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2019 Supreme(Bom) 933
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
A.S. Chandurkar, J.
Sheikh Mehmood - Appellant
Vs.
M/S Universal Medikit Private Ltd. - Respondent
Writ Petition No. 4852 of 2018
Decided On : 08-07-2019
A.H. Jamal, Adv., A.J. Pathak, Adv., A.R. Kulkarni, Adv.
Headnote:
Payment of Gratuity Act, 1972 – Sections 2(q), 4(1), 7(1) and 7(2) - Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 – Section 28 - Termination of services - Seeking payment of gratuity - Petitioner was appointed as a Typist with respondent - He was subsequently promoted as Medical Representative - His services came to be terminated - He therefore filed an application under provisions of Payment of Gratuity Act, 1972 before the Controlling Authority seeking determination of amount of gratuity that was liable to be paid by the respondent to him - Controlling Authority passed an order directing respondent to pay the amount of gratuity with interest to the petitioner - Respondent had filed Writ Petition challenging order passed by the Controlling Authority on the ground that petitioner had not accepted order of termination but had in fact filed a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 challenging order of termination which was pending - In complaint that was filed by petitioner challenging order of termination, respondent filed an application for dismissal of complaint on ground that petitioner had approached Controlling Authority under provisions of the said Act seeking payment of gratuity on ground that his services had been terminated – Held, court have heard learned counsel for parties at length and court have given due consideration to their respective submissions - Under provisions of Section 4(1) of the said Act, gratuity is payable to an employee on termination of his employment after he has rendered continuous service for not less than five years either on his superannuation or retirement or resignation or on account of his death or disablement due to any accident or disease - From the aforesaid provisions it becomes clear that entitlement to receive gratuity is only after employment of employee has come to an end by modes prescribed therein which includes termination of services - If the employee is aggrieved by order of termination and thus avails legal remedy available to him to challenge order of termination, relief that he would be seeking is of reinstatement in service - Relationship of employer-employee would therefore be sought to be continued in this process - In such situation question of paying gratuity would not arise as the termination of services has not been accepted by employee and the action has been put to challenge - Thus from aforesaid it is clear that petitioner was not justified in refusing to deposit amount of gratuity as he has sought to challenge order of termination - In the aforesaid legal backdrop no fault can be found with equitable order passed by Industrial Court directing petitioner to deposit the amount of gratuity received by him pending adjudication of his complaint challenging the order of termination - In that view of the matter there is no case made out to interfere in writ jurisdiction - Writ petition stands dismissed.
JUDGMENT :
A.S. Chandurkar, J.
The correctness of an order passed by the Industrial Court directing the complainant to deposit the amount of gratuity received by him in Court till his challenge to the order of termination is adjudicated is under challenge in this writ petition.
Rule. Heard finally with consent of counsel for the parties.
The challenge raised in the present writ petition is to the order passed by the Industrial Court on 29/06/2018 allowing the revision application that was preferred by the respondent Nos.1 and 2 and directing the petitioner-complainant to deposit the amount of gratuity received by him within a period of two months from the date of its order in the light of the fact the petitioner had chosen to challenge the order of termination issued to him.
2. The facts in brief are that it is the case of the petitioner that he was appointed as a Typist on 29/07/1982 with the respondent Nos.1 and 2. He was subsequently promoted as Medical Representative in the year 2003. His services came to be terminated in the year 2005. He therefore filed an application under provisions of the Payment of Gratuity Act, 1972 (for short, the said Act) before the Controlling Authority seeking determination of the amount of gratuity that was liable to be paid by the respondent Nos.1 and 2 to him. The Controlling Authority passed an order directing the respondent Nos.1 and 2 to pay the amount of gratuity of Rs.97,405/- with interest to the petitioner. The respondent Nos.1 and 2 had filed Writ Petition No.853/2010 challenging the order passed by the Controlling Authority on the ground that the petitioner had not accepted the order of termination but had in fact filed a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 challenging the order of termination which was pending. This Court after observing that the respondent Nos.1 and 2 had not challenged the order of the Controlling Authority by filing an appeal so as to avoid the condition of pre-deposit refused to exercise writ jurisdiction. The appeal filed by the respondent Nos.1 and 2 thereafter challenging the order passed by the Controlling Authority was dismissed.
3. In the complaint that was filed by the petitioner challenging the order of termination, the respondent Nos.1 and 2 filed an application for dismissal of the complaint on the ground that the petitioner had approached the Controlling Authority under provisions of the said Act seeking payment of gratuity on the ground that his services had been terminated. Since the amount of gratuity had been directed to be paid there was no question of going into the aspect of termination of the petitioner's services. The said application filed below Exhibit-12 was however rejected on 16/04/2012. The respondent Nos.1 and 2 thereafter filed another application below Exhibit-61 before the Labour Court seeking a direction that the petitioner should deposit the amount of gratuity and terminal benefits received by him as those benefits had been received by accepting the order of termination. This application was opposed by the petitioner and the Labour Court by its order dated 17/02/2018 rejected that application. Being aggrieved the respondent Nos.1 and 2 filed revision application and the learned Judge of the Industrial Court proceeded to hold that the petitioner had accepted the amount of gratuity on the premise that his services had been terminated. As gratuity would be payable under Section 4 of the said Act only on termination of services, as an equitable relief the amount of gratuity received by the petitioner ought to be deposited and only on such deposit being made the adjudication of the complaint was directed to proceed. Being aggrieved by this order the petitioner has challenged the same.
4. Dr A. H. Jamal, learned counsel for the petitioner submitted that the Industrial Court was not justified in directing the petitioner to deposit the amount of gratuity received by him
