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2019 Supreme(All) 2173
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
VIVEK CHAUDHARY, J.
M.D./Chairman Administrative Committee/Occupier Lko. and Ors. – Appellants
Versus
Krishna Bihari Yadav and Ors. – Respondents
Misc. Single Nos. 20659, 19524, 19521, 19553, 19573, 19592, 19540, 19577, 19518, 19563, 19584, 19589, 19536, 19538, 19567, 19580, 19681, 19685, 19714, 19725, 19728, 19732, 19738, 19741, 19676, 19710, 19718, 19722, 19736, 19743, 19746, 20630, 20632, 20634, 20691, 20700, 20738, 20741, 20747, 20637, 20640, 20697, 20699, 20735, 20737, 20740, 20746, 20598, 20600, 20633, 20636, 20686, 20690, 20692, 20705, 20708, 20720, 20688, 20687, 20641, 20694, 20702, 20706, 20744, 20742, 20718, 21780, 21705, 21852, 21699, 21703, 21775, 21801, 21810, 21704, 21805, 21700, 21706, 21848, 21696, 21697, 21701, 21707, 21844, 22080, 22084, 22087, 22090, 22082, 22085, 22089, 22091 and 22263 of 2019
Decided On : 23-10-2019
Advocate Appeared:
For the Appellant : Manoj Kumar, Arvind Kumar Pandey, Sridhar Awasthi, Samanvya Dhar Dwivedi, Anupam Mishra, Atma Ram Mishra and Pankaj Patel
For the Respondents: C.S.C., A.N. Tripathi and M.K. Sahu
Headnote:
Payment of Gratuity Act, 1972 – petitioner PCDF introduced a Voluntary Retirement Scheme (VRS). Amongst other conditions, the VRS scheme in clause-3(kha) provided that the employees adopting the same will be paid gratuity as per the gratuity scheme applicable in PCDF. a clarification to the VRS scheme was issued, Clause-1 whereof clarified that as per the clause 28-Sa(3) of the gratuity scheme the maximum limit of gratuity amount payable shall be Rs. 3.5 Lakhs. All the respondents/employees applied under the aforesaid VRS scheme and in and around they all accepted their VRS amounts, including Rs. 3.5 Lakhs as their gratuity. In and around, representations were made for payment of gratuity which was claimed to be Rs. 6.5 Lakhs. Since no action was taken on the representations made, therefore, in applications were filed before the respondent no. 2, Controlling Authority. Objections were taken to the said application by the petitioner-PCDF. All the aforesaid applications stand allowed by the impugned orders and, thereafter notices were also issued for payment of the gratuity amount. While allowing the representations the Controlling Authority has also condoned the delay in filing the claim applications. The said orders and notices are under consideration before this Court in the present bunch of petitions –Held The only exemption available could be under Section 5 of the Gratuity Act, where power is given to the appropriate Government to grant exemption by way of a notification. Admittedly, no such exemption under Section 5 of the Gratuity Act is notified by the State Government. Thus, it is the provisions of the Gratuity Act which will have an over-riding effect over and above the provisions of Co-operative Societies Act. Similarly, no document or contract, be it the V.R.S. signed by the parties, would come in way of application of the Gratuity Act of the same.
Facts of The Case:
Lastly a feeble attempt was made to argue that the PCDF is not in financial position to pay the gratuity amount as directed by the competent authority. The payment of gratuity is a statutory responsibility of the petitioner. They cannot simply say that they are not in a financial position to pay the same. It was their statutory duty to make provisions for the same and, hence, this Court cannot interfere with regard to a statutory liability merely on the ground that the petitioner is financially not in a position to pay the same.
Finding of The Court:
In view thereof, it is held that it is the Payment of Gratuity Act, 1972 and not the Co-operative Societies Act, or Regulations framed thereunder which would be applicable. Any contract, i.e., the signing of the voluntarily retirement scheme or any other instrument would also not come in way, in view of Section 14 of the Gratuity Act, for the purposes of payment of gratuity by the petitioner to the respondent-employees. Hence, no case for interference with the impugned orders and notices is made out. Thus, all these writ petitions having no force, are dismissed.
Result: Appeal Allowed.
ORDER :
Vivek Chaudhary, J.
1. This bunch of writ petitions is filed by petitioner, Pradeshik Co-operative Dairy Federation Ltd. (hereinafter referred to as 'PCDF'), challenging the orders of different dates and notices for payment of gratuity passed and issued by the Controlling Authority/Assistant Labour Commissioner, Lucknow (respondent no. 2) under the Payment of Gratuity Act, 1972.
2. The relevant facts are that on 24.09.2015, petitioner PCDF introduced a Voluntary Retirement Scheme (VRS). Amongst other conditions, the VRS scheme in clause-3(kha) provided that the employees adopting the same will be paid gratuity as per the gratuity scheme applicable in PCDF. On 30.09.2015 a clarification to the VRS scheme was issued, Clause-1 whereof clarified that as per the clause 28-Sa(3) of the gratuity scheme the maximum limit of gratuity amount payable shall be Rs. 3.5 Lakhs. All the respondents/employees applied under the aforesaid VRS scheme and in and around February, 2016 they all accepted their VRS amounts, including Rs. 3.5 Lakhs as their gratuity. In and around May, 2017, representations were made for payment of gratuity under the Gratuity Act, 1972 which was claimed to be Rs. 6.5 Lakhs. Since no action was taken on the representations made, therefore, in December, 2017 applications were filed before the respondent no. 2, Controlling Authority under the Gratuity Act, 1972. Objections were taken to the said application by the petitioner-PCDF. All the aforesaid applications stand allowed by the impugned orders and, thereafter notices were also issued for payment of the gratuity amount as per the Gratuity Act, 1972. While allowing the representations the Controlling Authority has also condoned the delay in filing the claim applications. The said orders and notices are under consideration before this Court in the present bunch of petitions.
3. The chronology of relevant law is that U.P. Co-operative Societies Act, 1965 (hereinafter referred to as 'Cooperative Societies Act') was enforced in the State of U.P. w.e.f. 26.01.1968 by way of notification dated 30.12.1967 (except Section 135 of the same). The Payment of Gratuity Act, 1972 (hereinafter referred to as 'Gratuity Act') was notified and came into force from 16.09.1972. Section 121 of the Co-operative Societies Act reads:-
"121. Power of Registrar to determine terms of employment of society. - (1) The Registrar may, from time to time, frame regulation to regulate the emoluments and other conditions of service including the disciplinary control of employees in a co-operative society or a class of co-operative societies and any society to which such terms are applicable, shall comply with those regulations and with any orders of the Registrar, issued to secure such compliance.
(2) The regulations framed under sub-section (1) shall be published in the Gazette and take effect from the date of such publication."
4. In exercise of power under Section 121 of the Cooperative Societies Act, Registrar framed the U.P. Cooperative Societies Employees Service Regulation, 1975 (hereinafter referred to as 'Regulations of 1975'). The Regulations of 1975 were notified by notification dated 31.12.1975. Regulation 121(2) states "they shall take effect from the date of their publication in the U.P. gazette", thus, they came into force from 06.01.1976, the date of their publication. Again in exercise of power under Section 121(1) of Co-operative Societies Act, U.P. Cooperative Dairy Federation Employees Service Regulations, 2010 were notified and published on 08.09.2010 (hereinafter referred to as 'Regulations of 2010'). Initially the said Regulations of 2010 were shown as issued by the Governor. An objection was raised by the opposite parties that the same were issued by the State Government which has power only under Section 122 of the Co-operative Societies Act, therefore, the same cannot be tr
