filed Writ Petition No.853/2010 challenging the order passed by the Controlling Authority on the ground that the petitioner had not accepted the order of termination but had in fact filed ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 3/9 a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 challenging the order of termination which was pending. This Court after observing that the respondent Nos.1 and 2 had not challenged the order of the Controlling Authority by filing an appeal so as to avoid the condition of pre-deposit refused to exercise writ jurisdiction. The appeal filed by the respondent Nos.1 and 2 thereafter challenging the order passed by the Controlling Authority was dismissed.
3. In the complaint that was filed by the petitioner challenging the order of termination, the respondent Nos.1 and 2 filed an application for dismissal of the complaint on the ground that the petitioner had approached the Controlling Authority under provisions of the said Act seeking payment of gratuity on the ground that his services had been terminated. Since the amount of gratuity had been directed to be paid there was no question of going into the aspect of termination of the petitioner's services. The said application filed below Exhibit-12 was however rejected on 16/04/2012. The respondent Nos.1 and 2 thereafter filed another application below Exhibit-61 before the Labour Court seeking a direction that the petitioner should deposit the amount of gratuity and terminal benefits received by him as those benefits had been received by accepting the order of termination. This application was opposed by the petitioner and the Labour Court by its ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 4/9 order dated 17/02/2018 rejected that application. Being aggrieved the respondent Nos.1 and 2 filed revision application and the learned Judge of the Industrial Court proceeded to hold that the petitioner had accepted the amount of gratuity on the premise that his services had been terminated. As gratuity would be payable under Section 4 of the said Act only on termination of services, as an equitable relief the amount of gratuity received by the petitioner ought to be deposited and only on such deposit being made the adjudication of the complaint was directed to proceed. Being aggrieved by this order the petitioner has challenged the same.
4. Dr A. H. Jamal, learned counsel for the petitioner submitted that the Industrial Court was not justified in directing the petitioner to deposit the amount of gratuity received by him. The order directing the employer to pay gratuity had attained finality and it had been held by the Controlling Authority that the petitioner was entitled to receive the amount of gratuity. As the writ petition filed by the respondent Nos.1 and 2 challenging that direction had been dismissed followed by dismissal of the appeal by the Appellate Authority, it was not open for the Industrial Court to have gone into that aspect and hence the petitioner could not have been directed to deposit the amount of gratuity rightly received by him. It was thus urged that such direction as issued by the Industrial Court was not sustainable. ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 5/9
5. On the other hand Shri A. J. Pathak, learned counsel for the respondent Nos.1 and 2 supported the impugned order. Referring to the provisions of the said Act and especially Sections 4(1) and 7(1) of the said Act it was submitted that the right to receive gratuity and the entitlement to challenge the order of termination cannot be permitted to go together. Gratuity would be payable only after termination of services and if an employee was aggrieved by the order terminating his services and had sought to challenge the order terminating his services, he would be required to await adjudication of those proceedings before claiming gratuity. Placing reliance on the decision in Satyandrabhai B. Shah vs. Torrent Power Ltd. and anr. 2017 Lab.I.C. 865 it was submitted that the direction issued by the Industrial Court for depositing the amount of gratuity was not liable to be interfered with. He further submitted that having accepted the amount of gratuity without any protest, the order of termination could not have been subjected to challenge thereafter. In that regard he referred to the decisions in Ramesh Chandra Sankla etc. vs. Vikram Cement etc. AIR 2009 SC 713, Man Singh vs. Maruti Suzuki India Ltd. And anr. 2012 AIR SCW 2488 and Motiram s/o Kautikrao Tekale and ors. vs. State of Maharashtra and ors. 2017(3) Mh.L.J. 853 It was thus submitted that there was no reason to interfere with the order passed by the Industrial Court. ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 6/9
6. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. Under provisions of Section 4(1) of the said Act, gratuity is payable to an employee on termination of his employment after he has rendered continuous service for not less than five years either on his superannuation or retirement or resignation or on account of his death or disablement due to any accident or disease. The words "on the termination of his employment after he has rendered continuous service ...." in Section 4(1) indicate such continuous service having been rendered on the basis of which the entitlement to gratuity springs. Section 4(6) specifies the contingencies when gratuity stands forfeited. Section 2(q) defines expression "retirement" to mean termination of the service of an employee otherwise than on superannuation. On a combined reading of the provisions of Section 2(q) and 4(1)(b) of the said Act it becomes clear that gratuity would be payable to an employee on termination of his services after having rendered such continuous service. In other words unless the services of an employee are terminated he would not be entitled to seek gratuity. Under Section 7(2) of the said Act it is the duty of the employer to determine the amount of gratuity as soon as it becomes payable. The consequences of not paying amount of gratuity within a period of thirty days from the date it becomes payable have been further provided.
From the aforesaid provisions it becomes clear that the ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 7/9 entitlement to receive gratuity is only after the employment of the employee has come to an end by the modes prescribed therein which includes termination of services. If the employee is aggrieved by the order of termination and thus avails legal remedy available to him to challenge the order of termination, the relief that he would be seeking is of reinstatement in service. Relationship of employer-employee would therefore be sought to be continued in this process. In such situation question of paying gratuity would not arise as the termination of services has not been accepted by the employee and the action has been put to challenge. A somewhat similar issue was considered by the learned Single Judge of the Gujarat High Court in Satyandrabhai B. Shah (supra). It was held therein that when the employee does not accept the order of dismissal and challenges the same, during pendency of such dispute the claim for gratuity would be premature as there is every likelihood of the order of dismissal being set aside and the employee being directed to be reinstated. It is found that the aforesaid position does arise from a combined reading of the provisions of Sections 2(q), 4(1) and 7(2) of the said Act.
7. Another aspect of the matter is with regard to accepting benefits under provisions of the said Act and then seeking to challenge the very basis for entitlement to receive benefits under the said Act. It is well settled that gratuity has been held to be a gift for services rendered. It has infact been ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 8/9 recognised as a legitimate retiral benefit earned on account of services rendered. In Ahmedabad Pvt. Primary Teachers' Association vs. Administrative Officer and ors. AIR 2004 SC 1426 it has been observed that the expression "gratuity" suggests that it is a payment given to an employee on discharge, superannuation or death. It is a sort of financial assistance to tide over post retirement hardships and inconveniences. If aforesaid is the object behind payment of gratuity it becomes obvious that these benefits are liable to be received provided the employee accepts the termination of his services resulting in putting an end to the relationship of employer-employee. It cannot be conceived that on one hand the employee disputes the factum of termination of his services and on the other hand also seeks to receive benefits to which he would be entitled only if his services were terminated. Reference in this regard can also be made to the observations in Management of Goodyear India Ltd. vs. K. G. Devessar (1985) 4 SCC 45 wherein it was observed that gratuity has to be paid to those persons whose employment comes to an end after coming into force of the said Act.
Thus from the aforesaid it is clear that the petitioner was not justified in refusing to deposit the amount of gratuity as he has sought to challenge the order of termination. In the aforesaid legal backdrop no fault can be found with the equitable order passed by the Industrial Court directing the petitioner to deposit the amount of gratuity received by him ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 ::: 58-J--WP-4852-18 9/9 pending adjudication of his complaint challenging the order of termination.
8. In that view of the matter there is no case made out to interfere in writ jurisdiction. The writ petition stands dismissed. Rule stands discharged with no order as to costs.
JUDGE Asmita ::: Uploaded on - 17/07/2019 ::: Downloaded on - 14/04/2020 03:03:55 :::