The petitioner is an employee of the respondent Cooperative Society. The petitioner had reached the age of superannuation. When his terminal benefits were not paid, the petitioner moved this Court by way of Writ Proceedings in W.P.No.28441/2007. This Court disposed of the said Writ Petition by a final order dated 28.8.2007 and directed the respondents to dispose of his representation dated 5.5.2007 in accordance with law.
2. Pursuant to the direction, the respondents have paid the petitioner's Provident Fund amount for a sum of Rs.1,97,096/- by way of four cheques and the petitioner has accepted the same. The petitioner if he had retired in the normal course, he would have been eligible for gratuity and provident fund including the Society's Contribution besides encashment of Earned Leave and Security deposit. Altogether the amount works out to Rs.6,84,715/-. Since the petitioner did not get the entire amount, he has come forward with the second Writ Petition.
3. On notice from this Court, on behalf of the respondents 2 and 3, counter affidavits have been filed resisting the claim of the petitioner. The 2nd respondent in their counter affidavit dated 25.8.2009 has stated that the Writ Petition is not maintainable in the light of Marappan's case reported in 2006(4) CTC 689. In any event, the question of payment of gratuity and the employer's contribution towards Provident Fund will arise only after the disposal of the criminal case pending in C.C.No.16 of 2004 before the Chief Judicial Magistrate's Court at Erode. It is also stated that Section 4 of the Payment of Gratuity Act enables the employer to withhold gratuity amount, in case, any loss is caused by an employee. The petitioner had got himself involved in a trap case by the Vigilance and Anti Corruption Department. Therefore, the amount cannot be released at this stage.
4. Likewise, the 3rd respondent in their counter affidavit dated 18.2.2009 once again raised the question of maintainability of the writ petition and also relied upon Section 4 of the Payment of Gratuity Act, 1981 which enables them to withhold gratuity.
5. The Writ Petition in the normal course would have been dismissed in the light of Marappan's case. But in view of the submission made by the learned counsel appearing for the petitioner that there was an earlier direction by this Court to consider the representation in accordance with law and as the same having not been done, he has come forward with the present writ petition and the same should not be dismissed on the ground of maintainability. Reliance was also placed upon the decision reported in Dua vs. State of Haryana, 2008(3) KLT 58 (SC).
6. With reference to the first objection, it must be stated that the affidavit does not disclose any exception from Marappan's case so as to maintain the present writ petition. The earlier order came to be passed by this Court as a direction was not based upon any legal grounds. In any event, since the respondents have taken their defence that the amount towards provident fund and gratuity have been withheld in view of the pendency of the criminal case, this Court is not inclined to go into the merit of such claim.
7. The reliance placed upon on Dua's case (cited supra) is misconceived. That case arose under
Section 309 IPC. In that case, the Supreme Court has held that once a person had retired from service, he is eligible for all the terminal benefits including interest. Even if interest is not ordered, the Court can grant interest on the basis of Articles 14, 19 and 21 of the Constitution. It must be stated that it is not as if the petitioner has no remedy in claiming the gratuity. The Payment of Gratuity Act, 1972 itself provides grant of gratuity to any aggrieved employee. In case, an employee is not paid full gratuity or the gratuity has been withheld, the Payment of Gratuity Act provides for a claim to the Controlling Authority followed by an Appellate Authority, who will determine the gratuity payable. The Payment of Gratuity Act not only creates a right to get gratuity but also provides two tier forums.
8. The Supreme Court vide its judgment in State of Punjab Vs. Labour Court, Jallandar 55 FRJ 468 has held that the relief has to be made claimed from the forums provided under the Act and not in any other forum. It must also be stated that Section 4 of the Gratuity Act provide for withholding of gratuity in case of any loss to the employer. To what extent such a withholding is permissible can also be gone into by the Controlling Authority by virtue of the amendment made to
Section 7(4)(b) vide Central Act 25 of 1984 which was brought into with effect from 1.7.1984.
9. In Jaswant Singh Gill Vs. Bharat Coking Coat Limited reported in (2007) 1 SCC 663 held that the Payment of Gratuity Act provides for deprivation of gratuity payable under certain circumstances. The following passage found in para 13 may be extracted below:
"13. The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non obstante clause vis-a-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Clause (a) of sub-section (6) of section 4 of the Act speaks of termination of service of an employee for any act, wilful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to respondent I was more than the amount of gratuity payable to the appellant. Clause (b) of sub-section (6) of Section 4 of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an offence involving moral turpitude. Conditions laid down therein are also not satisfied.
(Emphasis added)"
10. The Supreme Court in U.P. tate Sugar Corporation Limited v. Kamal Swaroop Tondon reported in (2008) 2 SCC 41 also held that the proceedings can be combined even after request if there was loss caused to the employer so as to deduct it from the terminal benefits. The following passages found in para Nos.27 and 28 may be usefully extracted below:
"27. In UCO Bank v. Sanwar Mal, the Court held that two concepts: (i) resignation; and (ii) retirement were different and employed for different purposes and in different contexts. Resignation brings about complete cessation of master and servant relationship, but retirement does not do so. In case of retirement, master and servant relationship continues for grant of retiral benefits.
28. If it is so, the appellant Corporation, in our opinion, is right in submitting that the proceedings could have been continued after the retirement of the respondent employee as far as the financial loss caused to the Corporation because of negligence on the part of employee and the benefit claimed by the respondent workman on his terminal benefits are concerned.
(Emphasis added)"
11. There is no explanation as to why the petitioner had not availed the same, in case of the non-payment of Gratuity. It is for the petitioner to work out his remedy in terms of the statutory enactment made by the Parliament. Without exhausting the said remedy, the petitioner has been filing Writ Petition after Writ Petition.
12. The Writ Petition is therefore dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
tsi To
1. The Deputy Registrar of Cooperative Societies (Housing), Salem Region, East Garden Street, Fairlands, Salem-16.
2. The Special Officer, Kavundapadi Cooperative Housing Building Society Limited, 94-B Siruvalur Road, Kavundapadi-638 455, Erode District.
3. The Tamil Nadu Cooperative Housing Federation Limited rep. by its Managing Director, 48, Ritherdone Road, Vepery, Chennai 7