A GRATUITY APPEAL JUDGMENT BY ME IN 2016 WHICH WAS UPHELD BY A LEARNED SINGLE JUDGE AND ALSO THE DIVISION BENCH OF HON'BLE HIGH COURT,JHARKHAND

BEFORE THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL), DHANBAD &  APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972

PGA NO. (51)/2018-Dy CLC

PARTIES

Shri Rajendra Balmiki Prasad.S/o Late Bharat Lal,Quarter No.18, Sector-V,‘E’ Block,Bhuli Nagar,P.O. Bhuli,Dhanbad – 828104                                                                                APPELLANT

vrs

The Area Manager,Bhuli Town Administration of  M/s Bharat Coking Coal Ltd, P.O. Bhuli,Dhanbad - 828104                                                                                RESPONDENT 

APPERANCE

On behalf of the Appellant                           Sri Rajendra Balmiki Prasad  

On behalf of the Respondent                             Sri U.N.Lal,Advocate    

PRESENT

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),DHANBAD &APPELLATE AUTHORITY UNDER P.G. ACT,1972 

DECISION DATED 22ND JANUARY 2016 

           This is an appeal preferred under sub-section (7) od section 7 od the Payment of Gratuity Act,1972 (hereinafter referred to as the Act) by Sri Rajendra Balmiki Prasad, S/o Late Bharat Lal, Resident of Quarters No. 18, Sector-V. ‘E’ Block, Bhuli Nagar, P.O. Bhuli,Dhanbad-828104 (hereinafter referred to as the appellant) being aggrieved by the decision dated 14-08-2015 of the Assistant Labour Commissioner (Central),Dhanbad-I and Controlling Authority (hereinafter referred to as Controlling Authority) in P.G. Application No.36(16)/2013-E-6 declining the claim of the applicant for payment of balance amount of gratuity from the Area Manager, Bhuli Town Administration of M/s Bharat Coking Coal Limited,P.O. Bhuli,Dhanbad-828 104 (hereinafter referred to as the respondent). 

            The case of the appellant as per the memorandum of appeal and arguments made during hearing .is that he had filed an application in Form "N" for payment of difference amount of gratuity of Rs. 4,46,108.00. He had-been paid an amount of Rs. 1,42,749.75 only as gratuity in stead of Rs.6,28,108.00 which is based on the calculation of 34 years of service commencing from the, date of his appointment on 05-10-1978 and the amount of last wages  drawn on the date of his retirement i.e. 31-10-2012. The appellant clarified that his-claim was based on the award of the Central Government Industrial Tribunal No. 2 in Reference No. 48/82 dated 7-09-1982 which was confirmed by the Hon'ble High Court, Patna and Ranchi in different Writ Petitions and LPA filed by the respondent management and a bipartite agreement arrived between the  management and the concerned workmen. The core issue in the present appeal is to decide the length of service and then to determine the amount of gratuity payable to the appellant. '.The appellant argued during adducing his' evidence before the Controlling Authority that he had got exhibited as many as 20 documents which were filed on his behalf on 9th September 2014 with the list of documents marking a copy to the respondent. These documents were Award, Bipartite Agreement and several Orders of the Hon'ble High Court. The appellant stated that the respondent  while adducing evidence before the Controlling Authority expressed ignorance about the said Award, Order of the Hon'ble High Court and even the bipartite agreement but did not refute the said documents. The appellant emphasized that the Controlling Authority in his findings, did not consider and discuss the said vital documents whereas the learned Presiding Officer in his Award No. 48/82 has confirmed that year of the initial appointment of the appellant is 1978 and thus he is in continuous service from 05-10-1978.The said award has been confirmed by the management after the Orders of the Hon’ble High Courts in CWJC No.85/1984 by Order dated 09-05-1988 and in other orders. The appellant stressed that the respondent allowed him to rejoin/reinstate in service of the company from 18.02.2002  finally on the basis of the Order dated 13-02-2002 of the Hon'ble Jharkhand High Court in CMP 'No.598/2001. As such there remains no controversy that the appellant is not deemed to be in employment since 1978 irrespective of fact that the appellant was prevented by the respondent not to work in the intervening years despite the aforesaid award of the CGIT and subsequent  Orders of the Hon'ble High Court . 

:          The appellant concluded with a prayer to allow his appeal since the Order of the Controlling Authority is based on one side appreciation of the evidence of the opposite party or respondent declining consideration of the evidences/documents of the appellant. The appellant added that the Controlling Authority has failed to appreciate that the date of appointment and date of joining after date of reinstatement are two different things and the date of joining after the order of reinstatement cannot be taken as date of initial appointment. The Controlling Authority also fail to understand the respondent had filed several Writ Petitions and LPA challenging the award and the same were disposed of with directions to respondent and the Award was confirmed by the Hon’ble Supreme Court. The appellant finally requested to set aside the Order of the Controlling Authority. 

            The respondent in his comments/arguments on the memorandum of appeal has justified the decision of the Controlling Authority in not considering the payment of balance amount of gratuity to the respondent being the date of his appointment with effect from October 1978.The respondent questioned that the claim by the respondent was preferred as Rajendra Balmiki Prasad whereas in the Educational Certificate his name is appeared as Rajendra Prasad S/o Sri Bharat Lal. The respondent is claiming himself as the awardee of ward No.48/82 of C.G.I.T. No.II wherein his name is appeared as ‘Rajendra Balmiki’ at serial no.42.In the Matriculation Certificate his date of birth is shown as 24-03-1953 while the Apex medical Board has assessed his age as 50 years on 23-08-2002.His date of joining into service as per company’s record is 18-02-2002.The management has paid him the gratuity as per the services rendered by him from 18-02-2002 to 31-08-2012 for 10 years 6 months and 13 days  on the basis of last wages drawn Rs.865.15 per day to the tune of Rs.1,42,749.75 duly admitted. The appellant has been taken into employment  as per the decision of the Apex Court. The respondent submitted that the company was under BIFR and the Union, Bharat Shramik Sangh took up the matter by filing WP (L) No.816 of 2004 which was decided on 07-06-2006 with the observation that the petitioner is at liberty to seek consent of the BIFR for continuing with proceedings if so advised. The Certificate dated 27-08-1981 issued in respect of Sri Rajendra Prasad , S/o Sri Bharat Lal showing his date of appointment as October 1978 is fake and without dispatch no. In LPA No. 131 /98 (R), the Hon’ble High Court has set aside the payment of 9 per cent interest for the idle period.The management has paid the amount of Rs.50,000 on 12-08-2012 as the Order of the Hon’ble High Court in CMP No.598/01. The respondent clarified that no back wages was paid to the awardee concerned. The respondent also made clear that the management had erroneously shown the amount of gratuity as Rs.3, 19, 353.00 in the Written Statement and further rectified it vide letter no.9060-63 dated 7/8-9-12 showing the admissible amount of gratuity as Rs.1, 42, 749.00. The said amount was paid to the appellant vide cheque no. 088182 dated 11-10-2012 before two witnesses on 19-10-2012.The respondent argued that the appellant has not produced any document in support of his claim and the case of appellant is fit to be dismissed outrightly. 

           The appellant in his rejoinder on the comments of the respondent though accepted the contents which are matter of record but reiterated his contention as narrated in the memorandum of appeal. In addition, the appellant submitted the documents which have been discussed by him in the memorandum of appeal in support of his claim. The respondent too, in his arguments put similar views as detailed earlier in his reply on the memorandum of appeal. 

           The Controlling Authority, in his decision, has declined the claim of the appellant as he has failed to 'submit any proof of his appointment with effect from March 1978 (In Form "N" the date of appointment is mentioned as October 1978) and questioned the identity of the appellant as Rajendra Prasad or Rajendra Balmiki Prasad. 

           Having considered the submission of the parties and documents available on records

whether oral and/or documentary, now the Appellate Authority has to decide as to whether the appellant-is entitled for payment of balance amount of gratuity as per his claim made in Form ;"N" before the' Controlling Authority, 

           So far as ,the genuineness of the claim of the appellant regarding his identity and the date of  appointment .as claimed in Form "N" is concerned, the Appellate Authority is of the opinion  that arguments  .made by the respondent is contradictory and confusing. On the one hand the respondent  'has mentioned that the appellant's date of appointment is 18-02-2002 whereas on the other hand  the respondent is accepting that the appellant was reinstated with back wages :in the service .of the company on 18-02-2002 as per the Order dated 13-02-2002 of the Hon'ble High Court of Jharkhand at Ranchi in CMP No. 598/2001 arising out of Award in Reference no. 48/82.  Once the appellant was not in the services of the company how he could be reinstated by the management to implement the Orders of the Hon'ble High Court arising out of the award no. 48/82? Had the appellant not the real beneficiary of the award, the management of Bhuli Town Administration would not have issued notices to the appellant together with other five workmen for fulfilling the formalities for implementation of the award for reinstatement vide letter dared 04/13-04-1998 and 17-05-1998. The management of Bhuli Town Administration has also issued a  press notification no.BCCL/BTA/2001/984 darted 05-09-1991 in Hindi mentioning the name of appellant including other workmen as “Sri Rajendra (Balimiki) Prasad Father/Husband’s name : Sri Bharat Lal” for implementation of Order dated 05-07-2001 of the Hon’ble High Court of Jharkhand, Ranchi in MJC Case No.440/2000 in relation to award in Reference No.48/82. It is also a matter of fact that had the workmen was not in the services of the company, he would not have been paid back wages in two instalments of Rs.50,000 since the company was in BIFR as per the direction of the Hon’ble High Court in CMP No.598 of 2001. The management of Bhuli Town Administration has also issued an Office Order dated 18-02-2002 stating that the appellant Sri Rajendra Prasad - General Mazdoor and other four workmen have reported for duty with effect from 18-02-2002 (F/N).  

           It is observed that there have been disputes regarding identification of some of the workers involved in the Award in Reference No: 48/82. In CWJC No. 833 of 1994 (R) between Nathi Devi and others and Bharat Coking Coal Ltd the Hon'ble High Court of Judicature at Patna, Ranchi Bench left the matter be decided by the Central Govt. lndustrial Tribunal  No.2. The Central Govt. Industrial Tribunal No.2, Dhanbad , in its  Order dated 8th August 1998 has held that the workmen involved in this appeal as genuine and concluded that “In conclusion, it is held that (1) Nethi Devi, (2) Sita Devi, (3) Tara Devi (4) Singheswar (5) Rajendra Prasad (6) Dillip Banslore (7) Prakash Chandra Balmiki are found to be genuine persons with reference to the documents and materials produced before me and in that process they are identified accordingly”. The Hon’ble CGIT No.2,Dhanbad in concluding paragraph has mentioned that “Thus it is concluded that the said 7 persons as mentioned above are found to be identified under the guidance of the Hon’ble High Court……”  

            Apart from the above, a certificate Dated· 27-08-1981 issued by the Senior Administrative Officer, Bhuli Town Administration also indicates that the Appellant was engaged in Bhuli Town Administration since October 1978 to 1981.Though the respondent has denied the authenticity of this certificate but the documents such as CGIT Award and various judicial pronouncements as aforesaid cannot be denied. Moreover, the respondent has accepted that the appellant was reinstated in services of the company in compliance of the above award and Orders of the Hon’ble High Court. Thus the appeal of the appellant for payment of gratuity with effect from October 1978 seems to be justified and cogent. 

           In view of the specifics and situation discussed hereinabove, I have no option but to pass the following orders : 

1) The appeal filed by the appellant succeeds and the same is allowed. 

2) The respondent is directed to make payment of the difference amount of gratuity     Rs. 4,85,358.25 [6,28,108.00 (-) 1,42,749.75 = 4,85,358.25] to the appellant. 

3) Since the matter involved legal issues and interpretation and the employer was not capable of understanding such issues, no interest is ordered. 

Given under my hand and seal on this 22nd day of January 2016. 

 (A.K.Samantaray)

 Deputy Chief Labour Commissioner (Central) Dhanbad & Appellate Authority under Payment of Gratuity Act, 1972 

 WRIT PETITION BY THE THE EMPOLOYER

W.P. (L) No. 6579 of 2016

(In the matter of an Application under Article 226 of the Constitution of India)

 M/s. Bharat Coking Coal Limited, a Government Company within the meaning of Section 617 of the Companies Act, having its registered office at Koyla Bhawan, P.O. – Koyla Nagar, P.S. – Saraidhela, District – Dhanbad through Sri Santosh Narayan Sinha, Chief Manager (Administration), Bhooli, P.O. – Bhooli, P.S. & District – Dhanbad, Pin – 828104.                                                                 … … Petitioner

Versus

 1. Deputy Chief Labour Commissioner (Central), Dhanbad and Appellate Authority under the Payment of Gratuity Act, 1972, having its office at ‘Shram Bhawan’, New Colony, Jagjivan Nagar, P.O. – Jagjivan Nagar, P.S. – Saraidhela, District – Dhanbad, Pin – 826003

2. Rajendra Balmiki Prasad  Respondent

For the Petitioner                     : Mr. Anoop Kr. Mehta, Adv.                                                     Mr. Amit Kr. Sinha, Adv.

For the Respondents                : Mr. Ashok Kumar, Adv. Mr. Rajesh Kumar, Adv.

For the Res.-UOI                       : Mrs. Leena Mukherjee, C.G.C.

           Coram : HON'BLE MR. JUSTICE RAJESH KUMAR

JUDGMENT

 By Court:                                           Heard counsel for the parties.

               The present writ petition has been filed for quashing the decision dated 22.01.2016 passed by Deputy Chief Labour Commissioner (Central), Dhanbad and the Appellate Authority in P.G.A. No. (51)/2015-DY.CLC., whereby appeal filed by the workman, has been allowed and consequence thereof, the management has been directed to make payment of Rs. 4,85,358.25/- to the workman.

           From the pleading, it appears that respondent-workman has been appointed on 05.10.1978 under the Petitioner-BCCL. Subsequently, the respondent-employee along with 53 workmen were terminated from the service w.e.f. 18.06.1981. Such termination 2 has been challenged by raising industrial dispute through the Union vide application dated 17.09.1981. 

             On failure of conciliation, industrial dispute has been referred to the C.G.I.T. No.2, Dhanbad for adjudication in Reference No. 48 of 1982 vide order dated 12.05.1982. This reference has been answered in favour of the workman directing for reinstatement in service. Thereafter, petitioner-management has filed Reference Misc. Case No. 01 of 1982 before the Tribunal for setting aside the ex-parte Award, but the same has been rejected vide order dated 31.03.1983.

            The Award passed in above case, has been challenged by filing a writ petition being CWJC No. 85 of 1984 (R) which has been disposed of vide order dated 09.05.1988 in favour of the workman directing the petitioner-management to reinstate the workman. In pursuance of order, the petitioner-management has constituted a screening committee for identification purpose. The present respondent no. 2 as well as other workmen were declared unidentified by the screening committee.

           This finding of the screening committee has been challenged by workman by filing a writ petition being CWJC No. 833 of 1994 (R) and the Hon’ble Court vide order dated 07.09.1995 has directed the Tribunal to identify the workmen.

            In pursuance of above direction, a Misc. Case No. 03 of 1995 has been instituted in which seven persons including the respondent no. 2 were found genuine and the petitioner management has been directed to reinstate respondent no.2.

           Against the above order, the petitioner-management has preferred a writ petition being CWJC No. 4256 of 1996 (R) and the same has been dismissed vide order dated 03.09.1997 and as such the genuiness of the respondent no.2 stands proved.

              Being aggrieved, L.P.A. has been preferred being L.P.A. No. 131 of 1998 (R) which has been disposed of vide order dated 11.11.1999. The operating portion of the order reads as under:-

“In view of the fact that the Tribunal had a very limited scope to verify the persons except oral evidence and documents filed by respective parties, on the ratio of decision of the apex court in Bharat Coking Coal Ltd. vs. Raghunath Balmiki (1991) 1 S.C.C. 177), the parties agree that by way of abundand caution the workers concerned shall obtain the relevant performa from the management within a week and submit the same within a week thereafter with certificate of birth and thereafter within a month services of those workmen shall be regularized and their wages with effect from 20.6.1981 and other emoluments as per award as well as the impugned order dated 19.3.1998, passed by this Court for idle period shall be calculated and paid by the management. However, they shall not be entitled to any interest. Accordingly, direction for payment of 9% interest given in the impugned order dated 19.3.1998 is set aside.

This appeal is, accordingly, disposed of with the aforesaid modification and direction.”

            In spite of above order, there was some confusion between the parties and as such the workman has approached this Court by filing being C.M.P. No. 598 of 2001 and which has been disposed of by giving further direction. The direction given vide order 13.02.2002, is quoted hereinbelow:-

 “i. All the five workmen shall be reinstated. They shall report for duties on 18.2.2002 and their duties shall start from that date. From that day they shall be paid their current wages as well;

 ii. Whatever documentary evidence the workmen have produced already or may additionally produce in four weeks from today with respect to their ages, the Management shall consider the same and if satisfied shall record their ages accordingly. Otherwise, the Management shall be at liberty to subject these workmen to examination by a Medical Board and the Medical Board shall record its assessment of their ages which shall be duly entered in their Service Record; and

 iii. The Management has submitted before us that because of economic crunch it is not in a position to pay the back wages and the matter has been taken up with the B.I.F.R. It is up to the Management to obtain any appropriate orders from B.I.F.R., but in the meanwhile by way of interim measure each of the five workmen shall be paid Rs. 50,000/- (Rupees fifty thousand). This amount shall be paid latest by 28.02.2002.”

            Ultimately, the respondent no. 2 has been allowed to join in service of the company w.e.f. 18.02.2002 and he served and got 4 wages till the age of superannuation i.e. 31.10.2012. But, the present dispute has arisen as respondent-workman has claimed gratuity treating his service w.e.f. 1982 but the respondent no.2 paid the gratuity from the date of reinstatement i.e. 18.02.2002. The claim of the petitioner-management has not been accepted by the Appellate Authority under the Payment of Gratuity Act, 1972, and being aggrieved the present writ petition has been filed.

            From the marshalling of fact and sequence of different orders, as discussed above, it is evident that the petitioner has been reinstated in service w.e.f. 18.02.2002. But, even the order of the L.P.A. Court is clear that the respondent-workman is entitled for continuity of service from 20.06.1981. This order of the Division Bench has attained finality and this cannot be agitated again between the parties.

            It is trite that the issue raised and decided between the parties cannot be re-agitated even in subsequent proceeding.

           In view of above discussion, this Court finds that the impugned order dated 22.01.2016 passed by the Appellate Authority in P.G.A. No. (51)/2015-DY.CLC., is perfectly justified and in accordance with direction of this Court (Supra). Accordingly the same is, hereby, upheld.

Resultantly, present writ petition stands dismissed.

                                                                                                                                       Sd/-

(Rajesh Kumar, J.),Jharkhand High Court, Ranchi

The Day of 29th of August, 2019

Amar/N.A.F. 

Dear Members of this Forum,

           Few days back I had circulated my judgment of 2016 and Hon’ble High Court, Jhanrkhand’s judgment in respect of Rajendra Balmiki Prasad. When demand was made with Bharat Coking Coal Ltd for payment of gratuity, BCCL filed an LPA before a Division Bench of Hon’ble High Court of Jharkhand in the year 2019.Today I received December issue of INDIAN FACTORIES AND LABOUR REPORTS, [2020 (167) FLR 826] and noticed the judgment. I was not knowing that BCCL filed an LPA.I am now presenting the judgment of the learned Division Bench which has dismissed the LPA.

AJAYA KUMAR SAMANTARAY

12 JANUARY 2021

WRIT APPEAL BY THE EMPLOYER

IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No.766 of 2019

M/s. Bharat Coking Coal Ltd., a Government Company

within the meaning of Section 617 of the Companies Act,

having its Registered Office at Koyla Bhawan,

P.O. – Koyla Nagar, P.S. – Saraidhela,

District – Dhanbad through Sri Santosh Kumar Singh,

General Manager (P) / Administration,

Bharat Coking Coal Ltd., resident of Chiragora,

Hirapur, Dhanbad, P.O., P.S. & District – Dhanbad.                                               … …                  Appellant

Versus

1. Deputy Chief Labour Commissioner (Central) Dhanbad and

Appellate Authority under the Payment of Gratuity Act, 1972,

having its office at “Shram Bhawan”, New Colony, Jagjivan Nagar,

P.O. – Jagjivan Nagar, P.S. – Saraidhela, District – Dhanbad, PIN – 826003.

2. Rajendra Balmiki Prasad, son of Late Bharat Lal,

resident of Qr. No. 18, Sector-V, “E” Block, Bhooli Nagar,

P.O. – Bhooli, P.S. & District – Dhanbad, PIN – 828104.                                … …                     Respondents

CORAM :

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

For the Appellant                                 : Mr. Anoop Kumar Mehta,

Advocate For the Respondent No.1 : Mr. Rajiv Sinha, ASGI

ORAL JUDGMENT

Order No. 04 : Dated 16th June, 2020

           The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity.

I.A. No. 10558 of 2019

           This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 31 days in preferring this Letters Patent Appeal.

 2. Heard parties.

3. Having regard to the averments made in the application and submissions made on behalf of the parties, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 31 days in preferring the appeal is hereby condoned.

4. I.A. No. 10558 of 2019 stands allowed.

L.P.A. No. 766 of 2019

 5. The instant intra-Court appeal is directed against the order/judgment dated 29th August, 2019 passed by learned Single Judge of this Court in W.P.(L) No. 6579 of 2016 whereby and whereunder the order dated 22.01.2016 passed by the Appellate Authority in P.G.A. No. (51) / 2015-DY.CLC, has been declined to be interfered with.

6. The brief facts of the case which are required to be enumerated read as under :

      The Respondent No.2- workman was working under the appellant Management and while in service he along with 52 other workmen had raised a dispute for their regular employment being Reference No. 48/1982 wherein reference was to the effect “Whether the demand of the workmen of M/s. Bharat Coking Coal Ltd., P.O. Saraidhela, District – Dhanbad for regular employment to Sri Birendra Basphore and 53 others Sweepers under the Management is justified ? If so, to what relief are the workmen concerned entitled”. The reference was answered by way of an Award passed on 07.09.1982 wherein the Tribunal held that “under the circumstances the demand of the workmen of M/s. Bharat Coking Coal Ltd., P.O. – Saraidhela, Karmik Bhawan, District – Dhanbad for regular employment to Sri Birendra Basphore and 53 other sweepers (listed in the schedule) is justified. They should be, therefore, regularized in service w.e.f. 20.06.1981 when they were stopped from working. They will be further entitled to their wages and other emoluments for the idle period”. The Award passed by the Tribunal in connection with Reference No. 48 of 1982 was challenged before the Ranchi Bench of Hon’ble Patna High Court, as then it was, vide C.W.J.C. No. 85 of 1984(R) which was disposed of by order dated 09.05.1988 whereby and whereunder the Award was refused to be interfered with and direction was given to the appellant Management to reinstate the workmen. The appellant-management constituted a Screening Committee for identification of the workmen but the Respondent No.2- workman as well as some other workmen were declared unidentified by the Screening Committee. The Respondent No.2- workman along with others who were declared to be unidentified by the Screening Committee, questioned the aforesaid decision by filing a writ petition being C.W.J.C. No. 833 of 1994 (R) and vide order dated 07.09.1995 the Tribunal was directed to identify the workmen. The order passed in C.W.J.C. No. 833 of 1994 (R) was challenged in intra-Court appeal being L.P.A. No. 131 of 1998(R) which was disposed of vide order dated 11.11.1999 whereby and whereunder the following direction was given :-

 “In view of the fact that the Tribunal had a very limited scope to verify the persons except oral evidence and documents filed by respective parties on the ratio of decision of the Apex Court in Bharat Coking Coal Ltd. Vrs. Raghunath Balmiki (1991) 1 SCC 177, the parties agree that by way of abundant caution the worker concerned shall obtain the relevant performa from the management within a week and submit the same within a week thereafter with certificate of birth and thereafter within a month service of those workmen shall be regularized and their wages w.e.f. 20.06.1981 and other emoluments as per the award as well as the impugned order dated 19.3.1998 passed by this Court for idle period shall be calculated and paid by the management. However, they shall not be entitled to any interest. Accordingly, direction for payment of 9% interest given in the impugned order dated 19.3.1998 is set aside. This appeal is accordingly disposed of with the aforesaid modification and direction.”

The workmen again moved to this Court by filing Civil Miscellaneous Petition being C.M.P. No.598 of 2001 which was disposed of vide order dated 13.02.2002 by passing the following direction :-

“(i) All the five workmen shall be reinstated.  They shall report for duties on 18.2.2002 and their dues shall start from that date. From that date they shall be paid their current wages as well;

(ii) Whatever documentary evidence the workmen have produced already or may additionally produce in four weeks from today with respect to their ages, the management shall consider the same and if satisfied shall record their ages accordingly. Otherwise, the management shall be at liberty to subject these workmen to examination by a medical board and the medical board shall record its assessment of their ages, which shall be duly entered in their service record; and

(iii) The management has submitted before us that because of economic crunch it is not in a position to pay the back wages and the matter has been taken up with the BIFR, it is up to the management to obtain any appropriate order from the BIFR but in the meanwhile by way of interim measure each of the five workmen shall be paid Rs.50,000/- (Rs. Fifty Thousand). This amount shall be paid latest by 28.2.2002.”

The Respondent No.2-workman joined the services of the appellant Management on 18.02.2002 in terms of the order dated 13.02.2002 passed in C.M.P. No. 598 of 2001 and discharged his duty till the date of superannuation i.e., till 31.10.2012. The Respondent No.2-workman was not paid the amount of gratuity from the date of regularization i.e., with effect from 20.06.1981 as per the Award passed answering the reference which led the Respondent No.2- workman to approach to the Controlling Authority under the Payment of Gratuity Act, 1972 by filing Application No. 36/(18)/2013.E.6 but the Controlling Authority vide order dated 14.08.2015 declined to interfere with the decision of the management deciding the claim of gratuity from 19.02.2002 denying the same with effect from 10.03.1978. The Respondent No.2-workman then preferred an appeal before the Deputy Chief Labour Commissioner (Central), Dhanbad being PGA No. (51)/2015-DY.CLC which was decided on 22.01.2016 whereby and whereunder the order passed by the Controlling Authority dated 14.08.2015 was reversed by allowing the appeal holding the Respondent No.2- workman entitled for payment of gratuity with effect from the date of regularization i.e., October, 1978.

      The appellant management challenged the aforesaid order by invoking the jurisdiction conferred upon this Court under Article 226 of the Constitution of India in W.P.(L) No.6579 of 2016 and the learned Single Judge of this Court declined to interfere with the order dated 22.01.2016 passed by the Appellate Authority in PGA No. (51)/2015-DY.CLC against which the present intra-Court appeal has been preferred.

7. Mr. Anoop Kumar Mehta, learned counsel appearing for the appellant, has submitted by taking the ground that the Respondent No.2-workman has not yet vacated the quarter even though he has superannuated from service on attaining the age of superannuation and hence the amount of gratuity is adjustable with the rent in lieu of occupation of the quarter.

8. Mr. Rajiv Sinha, learned A.S.G.I., appearing for the Respondent No.1, has submitted that the learned Single Judge has committed no error in passing the order by holding the entitlement of the Respondent No.2-workman from the date of his regularization as per the Award passed in Reference No. 48/1982. Hence, the same requires no interference by this Court.

9. This Court, having heard the learned counsel for the parties and on appreciation of the rival submissions advanced on their behalf as also the findings recorded by the learned Single Judge, deems it fit and proper to first deal with the legal position as contained under the Payment of Gratuity Act, 1972 (hereinafter to be referred to as the Act, 1972). It is not in dispute that the Act, 1972 has been enacted to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto. The reason for enactment of the said Act was felt in order to regulate the payment of gratuity to industrial workers. The Act, 1972 contains a provision under Section 4 under the caption “Payment of Gratuity” as per which the 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 – (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease, provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement. It is thus evident that the gratuity is to be paid to an employee who has rendered continuous service for not less than five years on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease. It is further evident that save and except the provision as contained under Section 4, there is no other provision for withholding the amount of gratuity, meaning thereby, if an employee complies with the condition of rendering service not less than five years, he will be entitled to get the amount of gratuity on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease. The reference of the aforesaid provision of the Act, 1972 has been required to be made herein in order to answer the issue raised by the learned counsel appearing for the appellant Management about adjustment of the rent for keeping the quarter in possession by the Respondent No.2- workman from the amount of gratuity. But, in absence of any provision under the Act, 1972, no such direction for adjustment of the rental amount will be appropriate to be passed. Learned counsel for the appellant has also fairly acceded that save and except the Act, 1972, no other scheme or Act parallel to the Act, 1972, is applicable to the employees of the appellant Management. Therefore, we are of the considered view that in absence of any provision under the Act, 1972, no such direction for adjustment of the amount for keeping the quarter, as has been submitted by the learned counsel for the appellant, can be passed and therefore, the aforesaid ground, according to us, is of no substance and accordingly rejected.

10. Admittedly herein, the Respondent No.2-workman along with 52 workers were not working under the regular establishment of the appellant Management and, therefore, a dispute was raised for regularizing them in service which was numbered as Reference Case No. 48/1982 which was answered by Award dated 07.09.1982 whereby and whereunder the Award of regularization was passed with effect from 20.06.1981. The Award passed in the aforesaid reference case was challenged by filing writ petition being C.W.J.C. No. 85 of 1984(R) which was disposed of vide order dated 09.05.1988 with a direction upon the Management to reinstate the workmen in pursuance to the aforesaid Award. However, the Award was not implemented so far as it relates to the Respondent No.2-workman and some other workmen due to the issue of identification by the Screening Committee. Ultimately, the matter was settled and the Respondent No.2- workman was treated to be regularized in service with effect from 20.06.1981. The Respondent No.2-workman retired from service on attaining the age of superannuation with effect from 31.10.2012 but the appellant Management has only paid an amount of Rs. 1,48,748/- towards gratuity counting it from 19.02.2002 leaving the period from which the Award for regularization i.e., with effect from 20.06.1981 which led the Respondent No.2-workman to approach before the Controlling Authority under the Act, 1972 but the Controlling Authority declined to accede to the grievance of the Respondent No.2-workman on the ground that no documents were produced in support of the fact that the Respondent No.2-workman was regularized with effect from 20.06.1981 and the decision of the Authority holding the Respondent No.2-workman entitled for gratuity with effect from 19.02.2002 till the date of superannuation was held to be justified. The Respondent No.2-workman filed appeal against the aforesaid order and the Appellate authority reversed the order passed by the Controlling Authority taking into consideration the Award of regularization with effect from 20.06.1981 with a direction to make payment of the differential amount of the gratuity by counting it from 20.06.1981 i.e. the date of regularization as has been held in Reference Case No. 48/1982. The order passed by the Appellate Authority was challenged before this Court by filing writ petition being W.P.(L) No. 6579 of 2016 but the learned Single Judge declined to interfere with the order passed by the Appellate Authority under the Act, 1972 which is the subject matter of the instant appeal.

11. The question herein is as to whether the Respondent No.2-workman would be entitled for the amount of gratuity with effect from 19.02.2002 or with effect from the date of regularization i.e., 20.06.1981. It is not in dispute that the Respondent No.2-workman was regularized by way of an Award with effect from 20.06.1981. The aforesaid Award was confirmed by this Court under the writ jurisdiction in an order passed in C.W.J.C. No. 85 of 1984 (R) and in terms of the order passed by this Court in judicial proceedings, the Respondent No.2- workman was regularized in service from 20.06.1981 as per the Award. These admitted fact suggests that the Award passed by the Industrial Tribunal with respect to the Reference Case No. 48/1982 has attained finality. It is also not in dispute that the Respondent No.2- workman was not discharging his duty as nothing has been averred in the paper book either before the writ court or before this Court, meaning thereby, the Respondent No.2-workman was working in the daily rated capacity and the day he was regularized by enforcement of the Award, he will be treated to be in regular establishment of the appellant Management with effect from 20.06.1981.

12. The Controlling Authority in not considering the fact about the regularization with effect from 20.06.1981, as has been awarded in Reference Case No. 48/1982, according to our considered view, has committed gross illegality for the reason that if the reasoning of the Controlling Authority would be accepted, the normal consequence would be to discard the Award passed in the reference case and once the Award has attained its finality, it would be enforceable within the meaning of Section 17-A of the Industrial Disputes Act, 1947 and once it is enforceable, the workmen in whose favour Award has been passed, would be legally entitled for service benefits in terms of the aforesaid Award but the Controlling Authority has not considered this aspect of the matter, however, the same has been considered by the Appellate Authority and rightly so, since the Appellate Authority has taken into consideration the binding nature of the Award in view of Section 17-A of the Industrial Disputes Act, 1947 and once the Respondent No.2-workman has been directed to be regularized by way of said Award, he will be deemed to be in regular establishment with effect from 20.06.1981.

13. The further question would be as to whether the Respondent No.2-workman has been able to show about compliance of the conditions mentioned under Section 4 of the Act, 1972 or not? It has been provided under Section 4 that the condition for entitlement to get the amount of gratuity is continuous service for a period not less than five years on his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease. This Court has considered the mandatory conditions for entitlement to get the amount of gratuity and came to conclusive finding by taking into consideration the binding nature of Award passed in Reference Case No. 48/1982 whereby and whereunder the Respondent No.2-workman and other workmen were regularized in service with effect from 20.06.1981 and since it is not the case of the appellant Management that the Respondent No.2- workman was not working under the Management, rather he had discharged his duty in the daily rated capacity and, therefore, there is no issue of not rendering the continuous service for a period of five years as has been provided under Section 4 of the Act, 1972, as such, according to our considered view, since the Respondent No.2-workman has performed his duty regularly even more than the period of five years and since he has been inducted in the regular establishment with effect from 20.06.1981 as per the Award which has attained its finality, therefore, the Respondent No.2-workman would be entitled to get the gratuity with effect from 20.06.1981.

14. The learned Single Judge, on the basis of the aforesaid reasoning, has declined to interfere with the finding and the conclusion arrived at by the Appellate Authority, which according to us, cannot be faulted with.

15. In view thereof and for the reason aforesaid, we are of the considered view that the order impugned requires no interference.

16. In the result, the appeal fails and the same is dismissed.

17. Consequently, pending I.As [I.A. No. 10559 of 2019 and I.A. No.11028 of 2019] also stand dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.)

Birendra/ A.F.R.