The Deputy General Manager v. The Regional Labour
2024:MHC:4108
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.12.2024 CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY and W.P.M.P.No.967 of 2005 THE DEPUTY GENERAL MANAGER, HUMAN RESOURCES DEVELOPMENT DIVISION, HINDUSTAN PHOTO FILMS MANUFACTURING COMPANY LTD., NOW REPRESENTED BY ITS DIRECTOR (FINANCE AND ACTING CHAIRMAN CUM MANAGING DIRECTOR), INDU NAGAR, OOTACAMUND - 643 005.
.. Petitioner
Versus
1. THE REGIONAL LABOUR COMMISSIONER (CENTRAL), CHENNAI-600 001, THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972.
2. THE ASSISTANT LABOUR COMMISSIONER (CENTRAL) CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972.
3 A.RAJA 4 K.VISWANATHAN 5 A.LAZAR 6 R.DURAISWAMY 7 K.GOPAL 8 M.KRISHNAMOORTHY 1/12
9 P.SELVARAJ 10 P.DURAIRAJAN 11 S.A.ABDUL RAVOOF 12 M.KRISHNAN 13 S.KUPPUSWAMY 14 A.SHIVASHANMUGAM 15 M.AMANHALLAH KHAN 16 P.SREEDHARAN 17 M.RAJENDRAN 18 N.PARATHASARADHI 19 R.DORAISWAMY 20 S.SUNDARAMOOTHY 21 M.VAIJAYANTHI 22 ESLY JACOB 23 K.SAGUNDALAMANI 24 K.CHANDRAN 25 N.MAHESWARAN 26 R.MUTHULAKSHMI 27 R.PERIASWAMY 28 P.THANGAVELU 29 K.THIRUGNANASAMBANDAM 30 G.CHANDRASEKAR 31 P.T.NATARAJAN 32 N.ISHWARAPPA 33 G.SUNDARI 34 M.GANESAN 35 M.SIVARAMAN 36 S.DEVIKARANI 37 H.SUNANDA RAO 38 T.BHUVANESWARI 39 C.SANTHOSAM 40 P.ELUMALAI 41 P.UDAYAKUMAR 42 T.N.USHA 43 R.SEETHALAKSHMI 44 P.PALANISWAMY 45 R.SARADHA 46 N.SENGOTESWARAN 2/12
47 J.N.CHRISTY 48 M.BALAN 49 J.RAJU 50 A.DILSHED BEGAM 51 V.SURYANARAYANAN 52 K.NATAYANA 53 S.S.THAMBI 54 A.SRINIVASAN 55 PAKKIT NAINA MOHAMED 56 R.ACHUDHA NARAYANAN 57 L.VIJENDER RAO 58 A.MICHEAL RAJ 59 R.SRINIVASAN 60 V.SHANMUGASUNDARAM 61 A.SARASWATHI 62 S.R.CHANDRAN 63 M.SRINIVASA RAO 64 V.GANESAN 65 T.R.VENKATARAMAN 66 S.LAZAR 67 N.V.KAMALAKSHMI 68 K.VETRIVEL 69 N.RAGHU 70 R.VENKATESAN 71 Y.KRISHNAN 72 P.V.PICHUMANI 73 SHOBAPRASAD 74 V.P.KANCHI 75 P.MANOHARAN 76 P.RAJU 77 M.RAMASWAMY 78 N.M.THUKKARAM 79 R.VISWANATHAN 80 J.PETER 81 R.ANNAMALAI 82 P.MANGALARAJ 83 DHANKASHNAMOORTHY 84 A.SATHYABAMA 3/12
85 T.BALARAMAN 86 N.BALASUBRAMANI 87 M.KRISHNAN 88 S.KUPPUSWAMY 89 S.KANAKARAJ 90 R.SAMRAJ 91 S.SATHASIVAM 92 A.SATHYANATAYANAN 93 ANNAMMA JOHN 94 K.ANANDARAJ 95 N.SUKANYA 96 N.RAMAKRISHNAN 97 S.ALBERT RAVI 98 MD.MOHIDEEN THAMBI 99 VARALAKSHMI SHARAM 100 A.ELANGO 101 V.BALASUBRAMANIAN 102 A.KUPPUSWAMY .. Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, pleased to issue a Writ of Certiorari Mandamus calling for the records pertaining to the order, dated 25.11.2004 passed by the 1st respondent in Appeal Nos.10 of 2004, 213 to 309 of 2004 and quash the same and consequently direct the 1st respondent to refund the sum of Rs.9,65,024/- deposited by the petitioner.
For Petitioner : Mr.A.G.Sathiyanarayana For Respondents : Mr.M.Prabakar, for RR-1 and 2 : Mr.K.Elango, for RR-3, 5, 7 to 9, 17 to 23, 27 to 31, 35, 36, 38, 38, 41, 47, 48, 50 to 53, 55, 4/12
56, 58 to 60, 64 to 74, 77 to 84, 86, 88 to 90, 94, 98 to 100, 102
ORDER
Heard Mr.A.G.Sathiyanarayana, learned Counsel representing the liquidator on behalf of the petitioner Company, Mr.M.Prabakar, learned Counsel for the respondent Nos.1 and 2 and Mr.K.Elango, learned Counsel for the workmen.
2. This Writ Petition is filed challenging the order passed by the appellate authority under the Payment of Gratuity Act, 1972, by which, a batch of Gratuity Appeals, filed in respect of the claims of the workmen, who are arrayed as the respondent Nos.3 to 102, were dismissed by the appellate authority, confirming the award passed by the authority under the Payment of Gratuity Act, 1972. All these workmen, totalling to 100 in number, originally were working in the petitioner Company. They came to be retired through Voluntary Retirement Scheme. However, when the gratuity was calculated and paid to them, the interim relief amount, which was granted to them, was not included and as such, they approached the authority. The original authority and the appellate authority have held that the said interim relief amount should also be included. 5/12
3. As a matter of fact, it is brought to the notice of this Court that the petitioner management namely, Hindustan Photo Films, has since become sick and the process of liquidation is now on. The amount of Rs.9,65,024/-, which is the amount covering all the 100 workmen is also deposited to the credit of the appellate authority at the time of filing of the appeals itself. In that background, when the matter came up for hearing, the learned Counsel appearing on behalf of the petitioner would submit that firstly, the interim relief should be treated only in the form of an incentive/allowance which would not form part of the definition of wages as contained in the Payment of Gratuity Act, 1972.
4. As per the definition of wages, which is contained in Section 2(s) of the Payment of Gratuity Act, 1972, it is very clear that it is only the emoluments, earned by the employee in terms and conditions of his employment, which are paid to him in cash and the Dearness Allowance, alone can be taken and it will not include the other benefits such as bonus, commission, house rent allowance, overtime wages and any other allowance. This interim relief should also come within the term 'any other 6/12
allowance' only. As a matter of fact, when the interim relief was ordered to be paid to the workmen, the same was specifically paid by passing an office memorandum No.2/44/97-DPE(WC), dated 19.08.1998. Clause (g) of the said memorandum categorically states as follows:- "g) The amount of interim relief will be sui-generis viz. it will neither be termed as 'pay' nor 'allowance' nor 'wages'. Accordingly, this amount would not count for any service benefit i.e. computation of house rent allowance, compensatory allowance, over-time allowance, cash compensation, encashment of leave, pay fixation, pension of gratuity, etc."
5. When the order of grant specifically excludes that the interim relief will not be counted for gratuity also, the authority ought not to have included the amount for the purpose of calculation of gratuity. Therefore, the learned Counsel would submit that the workmen are not entitled to claim the said amount also for the purpose of calculation of gratuity as the same will not come within the definition of basic pay or wages.
6. It can be seen that it is specifically made that it would be a sui generis and cannot be considered for the payment of gratuity. In view thereof, he would submit that the order of the original authority as well as 7/12
the appellate authority are erroneous in law and prays that the Writ Petition be allowed.
7. Per contra, the learned Counsel for the workmen would submit that interim relief was granted, as there was a ban in wage revision and therefore, it is part of the wages only and not an allowance. When the matter was granted as a part of pay, the same has to be included as wages for calculating gratuity and therefore, the authorities are correct in including the same.
8. I have considered the rival submissions made on either side and perused the material records of the case.
9. Even as per the pleadings and the submissions made, the facts that the petitioner management is a public sector undertaking fully owned by the Government of India and that there was a ban on wage revision, are admitted. It is further clear that the workmen had prayed for implementing the wage revisions and have filed W.P.No.15683 of 1996 and W.P.No.15060 of 1996 before this Court which were since transferred to the 8/12
file of the Hon'ble Supreme Court and pending adjudication, by way of interim relief, an additional sum was directed to be paid to the employees by the Hon'ble Supreme Court of India. The said order, however, is not placed on record, but, the pleading on both the sides is that it is in the nature of an interim relief.
10. It can be seen that merely because the wage revision was not granted or implemented, when an additional sum is ordered to be paid as an interim relief, the same cannot be interpreted by the management as an allowance. As a matter of fact, the definition of wages, as contained under Section 2(s) of Payment of Gratuity Act, 1972. It would include all the emoluments within the terms and conditions of the employment which are paid to him in cash and include the Dearness Allowance also and only the bonus, commission, house rent allowance, overtime wages and other allowance are specifically excluded. A reading of the definition, the exclusionary clause is restrictive while the inclusionary clause is expansive as it says that all emoluments will be included. Therefore, whatever is not specifically excluded should be deemed to be included. In that view of the matter, this pay, in the nature of an interim relief, awarded by the Hon'ble 9/12
Supreme Court of India, would naturally be included within the definition of wages.
11. Merely because the petitioner management issues a self-serving memorandum by stating that this will not be included as wages for calculation of gratuity, that will not have the effect of overriding Section 2(s) of the Payment of Gratuity Act, 1972 and the definition of wages under the Act will prevail and accordingly, the original authority as well as the appellate authority are right in awarding the sum. In respect of the 100 workmen, an additional sum, around Rs.9,000/-, each has been awarded and the entire amount, totally amounting to Rs.9,65,024/- is already deposited to the credit of the first respondent. In view thereof, the said sum along with accrued interest, shall be paid out to the workmen.
12. This Writ Petition is disposed of on the following terms:- (i) The prayer made in the Writ Petition to quash the order, dated 25.11.2004 passed by the first respondent in Appeal Nos.10 of 2004, 213 to 309 of 2004 stands rejected;
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(ii) The sum of Rs.9,65,024/- along with accrued interest shall be accordingly disbursed to the 100 workmen;
(iii) If any workman is no more, the amount shall be disbursed to the legal heirs upon filing appropriate petition and legal heirship certificate; (iv) These workmen will not be entitled to make any further claim with reference to their gratuity;
(v) There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
09.12.2024 : yes grs To
1. THE REGIONAL LABOUR COMMISSIONER (CENTRAL), CHENNAI-600 001, THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972.
2. THE ASSISTANT LABOUR COMMISSIONER (CENTRAL) CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972.
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D.BHARATHA CHAKRAVARTHY, J.
grs and W.P.M.P.No.967 of 2005 09.12.2024 12/12