Gratuity Payable only if employee put in 5 years of service – HC

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/11/2011

W.P. (MD) No. 4112 of 2009  &  M.P.(MD). No. 1 of 2009

R.K.V. Govindaraj

Vs.

1. V.Chellaiah

2. The Assistant Commissioner of Labour,

3. The Joint Commissioner of Labour,  Appellate Authority,  Madurai.                        

 PRAYER

Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorari calling for the records pertaining to the impugned order, dated 31.03.2009 passed in PGA No. 55 of 2008 on the file of the third respondent and quash the same.

ORDER

The petitioner is the lorry transport operator. In the present writ petition, he has come forward to challenge an order passed by the third respondent, the appellate authority cum Joint Commissioner of Labour, under the Payment of Gratuity Act, 1972. The said authority dismissed the petitioner’s appeal in P.G.A.No. 55 of 2008 and confirmed the order passed by the second respondent, the controlling authority under the Payment of Gratuity Act, 1972 (hereinafter referred as the Act) in P.G.No. 90 of 2007. Aggrieved by the two orders, the writ petition came to be filed.

2. The writ petition was admitted on 06.05.2009. Pending the writ petition, this Court granted an interim stay.

3. On notice from this Court, the first respondent has filed a counter affidavit dated 05.07.2009 and also filed a copy of Ex.P2 filed before the controlling authority.

 3. The facts leading to the filing of the case are as follows

i) The first respondent filed a claim petition before the second respondent seeking payment of gratuity for the period, which he has rendered services to the petitioner’s lorry transport, from 01.04.1991 to 19.04.2007, on which date he had voluntarily stopped himself from services. He claimed gratuity for a period of 10 years and a monthly salary of Rs.3,600/-. The total gratuity claim was Rs. 28,800/-. The said application filed by the first respondent was taken on file by the second respondent as P.G.No. 90 of 2007 and notice was issued to the petitioner.

ii) The petitioner filed a counter statement contending that the first respondent was not an employee and he never worked in their lorry transport for 16 years. His monthly salary claim of Rs. 3,600/- was illegal and he was only a casual labourer engaged for loading and unloading work on commission basis.  The application was mala fiedly done at the instance of a political parties with evil intention.

iii) The second respondent recorded the evidence of the first respondent and on his side three documents were filed and marked as Ex.P.1 to Ex. P3. Ex. P2 is the proceedings issued by the Tahsildar, Sattur, dated 19.04.2007 recording the peace committee meeting conducted by him with the petitioner and the Trade Unions working in the transport.

iv) The authority found that as per Ex. P2 there are 11 workers. Ex. P2 is the minutes recorded in the peace committee meeting, held on 19.04.2007 which says that in respect of the petitioner’s lorry service, 6 workers belong to DMDK will be allowed to function and three other workers who were working in the shed namely Murugan, Madasamy and Mariappan will be recalled and allowed to  resume their work. In the place of Karuppiah, who has stopped the work due to health reason, one Mani will be allowed to work. In the place of the first respondent one other person belonging to CITU Union will be admitted. Therefore, on the basis of those admission, the authority recorded there are 11 workers and hence the payment of Gratuity Act will apply.

v) With reference to the services, it was found that the first respondent’s claim for 16 years of service was not controverted by any document and he was admittedly removed from service on 19.04.2007 even as per Ex. P2 and therefore, he recorded the finding that he has worked for 16 years.

vi) On the question of monthly salary of Rs. 3,600/-, the authority found that the first respondent himself has admitted that he may get daily wages of Rs. 120/- per day and therefore, he fixed the wages at the rate of Rs. 120/- per day. It is in that view of the matter, he computed a sum of Rs. 28,800/- as due and payable to the first respondent.

vii) Aggrieved by the order passed by the second respondent, the petitioner preferred an appeal under Section 7(7) of the payment of the Gratuity Act and contended that reliance placed upon Ex. P2 was not permissible as it is only a photocopy of a document and under Section 65 of the Evidence Act such evidence is inadmissible and PW1’s  evidence was full of contradictions and no reliance can be placed upon.

viii) The said appeal was taken on file in PGA No.55 of 2008. As a condition precedent for preferring appeal the entire amount was deposited with the second respondent.

ix) The third respondent appellate authority ordered notice to the first respondent and after hearing both sides, he confirmed the order passed by the second respondent. He found there was no reason to reject the evidentary value of Ex. P2 and the fact that in the peace committee, the Tahsildar recorded that in the place of the first respondent some else will be appointed will show that he has been worked in the petitioner’s establishment till that date.

4. It must be noted that under Section 4(1) of the payment of Gratuity Act, a gratuity shall be payable to an employee on the contingency noted therein. Section 4(1)(b) of the Gratuity Act enables an employee to receive gratuity even if he had resigned from service and the only condition is that he must put in 5 years of service.

5. In the present case, under Ex.P2, the petitioner himself has stated that in the place of the first respondent some other persons will be taken to service, which means there is no dispute regarding the employment of the first respondent. Even in the counter filed before the second respondent, the petitioner has only stated that the first respondent was engaged on casually.

6. It is seen that in case of any dispute regarding gratuity, an employee who intends to avail gratuity himself sent a notice to the employer under Form I prescribed under Rule 7(1) of the payment of Gratuity Rules. In the present case, the first respondent has sent a notice under Form-I on 02.06.2007 by registered post with acknowledgement due, but the petitioner refused to receive the said notice. The returned tapal was produced before the authority.  If an employee claimed gratuity under Form-I and the employer repudiates the same,  he is bound to issue Form-M prescribed under Rule 8(1)(2).

7. In the present case, the petitioner employer did not give any such notice and its creates a strong impression on the mind of the second respondent and in the absence of the petitioner not repudiating the claim of the workman and even refusing to receive the statutory notice, he took adverse notice on the conduct of the petitioner.  After filing a counter statement before the second respondent, there is no attempt made by the petitioner to produce any statutory records to dispute the claim of the first respondent.

8. On the contrary, the petitioner did not even give any oral evidence to repudiate the claim made by the first respondent. The contention that Ex.P2 was a photocopy inadmissible in evidence in terms of Section 65 of the Indian Evidence Act is concerned, the power of the controlling authority has set out under Rule 12 of the Tamil nadu Payment of Gratuity Rules, 1973, wherein the authority is required to conduct an enquiry of the case and record evidence, examination of documents and after enquiry, he may pass orders and he has to record a finding whether an amount is payable to the employee. The relevant  Rule only provides a summary procedure and the petitioner cannot read into the rules as a procedure which is contemplated in a regular Court.

9. In the present case, while the first respondent has satisfied the statutory obligation by sending a prior notice and after the same, filed appropriate application and also given oral evidence and produce whatever documents that were available on his side, it is the petitioner, who has disregarded his obligation in repudiating the case  of the first respondent except by stating that Ex. P2 is a photocopy of the document, the contents of the document was not disowned by the petitioner.

10. Under the said circumstances, It is well open to the second respondent to compute the amount in favour of the first respondent and even in the appeal except raising some grounds, there was no attempt made by the petitioner to produce any document contrary to Ex. P2 and to show that peace committee meeting held before the Tahsildar never took place. There is no case made out by the petitioner to interfere with the impugned order. Hence, the writ petition stands dismissed. The first respondent is entitled to withdraw the amount lying in the deposit with the second respondent. Consequently, the connected miscellaneous petition is closed. No costs.

NF