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2005 Supreme(Cal) 394
High Court Of Calcutta
Sadhan Kumar Gupta
BASUMATI CORPORATION LTD - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 2227 Of 2001
Decided On : 06/23/2005
The Assistant Labour Commissioner exceeded his authority by determining the amount of gratuity owed to the respondent under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, without referring the dispute to a competent Labour Court.
Headnote:
PAYMENT OF GRATUITY ACT - WORKING JOURNALISTS AND OTHER NEWSPAPER EMPLOYEES (CONDITIONS OF SERVICE) AND MISCELLANEOUS PROVISIONS ACT - SECTION 17 - The court held that the Assistant Labour Commissioner exceeded his authority by determining the amount of gratuity owed to the respondent under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, without referring the dispute to a competent Labour Court. The court clarified that the Assistant Labour Commissioner's role was limited to conciliation, and in the absence of a settlement, he should have referred the matter to the Labour Court for adjudication.
Fact of the Case:
The petitioner, a company, challenged a Government Order issued under Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, which directed the recovery of gratuity from the petitioner in favor of the respondent, a former employee. The petitioner contended that gratuity was paid to its employees, including journalists, under the Payment of Gratuity Act, 1972, and that the respondent was estopped from claiming further gratuity under the Working Journalists Act.
Finding of the Court:
The court found that the Assistant Labour Commissioner acted beyond his jurisdiction by determining the amount of gratuity owed to the respondent without referring the dispute to a competent Labour Court. The court held that the Assistant Labour Commissioner's role was limited to conciliation, and in the absence of a settlement, he should have referred the matter to the Labour Court for adjudication.
Issues: 1. Whether the Assistant Labour Commissioner had the authority to determine the amount of gratuity owed to the respondent without referring the dispute to a competent Labour Court. 2. Whether the respondent was estopped from claiming further gratuity under the Working Journalists Act.
Ratio Decidendi: 1. The court relied on the provisions of Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, which provides that if a question arises as to the amount due under the Act, the State Government may refer the question to a Labour Court for adjudication. 2. The court also relied on the Supreme Court decision in Kasturi and Sons (Pvt.) Ltd. v. N. Salivateswaran and anr., which held that Section 17 of the Working Journalists Act provides a procedure for recovering the amount due from an employer, not for determining the amount due.
Final Decision: The court allowed the writ petition and set aside the impugned Government Order and the certificate issued by the Assistant Labour Commissioner. The court directed the State Government to refer the dispute to an appropriate Labour Court for determination.
( 1 ) THE writ petition has been filed against the Government Order No. 1084 I. R. dated 13. 6. 2001 whereby in purported exercise of the power under sub section 1 of Section 17 of the Working Journalists and other Newspaper employees (Conditions of Service)"and Miscellaneous Provisions Act, 1955, a certificate for recovery of the money was issued to the Collector, Calcutta, from the petitioner/company viz. M/s. Basumati Corporation Limited. The petitioner/company is paying gratuity to its employees as per provisions of the Payment of Gratuity Act and Rules made thereunder. The employees of the petitioner/company including the working journalists agreed to that and all along received payment of gratuity as per provisions of the said Act without raising any objection.
( 2 ) THE respondent No. 5 was an employee of the petitioner/company and he retired on 10. 1. 1994 and thereafter he was paid gratuity amounting to Rs. 48,829/- on 8. 3. 1994. Said amount was paid under the Payment of gratuity Act, 1972. But the said respondent No. 5 by his letter dated 29. 3. 1994 demanded further payment of gratuity under the Payment of gratuity Act, 1972. He also demanded further payment of gratuity under the new Payment of Gratuity Act, as he was also covered under the said Act. After receiving the said letter, the petitioner/company checked its calculation and thereafter being satisfied, informed the respondent No. 5 that the amount of gratuity was correctly calculated. The respondent No. 5, after two years, made a further representation to the Managing Director and in his letter gated 4. 3. 1996 he for the first time demanded that he was entitled to get the benefit of gratuity under the Working Journalists and other Newspaper employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 instead of the Payment of Gratuity Act, 1972. The petitioner/company submits ihat the gratuity all along was paid to its employees including the working ,ournalists under the Payment of Gratuity Act, 1972 and it has been confirmed oy the State Government by its communication dated 3. 6. 1996. As the petitioner/company did not allow the said representation of the respondent no. 5, so he made a representation before the Secretary, Government of west Bengal, Labour Department by his letter dated 17. 5. 1996 and on the basis of the said representation the Assistant Labour Commissioner, government of West Bengal initiated a proceeding under the Working journalists and other Newspaper Employees (Conditions of Service) and miscellaneous Provisions Act, 1955 and issued a notice on 17. 1. 1997 to the Corporation. On 20. 2. 1997 the petitioner/corporation filed written statement wherein it was clearly stated that the employees of the said corporation were entitled to get gratuity under the Payment of Gratuity Act, 1972 and respondent No. 5 also accepted the payment made as per the said Act without any objection and as such he was estopped from making any further claim under the Working Journalists and other Newspaper employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. But the said Assistant Labour Commissioner did not consider all these things and by the notice dated 6. 8. 1997 he in purported exercise of the power conferred by sub section 1 of Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous provisions Act, 1955 proceeded with the matter. Even after conclusion of the proceeding, no order was passed by the said Assistant Labour commissioner and although the disputed question of the applicability of the act in respect of the payment of gratuity could not be settled by and between the parties still the said Assistant Labour Commissioner did not refer the matter to the State Government for referring the said dispute to any Labour court constituted under the provisions of the Industrial Dispute Act. Instead the said Assistant Labour Commissioner by his order da
