Punjab National Bank v. The Assistant Labour Commissioner And Another

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WPA/848/2023 Punjab National Bank Vs.

The Assistant Labour Commissioner and another Ms. Parna Roy ... for the petitioner Mr. Rakesh Kumar ... for the respondent November 23, 2023 [SR] Item No.35 1.

This writ petition is directed against an order passed by the controlling authority under the payment of Gratuity Act, 1972, by which the gratuity amount was adjudicated and the petitioner was directed to pay a sum of Rs. 3,10,650/- along with 10% simple interest as per the notification no. 874(E) dated 1.10.1987 with effect from 22.07.2021 till the actual date of payment.

2.

After extensive hearing a detailed order was passed on 31st March, 2022 in favour of the private respondent. 3.

The private respondent is represented by Mr. Rakesh Kumar, advocate appointed by the State Legal Service Authority.

4.

The learned advocate has raised a preliminary objection with regard to the maintainability of the writ petitioner in view of statutory remedy available to the writ petitioner.

5.

The statutory remedy to prefer an appeal against the said order is provided in section 7 sub section 7 of the Payment of Gratuity Act. For the convenience section 7 (7) of the Act is reproduce below:- "Any person aggrieved by an order under sub-section (4), may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:

Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days."

6.

The said sub section clearly provides that an appeal against order of the authority shall be filed within a period of sixty days with a grace period of another sixty days provided the applicant is able to offer satisfactory explanation for such delay. By reason of the said special provision the embargo under Section 29 (2) of the Limitation Act comes into play. This issue has been addressed by the Kerala High Court in The Secretary, Sree Avittom Thirunal Hospital vs. State of Kerala (WP (C) No. 2502 of 2021 decided on 23.01.2023, in paragraph 11 of the judgment which reads:

11. On plain and simple reading of the aforementioned provisions, it is evident that the legislature while enacting sub Section 7 of Section 7 specifically excluded the application of limitation Act by providing the limitation of appeal for a period of 60+60 days. Otherwise, the limitation to file an appeal under the schedule of the limitation Act is thirty (30) days. Thus for all intends and purposes, there cannot be any condonation of delay by taking the aid of the aforementioned provisions by entertaining an application under Section 5 of the Limitation Act. In the judgment cited on behalf of the petitioner Commissioner of Sales Tax, U.P v. Madan Lal (supra) and Commissioner of Customs and Central Excise (supra), was a case wherein both aforementioned provisions ie.

, the UP Sales Tax Act and the Central Excise Act there was no exclusion of the limitation Act. It is in that context the provisions of Section 29(2) of the Limitation Act were brought into consideration. Thus there cannot be quarrel to the findings rendered in the judgments (supra).

59) in Ganesan (supra) extracted herein below would be applicable in the instant case.

58. The ratio which can be culled from above noted judgments, especially judgment of threeJudge Benches, as noted above, is as follows:

(1) The suits, appeals and applications referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a Court.

(2) The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under Act, 1959.

(3) Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications

referred to in a special or local law to be filed in Court and not before statutory authorities like Commissioner under Act, 1959.

(4) However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of any provision of Limitation Act which can be decided only after looking into the scheme of particular, special or local law.

59. We, thus, answer question Nos.2 and 3 in the following manner:

(i) The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court.

(ii) Section 29(2 ) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act." 7.

Although the writ court may not bound by the provision of such special statute, however, having regards to the fact that the petitioner having failed to avail the remedy within the statutory period and that no reasonable explanation has been offered for the delay of more than one year, the writ court cannot extend its equitable jurisdiction to condone such delay and consider the petition on merits.

8.

If a party has failed to demonstrate that in spite of due diligence the appeal could not be preferred within a period of limitation, the writ court would refuse to decide the writ petition on merits except in exceptional circumstances. It is a matter of discretion.

9.

In the instant case I find that the writ petitioner was running from pillar to post for his gratuity. He was in employment till 27th January, 2021. Although he has received all other benefits but the respondent had remained silent on gratuity and compelled the petitioner to approach the competent authority for payment of gratuity amount. The matter was adjourned on a number of occasion at the instance of the writ petitioner.

10.

The petitioner joined the United Bank of India as Mini Deposit Collector on 1st August, 1994. On the basis of terms and conditions of service laid down by the United Bank of India, Junglighat Branch in its letter No. JGT/MDSS/77/94 dated 25th July, 1994, the Union Bank of India with effect from 1st April, 2020 amalgamated with the Punjab Nation Bank that is the writ petitioner thereafter he resigned from service on 27th January, 2021 after rendering total service of more than 26 years. In deciding the claim in favour of the respondent the controlling authority has taken into consideration the following document:

i) the UBI HO offer letter No. JGT/MDSS/77/94 dated 25.07.1994 was silent on gratuity.

ii) The UBI Circular No. MKT/MDSS/C-21/OM145/2001 dated 04.07.2001 mentioned that "gratuity @ 15 days' average commission for each year of service rendered (commission for this purpose includes fall back wages and commission." iii) the UBI letter dated 01.08.2001 addressed to the applicant mentioned that "gratuity @ 15 days' average commission for each year of service rendered."

iv) the UBI Circular No. MKT/MDSS/53/OM-472/1617 dated 28.10.2016 mentioned that "no gratuity is to be paid".

v) the PNB RBD ® Circular No. 09/2019 dated 26.02.2019 stated at Point No. 16 that for those who opt for ICT based scheme through hand held terminals Gratuity may be claimed by the Mini Depositor if they are entitled, under the payment of gratuity Act 1972 before the appropriate forum. 11.

After the amalgamation the applicant would be covered by the rules/guidelines of the Punjab National Bank as existed at the time of relinquishment of service. It appears that the private respondent who worked with a Hand Held Terminal was governed by the circular of the Punjab National Bank no. 09/2019 dated 26th February, 2019 and in terms of point number 16 of the said circular, the gratuity was claimed by the petitioner and granted by the competent authority on consideration of section 4(i) of the Payment of Gratuity act, 1972 and the definition of employee under section 2(e) the said Act. The said authority has also taken into consideration the definition of wages 2(s) of the said Act.

12.

The private respondent was engaged by the UBI as Mini Depositor Collector under MDSS scheme for more

than twenty six years and he had received full backwages, conveyance and commission by the petitioner. It was on such conspectus of facts that the competent authority retuned a finding in favour of the private respondent. 13.

The final distinction between the commission and wages has been addressed by the competent authority by referring the decisions of the Hon'ble Supreme Court in Indian Bank Association vs. The Workmen of Syndicate bank and others reported at 2001 (1) SCR 1011 in which the Supreme Court has held that the commission received by Deposit Collectors is nothing else but wages, which is dependent on the productivity. This commission is paid for promoting the business of the various banks.

14.

The tribunal has recorded and it is also an admitted position that the PNB RBD(R) circular dated 09/2019 was also based on the judgment dated 05.10.2015 of the Delhi High Court in the matter of Canara Bank vs. All India Bank Deposit Collectors and the judgment also referred the conveyance as " conveyance allowance".

15.

Accordingly, the submission on behalf of the writ petitioner that it was not and it cannot be treated as wages within the meaning of section 2(s) does not stand. 16.

The writ petitioner cannot by reason of its conduct postpone the legal right of the private respondent. If the writ court is of the view the petitioner is unable to explain the delay in approaching the writ court, the writ petition may not be entertained as entertaining the writ petition, a serious prejudice might be caused to the respondent. 17.

Moreover, by reason of inaction on the part of the writ petitioner a statutory remedy is lost. The writ court cannot direct condonation of delay when the statute does not provide for any such provision. The said provision is required to be considered strictly.

18.

However, in exceptional circumstance, the writ court could direct the authority concerned to exercise its appellate power where the writ court prima facie found that the order is clearly perverse or contrary to law or without jurisdiction.

19.

Since I am of the view that the delay was inexcusable and the private respondent is otherwise entitled to get gratuity amount as claimed. I am not inclined to entertain the writ petition. The instant writ petition stand dismissed.

20.

The petitioner shall deposit the entire amount payable in terms of the order passed by the controlling authority within a period of four weeks.

21.

The writ petition stands dismissed. However, there shall be no order as to costs.

22.

Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.

( Soumen Sen, J.)