The Superintending Engineer v. The Assistant Commissioner Of Labour
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.01.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.(MD)Nos.5134/2020, 859/2022, 17828/2021 and 21093 of 2021 and W.M.P.(MD).Nos.4481 of 2020, 688 and 689 of 2022, 14696, 14697 and 14698 of 2021, 17688, 17690 and 17692 of 2021 W.P.(MD)No.5134 of 2020 1.The Superintending Engineer, Karur Electricity Distribution Circle, Tamil Nadu Electricity Board (TNEB), (Tamil Nadu Generation and Distribution Corporation), Karur 639 002.
2.The Chief Engineer /Distribution, Tamil Nadu General and Distribution Corporation (TANGEDCO), Trichy Region, Thennur, Trichy.
... Petitioners Vs.
1.The Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act, 1972), Dindigul.
2.Thiru.V.Vellaiappan ... Respondents PRAYER : Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in P.G.I.A.No.1 of 2018 and P.G.No.14 of 2018 and quash its order dated 09.05.2019 and direct the first respondent to consider the condonation of delay application and thereafter, take up the main application for gratuity for fresh consideration. For Petitioners : Mr.T.S.Gopalan for M/s.T.S.Gopalan and Co For R1 : Mr.S.P.Maharajan Special Government Pleader For R2 : Mr.T.Aswin Rajasimman W.P.(MD)No.859 of 2022 1.P.Ramakrishnan 2.S.Jeyapapaul Singh 3.P.Venugopalan 4.A.Subramanian 5.SU.Namachivayan 6.M.Selvaraj 7.G.Navamani 8.V.Sethuraman
9.V.Chandran 10.R.Rajamani 11.D.Vellaiammal 12.Smt.P.Palammal 13.K.Ramu 14.K.Chelliah 15.M.lakshmi ... Petitioners Vs.
1.State of Tamil Nadu represented by its Secretary to the Government, Labour and Employment Department, Fort St. George, Chennai -9.
2.The Commissioner of Labour, Office of the Commissioner of Labour, Chennai -6.
3.Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), formerly TNEB, represented by its Chairman / Director, 144, Anna Salai, Chennai 600 002.
4.Tamil Nadu Electricity Board (TNEB), Presently known as Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its Secretary, 144, Anna Salai, Chennai 600 002.
5.The Deputy Commissioner of Labour, Authority under the Payment of Gratuity Act, Combined Labour Court Complex, Bharathi Ula Salai, Race Course Salai, Madurai 625 002.
6.The Additional Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, Ist Floor, Tamil Nadu Housing Board, Ellis Nagar, Madurai 625 001.
7.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Office of Joint Commissioner of Labour, Sengulam Colony, Tiruchirapalli 620 020.
8.The Joint Commissioner of Labour, The Appellate Authority under the Payment of Gratuity Act, Sengulam Colony, Tiruchirapalli 620 020.
9.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Dindigul Collector Office, Chettinaickenpatti, Dindigul 624 004.
10.The Deputy Commissioner of Labour - Tirunelveli, The Controlling Authority under the Payment of Gratuity Act, Combined Labour Department Office Buildings, Opposite to All India Radio, Konam, Nagercoil, Kanyakumari District.
... Respondents PRAYER : Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order in Z3/3691/2021-1 on the file of the second respondent dated 13.07.2021 and quash the same as illegal and consequently for a direction, directing the first respondent to cancel the exemption granted in favour of the third respondent Corporation, in the light of the judgment of this Court in W.P.(MD).No.33704 of 2002 dated 04.03.2011 and to issue suitable orders clarifying that the petitioners are all entitled for gratuity under Payment of Gratuity Act, 1972 which is more beneficial than the gratuity under the Pension Scheme of the third respondent and entitled for payment of difference in gratuity along with interest at the rate of 12% Compound Interest per annum within the time period stipulated by this Court.
For Petitioners : Mr.T.Aswin Rajasimman for M/s. T.Lajapathi Roy For R1, R2, R5 to R10 : Mr.S.P.Maharajan Special Government Pleader For R3 and R4 : Mr.M.Paramasivan W.P.(MD)No.21093 of 2021 1.R.Muthuirulandi 2.Smt.K.Chinnathal 3.G.Krishnan 4.S.Ayyam Perumal 5.P.Jesuraj 6.M.A.Abdul jabbar 7.C.Rajan 8.P.Kolappa Pillai 9.P.Ganesan 10.A.Soloman Edwin 11.S.Mutham Perumal 12.E.Gombal 13.R.Pitchai 14.M.Rajagopal 15.A.Muthu 16.R.Karunanithi 17.T.pakkirisamy 18.A.John Napoleon 19.R.Perumal 20.D.Martin Deborus 21.M.Dakhsnamoorthy 22.S.Emalda 23.C.Elongovan
24.S.Ramasamy 25.K.Rajendran 26.K.Subramanian 27.K.Poonusamy 28.S.Jesudasan 29.M.Sudalai 30.P.Kannan 31.R.Ramar 32.K.Murugan 33.M.Muthukrishnan 34.R.Hariharan 35.K.Vadivel 36.N.Shunmugavelu 37.M.Ganthi 38.R.Ganthi 39.G.Kannan 40.R.Lakshmanan 41.L.Krishnan 42.R.Saivadurai 43.P.Ganesan 44.S.Jeyaprakash 45.R.Dinakaran 46.K.Uthiran 47.M.Govindarajan 48.S.Sarathamani Devi ... Petitioners Vs.
1.State of Tamil Nadu represented by its Secretary to the Government, Labour and Employment Department, Fort St. George, Chennai -9.
2.The Commissioner of Labour, Office of the Commissioner of Labour, Chennai -6.
3.Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), formerly TNEB, represented by its Chairman / Director, 144, Anna Salai, Chennai 600 002.
4.Tamil Nadu Electricity Board (TNEB), Presently known as Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its Secretary, 144, Anna Salai, Chennai 600 002.
5.The Deputy Commissioner of Labour, Authority under the Payment of Gratuity Act, Combined Labour Court Complex, Bharathi Ula Salai, Race Course Salai, Madurai 625 002.
6.The Additional Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, Ist Floor, Tamil Nadu Housing Board, Ellis Nagar, Madurai 625 001.
7.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Office of Joint Commissioner of Labour, Sengulam Colony, Tiruchirapalli 620 020.
8.The Joint Commissioner of Labour, The Appellate Authority under the Payment of Gratuity Act, Sengulam Colony, Tiruchirapalli 620 020.
9.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Dindigul Collector Office, Chettinaickenpatti, Dindigul 624 004.
10.The Deputy Commissioner of Labour - Tirunelveli, The Controlling Authority under the Payment of Gratuity Act, Combined Labour Department Office Buildings, Opposite to All India Radio, Konam, Nagercoil, Kanyakumari District.
... Respondents PRAYER : Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order in Z3/3691/2021-1 on the file of the second respondent dated 13.07.2021 and quash the same as illegal and consequently for a direction, directing the first respondent to cancel the exemption granted in favour of the third respondent Corporation, in the light
of the judgment of this Court in W.P.(MD).No.33704 of 2002 dated 04.03.2011 and to issue suitable orders clarifying that the petitioners are all entitled for gratuity under Payment of Gratuity Act, 1972 which is more beneficial than the gratuity under the Pension Scheme of the third respondent and entitled for payment of difference in gratuity along with interest at the rate of 12% Compound Interest per annum within the time period stipulated by this Court.
For Petitioners : Mr.T.Aswin Rajasimman for M/s. T.Lajapathi Roy For R1, R2, R5 to R10 : Mr.S.P.Maharajan Special Government Pleader For R3 and R4 : Mr.M.Paramasivan W.P.(MD)No.17828 of 2021 1.V.Vellaiappan 2.K.Rajacholan 3.K.Marappan 4.V.Krishnan 5.P.Nagappan 6.A.Subramanian 7.Dhanapackiyam 8.T.kuppan 9.M.Duraimanicakkam 10.M.Chinnan 11.S.Dhanapal
12.G.Kathirvel 13.R.Santhanakrishnan 14.T.Ramu 15.P.Ramanujam 16.A.Ganeshan 17.S.Susairaj 18.M.Vaiyapuri 19.R.Muthiyan 20.P.Balasubdram 21.M.Subramanian 22.P.Anbalagan 23.C.Vincent Cardoge 24.T.Devasahayam 25.A.picthai 26.K.Antonyraj 27.A.Solaman 28.G.Pappaiah 29.R.Sethu 30.M.Maheswari 31.P.Murugesan 32.S.Rethinam 33.R.Jayaraj 34.M.Thangavel 35.S.Velayutham 36.G.Srinivasan 37.D.Jaganathan 38.P.Marimuthu 39.R.Jayaraman 40.R.Gurusami 41.P.Balachandran 42.R.Arusamy 43.V.Palaniyappan 44.K.Durgaiyandi 45.N.Arasuappan 46.N.Petchimuthu
47.N.Balan 48.K.Thangaraju 49.M.Karunanidhi 50.G.Pandian 51.V.Ayyyavoo 52.S.Nagan 53.A.Ayyasamy 54.S.Nagarajan 55.U.Krishnan 56.A.Damullalam 57.S.Sundramurhi 58.K.Gandhi 59.K.Gandhi 60.M.Govindan 61.K.Nagasamy 62.R.Loganathan 63.M.Manikkam 64.R.Mahalingam 65.M.Chinnathambi 66.K.Sathaia 67.PK.Karuppaiah 68.K.karuppiah 69.C.Muthusamy 70.K.Muthuramalingam 71.S.Sabasthian 72.N.Angusamy 73.C.Ganesan 74.R.Muthukrishnan 75.N.Ganesan 76.R.SEkaran 77.M.Ganesan 78.S.Soundaram 79.N.Ragavan 80.N.Solapandiyan 81.M.Rajendran
82.R.Gananshanmugam 83.M.Angusamy 84.S.Murugan 85.R.Ambigai Sundaram 86.V.Gowri 87.B.Balu 88.M.Sumathi 89.V.Mariammal 90.V.Sethuraman 91.M.Abdul Hameed 92.M.Natrajan 93.P.Kuppusamy 94.K.Palani 95.S.Sudarsan 96.E.Gangaiyan 97.V.Thiruvettai 98.P.Ramasamy 99.P.R.Suriya Kumar 100.R.R.Govindraj 101.S.Thangapandi 102.P.Valli 103.S.Nargisjan 104.G.Saroja 105.S.Arumugam 106.V.Murugandi 107.V.Ganesan 108.V.V.Kannan 109.P.Raman 110.S.Velusamy 111.P.Chinnamuthu ... Petitioners Vs.
1.State of Tamil Nadu represented by its Secretary to the Government, Labour and Employment Department, Fort St. George, Chennai -9.
2.The Commissioner of Labour, Office of the Commissioner of Labour, Chennai -6.
3.Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), formerly TNEB, represented by its Chairman / Director, 144, Anna Salai, Chennai 600 002.
4.Tamil Nadu Electricity Board (TNEB), Presently known as Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its Secretary, 144, Anna Salai, Chennai 600 002.
5.The Deputy Commissioner of Labour, Authority under the Payment of Gratuity Act, Combined Labour Court Complex, Bharathi Ula Salai, Race Course Salai, Madurai 625 002.
6.The Additional Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, Ist Floor, Tamil Nadu Housing Board, Ellis Nagar, Madurai 625 001.
7.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Office of Joint Commissioner of Labour, Sengulam Colony, Tiruchirapalli 620 020.
8.The Joint Commissioner of Labour, The Appellate Authority under the Payment of Gratuity Act, Sengulam Colony, Tiruchirapalli 620 020.
9.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Dindigul Collector Office, Chettinaickenpatti, Dindigul 624 004.
10.The Deputy Commissioner of Labour - Tirunelveli, The Controlling Authority under the Payment of Gratuity Act, Combined Labour Department Office Buildings, Opposite to All India Radio, Konam, Nagercoil, Kanyakumari District.
... Respondents
PRAYER : Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order in Z3/3691/2021-1 on the file of the second dated 13.07.2021 and quash the same as illegal and consequently for a direction, directing the first respondent to cancel the exemption granted in favour of the third respondent Corporation, in the light of the judgment of this Court in W.P.(MD).No.33704 of 2002 dated 04.03.2011 and to issue suitable orders clarifying that the petitioners are all entitled for gratuity under Payment of Gratuity Act, 1972 which is more beneficial than the gratuity under the Pension Scheme of the third respondent and entitled for payment of difference in gratuity along with interest at the rate of 12% Compound Interest per annum within the time period stipulated by this Court.
For Petitioners : Mr.T.Aswin Rajasimman for M/s. T.Lajapathi Roy For R1, R2, R5 to R10 : Mr.S.P.Maharajan Special Government Pleader For R3 and R4 : Mr.M.Paramasivan
C O M M O N O R D E R Since the issue involved in these writ petitions is one and the same, they have been taken up together and disposed of by this common order.
2. The petitioners in W.P.(MD).Nos.859 of 2022, 17828 of 2021 and 21093 of 2021 and the second respondent in W.P.(MD).No.5134 of 2020 are referred to as 'employees of the Corporation' and the Tamil Nadu Electricity Board is referred to as 'respondent Corporation'.
3. The petitioners are the retired employees of the respondent Corporation and they were retired from service on various dates. Since the Office of the Deputy Commissioner of Labours, who are the controlling authorities under Payment of Gratuity Act 1972 (hereinafter referred to as the Act) comes within the territorial jurisdiction of this Court, the employees of the Corporation have filed these writ petitions before this Court. The Tamil Nadu Generation and Distribution Corporation Limited has not paid
the gratuity amount to their employees, as per the Act. Hence, some of the employees had approached the Deputy Commissioner of Labour and obtained orders for grant of gratuity under the Act. Aggrieved by the same, the respondent Corporation has preferred a writ petition in W.P.(MD).No. 7859 of 2021 before this Court, seeking to consider the representation of the Corporation and not to entertain any application under the Act against the respondent Corporation, contrary to the exemption granted under Section 5 of the Act, vide G.O.(Ms.)No.699, Labour and Employment Department, dated 16.03.1983. Despite the Gratuity authority entertained the applications filed by the retired employees, aggrieved by the order of the Controlling authority, the respondent Corporation filed the writ petition in W.P.(MD).No.
5134 of 2020 and the employees of the respondent Corporation filed the other writ petitions before this Court challenging the impugned order dated 13.07.2021, wherein, the Commissioner of Labour issued a direction to the Gratuity authority not to entertain application against TANGEDO claiming gratuity filed by persons under the Pension Scheme.
4. The learned counsel appearing for the employees of the Corporation would submit that the petitioners are the retired employees of the respondent Corporation and they are receiving pension under the Pension Rules of the respondent Corporation. Apart from that, they are entitled for gratuity under the Act and depriving their rights, the Commissioner of Labour issued a direction to the Gratuity authority not to entertain any application against TANGEDCO for claiming gratuity filed by persons under the Pension Scheme, which is not sustainable one and the same is contrary to the order passed by this Court in W.P.(MD).No.33704 of 2002 and as against the decision of the Apex Court in the case of Allahabad Bank Vs. All India Allahabad Bank Retired Employees Association reported in 2010 (2) SCC 44. Accordingly, he prayed for appropriate orders.
5. The learned counsel appearing for the respondent Corporation would submit that as per Section 5 of the Act, the State Government may, by notification and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oil field, plantation, port, railway company or shop to which this Act applies from the operation
of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment factory, mine, oil field, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. The very same State Government, by notification and subject to such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oil field, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
6. As per the power available under Section 5 of the Act, the State Government has issued G.O.(Ms.).No.699, Labour and Employment Department, dated 16.03.1983, exempting from the application of Payment of Gratuity Act to the respondent Corporation and the same was confirmed by the Division Bench of this Court in W.A.No.75 of 2018. The Division
Bench of this Court, vide order dated 27.09.2018, set aside the order passed by the learned single Judge and confirmed the exemption granted to the respondent Corporation and the decision of the Apex Court relied on by the learned counsel for the petitioners is not applicable to the case on hand. Hence, he prayed for appropriate orders.
7. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
8. The issue arises in the present writ petitions is whether the person, who receiving the pension, is entitled for gratuity or not. For better appreciation, Section 5 of the said Act reads as follows: Power to exempt "(1) The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port,
railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
(2) The appropriate Government may, by notification and subject to such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
(3) A notification issued under sub-section (1) or sub-section
(2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interests of any person. "
9. A perusal of Section 5 of the Act reveals that the State Government have power to exempt any establishment or any employee for getting gratuity amount, if they received gratuity or pensionary benefits not less than the benefits conferred under this Act. Admittedly, the petitioners are the retired employees of the respondent Corporation and they are also
pensioners and already they were paid the death cum retirement gratuity under the Pension Scheme. Apart from that, they have made applications before the Gratuity authority claiming gratuity amount under the Payment of Gratuity Act, 1972. The learned single Judge has allowed the writ petition in W.P.(MD).No.33704 of 2002 filed by the employee of the respondent Corporation claiming gratuity amount under the Act 1972. However, the same was challenged before the Division Bench of this Court and the Division Bench of this Court has set aside the order and held in favour of the respondent Board. Equally, it is also undisputed that the State Government granted exemption to the respondent Corporation from application of the Act vide G.O.(Ms.)No.699, Labour and Employment Department dated 16.03.1983.
Further, this Court has perused the order of learned single Judge and the learned single Judge order was modified by the Division Bench of this Court. Hence, as a judicial discipline, this measure was followed by the Division Bench of this Court and not carrying the Apex Court decision. In the Apex Court decision, the establishment, who was arrayed as a party before the Apex Court, was not exempted from payment of gratuity.
respondent Corporation from payment of gratuity in respect of the person, who receiving pension from the respondent Corporation.
10. In view of the above, the writ petition in W.P.(MD).No.5134 of 2020 filed by the respondent Corporation is allowed and the other writ petitions in W.P.(MD).Nos.859 of 2022, 17828 of 2021 and 21093 of 2021 filed by the employees of the Corporation are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed. 30.01.2023 akv To 1.The Secretary to the Government, State of Tamil Nadu, Labour and Employment Department, Fort St. George, Chennai -9.
2.The Commissioner of Labour, Office of the Commissioner of Labour, Chennai -6.
3.Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), formerly TNEB, represented by its Chairman / Director, 144, Anna Salai, Chennai 600 002.
4.Tamil Nadu Electricity Board (TNEB), Presently known as Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its Secretary, 144, Anna Salai, Chennai 600 002.
5.The Deputy Commissioner of Labour, Authority under the Payment of Gratuity Act, Combined Labour Court Complex, Bharathi Ula Salai, Race Course Salai, Madurai 625 002.
6.The Additional Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, Ist Floor, Tamil Nadu Housing Board, Ellis Nagar, Madurai 625 001.
7.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Office of Joint Commissioner of Labour, Sengulam Colony, Tiruchirapalli 620 020.
8.The Joint Commissioner of Labour, The Appellate Authority under the Payment of Gratuity Act, Sengulam Colony, Tiruchirapalli 620 020.
9.The Deputy Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Dindigul Collector Office, Chettinaickenpatti, Dindigul 624 004.
10.The Deputy Commissioner of Labour - Tirunelveli, The Controlling Authority under the Payment of Gratuity Act, Combined Labour Department Office Buildings, Opposite to All India Radio, Konam, Nagercoil, Kanyakumari District.
11.The Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act, 1972), Dindigul.
M.DHANDAPANI,J.
akv W.P.(MD)Nos.5134/2020, 859/2022, 17828/2021 and 21093 of 2021 30.01.2023