The Management v. The Joint Commissioner Of

THE HIGH COURT OF JUDICATURE AT MADRAS DATED :29.11.2019

CORAM

THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.NO.25107 TO 25109 OF 2018 AND W.M.P.NO.25082 OF 2019, 29177, 29179, 29181 of 2018 The Management Rep.by the Regional Manager, Tamil Nadu Civil Supplies Corporation, Tiruppur Region.

..Petitioner in all WP's vs 1.

The Joint Commissioner of Labour, Coimbatore, (Appellate Authority as under thePayment of the Gratuity Act, 1972) .. 1st Respondent in all WPs 2.

The Assistant Commissioner of Labour, Coimbatore, (Controlling Authority as under thePayment of the Gratuity Act, 1972) .. 2nd Respondent in WP.No.25107 to 25109 of 2018 3.

Mr.G.Rajaram .. 3rd Respondent in WP.No.25107 of 2018 4.

Mr.C.Radhakrishnan .. 3rd Respondent in WP.No.25108 of 2018 5.

Mr.C.Govindaraj .. 3rd Respondent in WP.No.25109 of 2018 Prayer in W.P.No.25107 of 2018 :

Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, or any writ, order or direction to call for the records of the first respondent, The Joint Commissioner of Labour, Coimbatore, Appellate Authority as under the Payment of the Gratuity Act, 1972 in A.T.M.A/1570/18, 1569 of 2018, 1571 of 2018 dated 17.05.2018 and the order passed by the 2nd respondent The Assistant Commissioner of Labour, Coimbatore controlling Authority as under the Payment of the Gratuity Act, 1972 in GA.No.3/2016,

4/2016, 5/2016 dated 03.07.2017, 13.07.2017 For Petitioners : M/s.P.Paramasiva Doss in all WPs.

For Respondents : Mr.J.Ramesh in all WPs.

Additional Government Pleader for RR1 & 2 Mr.K.M.Ramesh for R3.

O R D E R

The order passed by the Appellate Tribunal under the Payment of the Gratuity Act, 1972 in A.T.M.A/1570/18 dated 17.05.2018 and confirmed the order of the 2nd respondent/The Assistant Commissioner of Labour, Coimbatore Controlling Authority as under the Payment of the Gratuity Act, 1972 in G.A.No.3/2016 dated 03.07.2017 is under challenge in the present writ petition.

2. The writ petitioner states that the third respondent/employee was initially recruited as a Apprentice Trainee/Trainee Bill Clerk on 29.11.1985. He was subjected for training from 29.11.1985 till 17.10.1990. Thereafter, his services were regularized from 18.10.1990. He was promoted to various posts and finally he was holding the post of Assistant in the Petitioner Corporation in Tiruppur Region. On attaining the age of superannuation on 30.06.2015, he was allowed to retire from service. The writ petitioner/Management settled the terminal benefits payable to the 3rd respondent and the gratuity amount was paid without considering the services rendered by the third respondent from 18.10.1990 to 30.06.2015.

Thus, the third respondent filed an application before the Controlling Authority under the provisions of the Gratuity Act, who in turn, considered the issues as well as verified the service records of the third respondent and allowed the petition by stating that the third respondent is entitled for gratuity by reckoning the period of services rendered Trainee from 1985 to 1990. Accordingly, gratuity was calculated and directed to be settled in favour of the third respondent. The writ petitioner/ Management filed an appeal before the Appellate Authority, who in turn, confirmed the order passed by the Controlling Authority. Thus, the writ petitioner is constrained to move the present writ petition.

3. The writ petitioner states that the training period cannot be reckoned as a qualifying service and therefore, the third respondent is not entitled for gratuity for the period from 1985 to 1990. The respondents 1 and 2 have erroneously considered the case of the third respondent and directed the writ petitioner/Management to settle the gratuity by counting

the training period from 1985 to 1990. It is reiterated that the Trainee Bill Clerk is not entitled for gratuity for the training period. Accordingly, the orders are liable to be scrapped.

4. The learned counsel appearing on behalf of the third respondent opposed the contentions by stating that the training period for 12 years itself is incorrect because a person cannot be in the post of Bill Clerk for a period of 12 years. Further, the third respondent was working as a regular employee for all purposes and performing the duties and responsibilities of the Bill Clerk and was drawing salary from 1985 onwards.

5. This being the factum, there is no reason for denying gratuity for the period of services rendered by him from 1985 to 1990. The Controlling Authoirty as well as the Appellate Authority under the Gratuity Act rightly granted the relief and there is no reason whatsoever to entertain the writ petition as the grounds raised are untenable.

6. In support of the said contention, the learned counsel for the writ petitioner cited the judgment of this Court dated 05.04.2018 passed in W.P.No.14321 of 2018, the relevant paragraph No.4 is extracted hereunder:

"4. The learned counsel for the writ petitioner states that the first respondent-workman had not served 30 years in the writ petitioner-Corporation. The first respondent-worman was appointed as a Trainee Salesman on 25.04.1978 and his services were confirmed as a permanent employee only with effect from 02.06.1990. Therefore, the calculation of 30 years of service for the purpose of granting gratuity is erroneous and the first respondent-workan had served about years in the writ petitionerCorporation.Therefore, the orders passed by the respondents 2 and 3 are in violation of the provisions of the Gratuity Act.

7. The third respondent, admittedly, was employed in the year 1985 and continuously working as Bill Clerk and was drawing the salary as applicable. This being the factum, this Court is of the opinion that the period of services rendered by the third respondent from the year 1985 is to be reckoned for the purpose of calculating the qualifying services for settlement of gratuity in accordance with Act itself. In this view of the matter, the respondents 1 and 2 have not committed any perversity or infirmity and the findings are in consonance with

the legal principles. Consequently, the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar mrn To 1.

The Joint Commissioner of Labour, Coimbatore, (Appellate Authority as under thePayment of the Gratuity Act, 1972) 2.

The Assistant Commissioner of Labour, Coimbatore, (Controlling Authority as under thePayment of the Gratuity Act, 1972) 3.

The Regional Manager, The Management, Tamil Nadu Civil Supplies Corporation, Tiruppur Region.

+1cc to Mr.J.Ramesh, Advocate, S.R.No.99859 +3cc to M/s.P.Paramasiva Doss, Advocate, S.R.No.99914, 99915, 99917 +1cc to the Government Pleader, S.R.No.100402 W.P.No.25107 to 25109 of 2018 and W.M.P.No. 25082 of 2019 GMR(CO) CS/31/01/2020