Villupuram District Central v. The Authority Under Payment
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.11.2019
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM W.P.No.29696 of 2016, W.P.Nos. 11971 to 11973 of 2013 and W.P.Nos. 26882 to 26884 of 2016 and W.M.P.Nos.23097 to 23099 of 2016 and WMP.No. 25699 of 2016 and M.P.Nos. 1 and 2 of 2013 W.P.No. 29696 of 2016 Villupuram District Central Co-operative Bank Ltd., Rep. By its Managing Director 2, Hospital Road, Villupuram .. Petitioner -Vs1. The Authority under Payment of Gratuity Act (The Assistant Commissioner of Labour) Vellore
2. A.Mani Chetty .. Respondents PRAYER in W.P.No.29696 of 2016: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records on the file of the first respondent relating to the order of the first respondent dated 19.05.2016 in P.G.No.26 of 2010 and quash the same. For petitioner : Mr.R.Arumugam in all WPS For Respondents: Mr.J.Ramesh, Addl. Govt. Pleader for R1 No appearance for R2 Prayer in WP No.11971 of 2013 :
P-1 VILLUPURAM DISTRICT CENTRAL CO-OPERATIVE BANK LTD.
REP. BY ITS SPECIAL OFFICER / ADMINISTRATOR 2 HOSPITAL ROAD VILLUPURAM.
.. Petitioner
Vs R1 THE JOINT COMMISSIONER OF LABOUR DMS COMPOUND CHENNAI-6.
R2 THE ASSISTANT COMMISSIONER OF LABOUR OFFICE OF DCL II DMS COMPOUND CHENNAI-6.
R3 N.PONMUDI 33 CO-OP. NAGAR CUDDALORE.
R4 K.RAMALINGAM PARINDAL POST ULUNDURPETTAI TALUK CUDDALORE DISTRICT.
R5 M.DEIVASIGAMANI 15 MULAI STREET K.V.R. NAGAR VILLUPURAM- 605602.
R6 N.SUBRAMANIAN 5 PERUMAL KOIL STREET VALAVANOOR VILLUPURAM-605108.
R7 P.RAMANATHAN 35/9 POLICE LINE 6TH STREET PANRUTI- 607106.
R8 M.KRISHNAMOORTHY 1115 CHOLAN STREET VOC NAGAR PANRUTI- 607106.
R9 P.DURAIRAJ 25/84 KANDASAMY LAYOUT 2ND STREET KK ROAD VILLUPURAM.
R10 K.RADHAKRISHNAN 140 ARASAMARA STREET TIRUVANNAMALAI.
R11 V.VELMURUGAN 2/251 TEACHERS COLONY MANAMPOONDI & POST VILLUPURAM DISTRICT.
R12 T.RAMALINGAM 8C VENDATARAMAN STREET ULUNDURPETTAI- 605106.
R13 V.GOVINDAREDDY 1/9 PERUMAL KOIL STREET PALLIPUDUPATTU VILLUPURAM DISTRICT.
R14 R.ABDUL HAMID 11/7 SUBBARAYA STREET GENGI VILLUPURAM DISTRICT.
R15 R.MYLAPPAN 64/14 VALLALAR STREET SANJEEVARAYANPETTAI TINDIVANAM.
R16 K.KADIRVELU 10/50 KAMANKOIL STREET THIRUVANNAINALLUR VILLUPURAM DISTRICT.
R17 K.SESHAPILLAI 50A KULLETHUPADAI STREET SANKARAPURAM POST VILLUPURAM DISTRICT.
R18 S.KALIAMURTHY 40E APPASAMY NAGAR MANNARSAMY KOIL TINDIVANAM EAST.
R19 K.EKAMBARAM 9 BHAGATSINGH STREET NGO NAGAR THIRUKOVILUR.
R20 V.CHAKKARAVARTHY 56 PILLAIYAR KOIL STREET TINDIVANAM.
R21 P.NARAYANAN 12 JAMES NAGAR ULUNDURPETTAI VILLUPURAM DISTRICT.
R22 K.DEVANATHAN 288 MARUTHUPANDIYAR STREET SUDHAKAR NAGAR VILLUPURAM-605602.
R23 K.SHANMUGAM 3/11A PUVATHAMMAN STREET KRISHNAPURAM.
R24 S.SUBRAMANIAN MAIN ROAD C.MEIYAR & POST VILLUPURAM DISTRICT.
R25 T.RAJASEKARAN 89 PERUMAL STREET THIRUKOVILUR.
R26 V.SADAGOPAN NORTH STREET ERAIYURPALAYAM & POST VILLUPURAM DISTRICT.
R27 P.GOVINDASAMY KOVADI VILLAGE TINDIVANAM.
R28 A.ABDUL MALIK TVN ROAD ULUNDURPETTAI VILLUPURAM.
R29 A.MANIVANNAN AVIYUR KEIZAIUR POST THIRUKOVILUR.
R30 T.A.RAMALINGAM 121 RAMAIAH LAYOUT VILLUPURAM-605602.
R31 Smt.Ponnachi W/o.Late M.Deivasigamani R32 Vinothkumar S/o.Late M.Deivasigamani R33 Smt.Sankari D/o.Late M.Deivasigamani Respts.31 to 33 are residing at No.15 Mulai St K.V.R.Nagar Villupuram.605 602 R34 Janarthanan S/o.Late K.Radhakrishnan R35 Santhanalakshmi D/o.Late K.Radhakrishnan R36 Ramathilagam D/o.Late K.
Radhakrishnan Respts.34 to 36 are residing at 140 Arasamara St Tiruvannamalai.
R37 Smt.Nachiammal W/o.Late A.Manivanan R38 Kolanchiappan S/o.Late A.Manivannan R39 Senthilkumar S/o.Late A.Manivanan R40 Balamurugan S/o.Late A.Manivanan
R41 Sathiya D/o.Late A.Manivannan R37 to 41 are residing at Aviyur Keizaiur Po Thirukovilur.
..Respondents R31 to33 34 to 36 & 37 to 41 are substituted as Lrs of Deceased R5 M.
Deivasigamani R10.K.Radhakrishnan & R29 A.
Manivannan As per order dt.16.07.18 by SMSJ IN WMPs.30516 to 30518/16 IN WP.11971/2013 Prayer in WP No.11971 of 2013 : Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari calling for records on the file of the Respondents 1 and 2 relating to the order of the first Respondent dated 27.12.2012 in P.G. Appeal No.6 of 2012 confirming the order of the second respondent dated 14.6.2012 in P.G. Case No.3/2012 6/2012 to 32/2012 and quash the same.
For Respondents : Mr.J.Ramesh, R1 & R2 Additional Government Pleader R3 to R30 : Mr.Premkumar WP No.11972 of 2013 :
P-1 Villupuram District Central Co-operative Bank Ltd., Rep. By its Special Officer/Adminstrator, 2, Hospital Road, Villupuram
...Petitioner
Vs R1 THE JOINT COMMISSIONER OF LABOUR DMS COMPOUND CHENNAI-6.
R2 THE ASSISTANT COMMISSIONER OF LABOUR OFFICE OF DCL II DMS COMPOUND CHENNAI-6.
R3 P.Shanmugam (Deceased) R4 Smt.Thilagavathy R5 Sivagurunathan R6 Sivaramakrishnan R7 Sivachidambaram ..Respondents
R4 to R7 are residing at 364, Sivajothi Nagar, C, Lthandareswaradaranallur, Chiambaram, Cuddalore District. R4 to R7 are substituted as Lrs of Deceased R3 P.Shanmugam as per oder dated 16.07.2018 by SMSJ in WMP 25948/16 in WP No.11972/13.
Prayer in WP No.11972 of 2013 : Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari calling for records on the file of the Respondents 1 and 2 relationg to the order of the first Respondent dated 27.12.2012 in P.G.Appeal No.7 of 2012 confirming the order of the second respondent dated 14.06.2012 in P.G. Case No.4/2012 and quash the same.
For Respondents R1 & R2 : Mr.J.Ramesh Additional Government Pleader R3 : Deceased R4 to R7 : Mr.K.Prem Kumar WP No.11973 of 2013 :
P1 VILLUPURAM DISTRICT CENTRAL CO-OPERATIVE BANK LTD REP. BY ITS SPECIAL OFFICER / ADMINISTRATOR 2 HOSPITAL ROAD VILLUPURAM.
..Petitioner Vs R-1 THE JOINT COMMISSIONER OF LABOUR DMS COMPOUND CHENNAI-6.
R-2 THE ASSISTANT COMMISSIONER OF LABOUR OFFICE OF DCL II DMS COMPOUND CHENNAI-6.
R-3 P.DHANDAPANI 18/15 THULUKKANAM STREET, AVARAPPAKKAM, TINDIVANAM.
..Respondents Prayer in WP No.11973 of 2013 : Petition filed under Article 226 of the Constitution of India, praying to issue a writ of calling for records on the file of the Respondents 1 and 2 relating to the order of the first Respondent dated 27.12.2012 in P.G. Appeal No.8 of 2012 confirming the order of the second respondent dated 14.6.2012 in P.G. Case No.5/2012 and quash the same.
For Respondent for R1 & R2 : Mr.J.Ramesh Additional Government Pleader for R3 : Mr.K.Premkumar WP No.26882 to 26884 of 2016 :
P1 VILLUPURAM DISTRICT CENTRAL CO-OPERATIVE BANK LTD REP. BY ITS SPECIAL OFFICER / ADMINISTRATOR 2 HOSPITAL ROAD VILLUPURAM.
..Petitioner in all WPS Vs R-1 THE AUTHORITY UNDER PAYMENT OF GRATUTITY ACT/ THE ASSISTANT COMMISSIONER OF LABOUR, VELLORE. .. 1st Respondent in all Wps R-2 G.MUNUSAMY ..2nd Respondent in WP 26882/16 R-2 K.RAMASAMY ..2nd Respondent in WP 26883 & 26884/16 Prayer in WP No. 26882 to 26884 of 2016 : Petition filed under aRticle 226 of the Constitution of India, praying to issue a writ of certiorari calling for records on the file of the first Respondent relating to the order of the first Respondent dated 04.05.2016 in 1) P.G.33 of 2013 2) P.G.No.34 of 2013 and 3) P.G.No.35 and quash the same.
For Respondents in all Wps : Mr.J.Ramesh, for R1 Additional Government Pleader for R2 : NA
ORDER
The orders passed by the Authority under the Payment of Gratuity Act, 1972 in P.G.No.26 of 2010, P.G.Nos. 33, 34, 35 of 2013 and P.G.Nos. 3, 6 to 32 of 2012 and P.G.Nos. 4 and 5 of 2012 are under challenge in these present writ petitions.
2. In all these writ petitions, the writ petitioner is the Villupuram District Co-operative Bank Limited, which is a Cooperative Society registered under the Tamil Nadu Co-operative Societies Act, 1983. Admittedly, the Co-operative Societies are controlled and regulated under the provisions of the Tamil Nadu Co-operative Societies Act as well as the Rules and the by laws are approved by the competent authority namely the Registrar for each society.
3. The learned counsel appearing on behalf of the respondent employees contended that their claim is for differences in gratuity amount that was actually paid to these employees. In other words, certain period of services has not been reckoned as qualifying service for the purpose of calculating the gratuity. Thus, these employees were constrained to move the competent authority for calculation of those left out period for payment of gratuity under the payment of Gratuity Act,1972. Thus, all the respondents/employees had received their gratuity as per the calculation made by the writ petitioner/Management. However, the claim was made regarding the differential amount to be paid based on the grievance that portion of the services were not taken into consideration as qualifying service for the purpose of calculating the gratuity amount.
4. The question to be decided in these writ petitions is that whether the first respondent authority under the payment of Gratuity Act has got jurisdiction to entertain a petition from the employees of a Co-operative Bank, wherein, Bank itself is having a separate gratuity scheme in its special bylaw.
5. Clause 28 provides for gratuity. Accordingly, the group gratuity cash amalgamations scheme of Life Insurance Corporation is being maintained for payment of gratuity to the employees working in the District Central Co-operative Bank. A gratuity fund has been credited for the purpose of payment of gratuity and the said fund will not be utilised for any other purposes including business purposes of the Central Co-operative Bank, which is being the nature of the scheme constituted and being maintained by the Bank with reference to Section 79 of the Tamil Nadu Co-operative Societies Act whether the first respondent authority under the Gratuity Act is competent to entertain an application under the Gratuity Act or not.
6. Section 79 of the Tamil Nadu Co-operative Societies Act enumerates that "a registered society not being an establishment to which the payment of Gratuity Act, 1972 applies, may provide in its bylaws for payment of gratuity to the employees at such Rules and on such conditions as may be specified in the bylaws and such society may establish a gratuity fund or make other arrangements for the purpose." Therefore, the Act provides a choice to the Management to constitute a separate scheme and maintain a Gratuity Act for the purpose of settlement.
7. When the action is granted by way of statute to the Management of the Co-operative Societies and the writ petitioner management exercised the action by constituting a separate gratuity, which was approved by the Registrar of Co-operative
Society, then all such claims are to be settled through the provision of the Tamil Nadu Co-operative Societies Act.
8. As far as the Co-operative Societies registered under the Tamil Nadu Co-operative Societies Act are concerned, the said Act alone will prevail over the general law. In other words, as far as Co-operative Societies are concerned, Cooperative Societies Act is the Special Act and Gratuity Act is to be considered as General Law. Therefore, any grievances regarding the payment of gratuity is to be redressed by approaching the statutory authorities under the Tamil Nadu Cooperative Societies Act. Once, the Management has chosen to constitute a separate scheme and implement the scheme through its bylaws, which was approved by the Registrar of Co-operative Societies under the Act, then the grievances are to be redressed under the provisions of the Act and the General Act namely the Gratuity Act would not be applicable at all.
In other words, the provision of the payment of Gratuity Act is executed as Section 79 unambiguously stated that "a registered society not being an establishment to which the payment of Gratuity Act, 1972, applies. Therefore, when a separate scheme is implemented under Section 79 of the Tamil Nadu Co-operative Societies Act, the payment of Gratuity Act, 1972 would not be applicable to the employees of the Tamil Nadu Co-operative Societies Act. Thus, the jurisdiction of the competent authority under the payment of Gratuity Act is ousted. The grievances, if any, to the employees are to be redressed through the Tamil Nadu Co-operative Societies Act.
Tamil Nadu Co-operative Societies Act provides mechanism for redressal of grievance, more specifically, Section 153 of the Co-operative Societies Act provides revision and the Regional Joint Registrars are empowered to adjudicate the same and pass orders on merits and in accordance with law.
9. Section 154 provides review and therefore all such grievances regarding the payment of Gratuity is to be redressed by the employees of the Co-operative Society by filing a revision under Section 153 of the Co-operative Society Act and the first respondent authority under the payment of Gratuity Act has no jurisdiction to entertain any application as his jurisdiction has been ousted on account of fact that the Section 79 of the Tamil Nadu Co-operative Societies Act was implemented by the writ petitioner/management.
10. Under these circumstances, the grievances of the writ petitioner is to be redressed by filing an appropriate application before the competent authority under the Tamil Nadu Co-operative Societies Act. This Court, in view of the fact that the first respondent has no jurisdiction, is not inclined to decide the merits of this case. The second respondent employees are at liberty to approach the competent authority under the
provision of the Tamil Nadu Co-operative Societies Act for redressal of their grievances. In the event of filing any such revision petition, the competent authority shall entertain the writ petition and decide the same on merits and in accordance with law.
11. With these observations, the writ petitions stand allowed. No costs. Connected miscellaneous petitions are closed.
12. The learned counsel for the writ petitioner Management states that they have deposited the amount before the competent authority. In view of the fact that the writ petitions are allowed, the second respondent/ Controlling Authority/Assistant Commissioner of Labour is directed to repay the deposit amount with accrued interest within a period of four(4) weeks from the date of receipt of a copy of this order.
Sd/- Assistant Registrar(CS-Insp Cell) //True copy// Sub Assistant Registrar mp To The Authority under Payment of Gratuity Act (The Assistant Commissioner of Labour), Vellore. +3ccs to Mr.K.Prem Kumar, Advocate SR.No.98640, 98641, 98639 +1cc to Mr.C.Prakasam, Advocate SR.No.99070 +7cc to Mr.R.Arumugam, Advocate SR.No.98466 +1cc to Government Pleader SR.No.98947 W.P.Nos.29696 of 2016, W.P.Nos. 11971 to 11973 of 2013 and W.P.Nos. 26882 to 26884 of 2016 and W.M.P.Nos.23097 to 23099 of 2016 and WMP.No. 25699 of 2016 and M.P.Nos. 1 and 2 of 2013 BP(CO) GMY(22/09/2020)