M/s. Murlidhar Ratanlal Exports Limited vs The State of West Bengal and Ors.

The appellant challenges the judgment dated 16th June, 2016 passed by the learned Writ Court (S.J.) in W.P. no. 6913(W) of 2016 Lachman Shah @ Lachman Sa -vs- The State of West Bengal and Ors. on the grounds mentioned in the memorandum of appeal.

It appears that the employee retired after putting 39 years of service in the appellant company. His retiral dues, including gratuity, were not paid. The matter was agitated by the employee before the Controlling Authority under the Payment of Gratuity Act, 1972, Serampore, Hooghly. The application was registered as Case No. G-09/2009 Shri Lachman Shah -And- The Manager, M/s Muralidhar Ratanlal Exports Ltd. Unit : India Jute Mill, Serampore, Hooghly.

The Controlling Authority after appreciation of records and evidence found that the company failed to take any steps in support of its case like production of documents, deposition, cross examination for proving the allegations therein although several chances were offered to the employer for doing so. The Controlling Authority observed that notices were duly served on the company and they had submitted written statement on 10th September, 2009 but even after final order to close proceeding had been passed on 20th October, 2009 neither the company nor anyone on its behalf pursued the case. In the facts and circumstances, the Controlling Authority held and ordered thus: "The applicant in his evidence stated that he joined the service to the O.P. Company on 04.09.1967 and was superannuated on 21.07.2006 and during this period he served continuously for 38 years 10 months (which is equivalent to 39 years) without having any break-in-service. The applicant submitted three vital documents as Exhibits (1. Employment Card, 2. Wage slip, 3. Superannuation Notice) during his deposition dated 09.07.2009. In this regard the O.P. Company opined in the Written Statement that the applicant is entitled to get the gratuity for 28 years which amounts to Rs. 81,572.40/- (Rupees Eighty One Thousand Five Hundred Seventy Two and Paise Forty) only. Because the concerned applicant was working as Badli according to O.P.''s opinion but he did not produce any document in favour of his claim. In this context, it is further to be noted that the nomenclature, ''Badli'' is given just to deprive the concerned applicant from the Beneficial Legislation of the Gratuity Act, whereas both the permanent and Badli employees are standing on the same footing and on the same status doing the same perennial job together. It is worth mentioning that the Payment of Gratuity Act, 1972 does not envisage the term ''Badli''. The Act only states that an employee shall be deemed to be in continuous service under the employer 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, as actually worked under the employer for not less than Two Hundred and forty days (240 days) under Section 2A of this Act. Therefore, the gratuity calculation should be made during the ''Badli'' period also if and only if he has rendered service for 240 days for the said period of one year. The O.P. Co. disputed on the amount of last drawn wage (Rs. 2447.18/- for 96 hours) through written statement. On the other hand, the applicant adduced in his evidence Rs. 194.22/- per day as his last drawn wage which was supported by document (Exhibit-II-wage slip). But nothing was exhibited on behalf of the O.P. Company till date due to non-availability of records. Therefore, it is surprising claim of O.P. that the applicant is entitled for Payment of Gratuity for 28 years. Since the O.P. employer is the custodian of all vital document of his employee. It is not possible on the part of the poor illiterate like the applicant to procure all relevant documents like STL, Sick leave, etc. to prove the continuity of service. So, it is held that the applicant cannot be a victim of the circumstances just because of sheer negligence on the part of the O.P. Company towards preserving documentary evidences.

In view of the above facts as contained in the aforesaid paragraphs it is crystal clear that the applicant joined the O.P. Company on 04.09.1967 and superannuated on 21.07.2006 after rendering continuous service for 39 years. As such in no circumstances the O.P. Company can escape its statutory liability towards payment of Gratuity to the concerned applicant. It is a foregone conclusion that Gratuity is not a gratuitous payment dependent on the employers'' discretion but it is the employees'' right of return for long service.

Under these circumstances, I have nothing to disbelief the contention and demand of the applicant. Shri Lachman Shah who is entitled to gratuity for rendering 39 years of continuos service and O.P. is liable to pay the same to the concerned applicant within the prescribed time period. And his entitled amount of gratuity as per Sec. 4(2) of Payment of Gratuity Act, 1972 would be as follows:

Rs. 194.22*15*39= Rs.1,13,618.70/-

(Rupees One Lac Thirteen Thousand Six Hundred Eighteen and Paise Seventy) only.

(Rs. 194.22/- per day is the last wage drawn by the applicant and it was supported by Exhibit-II).

As the aforesaid amount was not paid within the prescribed time after superannuation (21.07.2006), the applicant is further entitled to get the amount by simple interest @ 10% p.a. w.e.f. 20.08.2006 to the date of Order (02.02.2010) as per Sec. 7(3A) under this Act.

-:ORDERED:-

Hence the application of the applicant, i.e. Shri Lachman Shah Singh for payment of gratuity is eligible for 39 years. The applicant is entitled to get Rs. 1,13,618.70/- (Rupees One Lac Thirteen Thousand Six Hundred Eighteen and Paise Seventy) only towards his payment of gratuity for the service rendered in the O.P. Company plus 10% interest as admissible under Section 7(3) of the Payment of Gratuity Act, 1972 w.e.f. 20.08.2006 till the date of Finding (i.e. 02.02.2010) which amounts to [Rs. 1,13,618.70/-+Rs. 39,199/-]=>Rs. 1,52,817.70/- (Rupees One Lac Fifty Two Thousand Eight Hundred Seventeen and Paise Seventy) only.

The O.P. i.e. the Manager, M/s. Muralidhar Ratanlal Exports Ltd., (Unit : India Jute Mill), Serampore, Hooghly is directed to pay Rs. 1,52,817.70/- (Rupees One Lac Fifty Two Thousand Eight Hundred Seventeen and Paise Seventy) only within 30 days i/d the law will take its own course. This is my Findings. This disposes of the application in Form ''N'' dated 29.12.2008 as submitted by the applicant.

No appeal was preferred by the employer company against the aforesaid order. However, when the matter was taken up by the workman in execution proceeding, an objection was preferred. The objection was disposed of by the Certificate Officer, Serampore, Hooghly by order dated 9th September, 2010 which reads: "Heard both C.D. & C.H.

I find no other reasons to deviate from what the Ld. Competent Authority has determined for payment of Rs. 1,52,817=70 paise as per order dt. 02.02.10.

Hence, I direct the Chief General Managaer, M/s Murlidhar Ratanlal Exports Ltd., Unit - India Jute Mill, Serampore, Hooghly to pay the said amount in full within up-to-date interest as per admissible rate 28/9/10 positively. Failing which appropriate legal action will be taken against him."

An appeal, arising out of Certificate case no. 23(M)/10-11, was preferred by the company against the aforesaid order, which was disposed of vide orders dated 17th March, 2011 and 8th June, 2011 by the learned District Collector/Appellate Authority, Hooghly. The Appellate Authority in the order held that he has no hesitation in dismissing the appeal in the facts and circumstances and upheld the order dated 20th October, 2009 passed by the Controlling Authority and the consequential order dated 9th September, 2010 of Certificate Officer, Seampore. Further it was directed that the C.D. company would pay the amount of gratuity to the respective employees along with 15% compound interest till the passing of the order. Liberty was given to the Certificate Officer, Serampore to execute the Certificate under section 14(a) or 14(c) of the Bengal Public Demands Recovery Act, 1913 in the event of non-compliance within 7 days of issue of the order.

It appears from record that the aforesaid order of the Appellate Authority was put to review by way of 33 review applications by the company M/s. Murlidhar Ratanlal Exports Ltd. Unit: India Jute Mill, Serampore, Hooghly. By order dated 24th June, 2011, all of which were dismissed with slight modification as noted in the order dated 17th March, 2011 vide memo. no. 181/1(38)-Con(D) dated 8th June, 2011 wherein it was erroneously observed in first para of the order of 17th March, 2011 that the representative of India Jute Mills was heard, stood suitably modified.

Despite dismissal of the review application and earlier orders passed in favour of the employee, the execution court did not proceed with the matter. Aggrieved, writ petition no. 6913(W) of 2016 was preferred by the employee wherein the Court vide its order dated 16th June, 2016 disposed of the writ petition holding thus: "It appears that the case is pending with the Certificate Officer for about five years. I dispose of the writ petition by directing the respondent No. 2 to expedite the process of recovering the amount determined by the Controlling Authority along with admissible interest from the respondent No. 3 company and to make payment thereof to the petitioner as early as possible, preferably within a period of 12 weeks from the date of communication of this order. The respondent No. 2 shall be entitled to take all the steps necessary for the recovery of the amount determined by the Controlling Authority.

Since this writ petition is being disposed of without calling for an affidavit all allegations made in the writ petition are deemed to have been denied.

There shall be no order as to costs.

Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date."

It appears from the grounds taken by the appellant company that some of the grounds are vexatious, e.g. ground nos. IV, V and VII wherein it has been averred that no evidence whatsoever was adduced by the employee which is incorrect and against the record.

From the narration of facts it appears that gratuity and other retiral dues of the employee has not been paid by the employer since 2006 and the employee has been made to run from pillar to post. The original order passed by the Controlling Authority had not been challenged anywhere and it is only the consequential orders passed in the execution proceeding and subsequent order passed on the review application has been challenged, which has dragged this litigation up to this stage in 2017.

We find that Writ Court had only directed the authority to dispose of the certificate proceedings within a period of 12 weeks from the date of communication. The order was also communicated to the authority. Therefore, it ought to have been acted upon by the Certificate Officer in letter and spirit by concluding the proceeding by now. Looking into the history of this case and the record we also find that great injustice has been caused to the employee for the employer had not challenged the order passed by the Controlling Authority under the Payment of Gratuity Act has only challenged subsequent orders passed in the execution proceeding and the review application etc. The authority also did not take any action in the matter even after the court ordered to conclude the recovery with a period of 12 weeks from the date of communication of the order dated 16th June, 2016. It appears that the executing court /authority has knowingly and willingly not complied with the order of this court and as such to be noticed for being proceeded with contempt of court. A litigation cannot be dragged for years together without challenging the original order.

For all the reasons stated above, we do not find any merit in the appeal and the same is dismissed along with the application for stay.

The Certificate Officer is directed to recover the amount with interest from the employer and pay the workmen concerned the said amount with interest within a period of one month from today and report compliance of the order to this Court.

We make it clear that the Certificate Officer may do all such things for recovery of the amount from the employer, including taking coercive method like attachment of property, particularly as provided under section 14 of the Bengal Public Demands Recovery Act, 1913. The Certificate Officer shall be present in Court on 27th March, 2017 to appraise the Court regarding the order having been complied with by him.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.