IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9045 of 2009 With SPECIAL CIVIL APPLICATION No. 9298 of 2009 To SPECIAL CIVIL APPLICATION No. 9381 of 2009 With SPECIAL CIVIL APPLICATION No. 1620 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= NARENDRA DHIRAJLAL DESAI & 84 - Petitioners Versus COLLECTOR & 1 - Respondents ================================================= Appearance :
MR. P.Y. DIVYESHVAR for Petitioners : 1 - 86 MS. V.S. PATHAK, LD. AGP for Respondent: 1, NOTICE SERVED BY DS for Respondents : 1 - 2.
MR. KUNAN NAIK for M/S TRIVEDI & GUPTA for Respondent : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 03/11/2012 COMMON ORAL JUDGMENT:
1. Heard learned advocate for the petitioners and learned AGP Ms. V.S. Pathak for respondent no.1 and Mr. Kunan Naik for respondent no.2. Rule. Learned AGP as well as learned advocate Mr. Naik waives service of notice of rule for respondent no.1 & 2 respectively. With the consent of learned advocates for the parties, this group of matters are taken up for final disposal.
2. This group of matters though forms part of the group which is listed, which contains specific grievance qua blatant non-compliance with provisions of law, where the gratuity amount under the certificates are wrongfully withheld by the employer concerned. The facts in these matters indicate that the petitioners-workmen in whose favour the valid recovery certificates have been issued by the controlling authority.
3. In this group of petitions the first respondent, i.e Collector, Surat, has filed affidavit through the Mamlatdar indicating that on account of company's representation qua it being sick the recovery proceedings are not undertaken. The company has relied upon the opinion of Justice Y.V. Chandrachud and, therefore, they do not propose to proceed with these matters. Time and again it was agreed by counsel for the company that the payment would be made as the gratuity amount cannot be delayed in any circumstances. However the stark reality is that the payment is not made despite the fact that certificates are arising in the year 2008 and today we are at the end of year 2012. Respondent no.2, i.e. the company has not filed any affidavit whatsoever resisting the prayers made in these petitions. At one point of time the advocate for the company requested for adjournment of the matters as he was hopeful that the mediation proceeding will yield result which would be beneficial to the workmen covered by this group of petitions also and hence their advocate late Shri Dipak Raval who was representing the workmen at that time did not object for adjournment. Thereafter till date the development of the instances indicate that somehow or the other the dues are not paid and it would not be out of place to mention here that the pleadings are canvassed in other matters to agitate that the mediation and agreement in mediation would not ipso facto be binding upon the company and that on account of the BIFR proceedings under SICA and the arbitration proceedings the property could not be sold and the company thereafter, off late agreed through their counsel that they would be paying statutory dues like gratuity as soon as possible. But till date their exists no genuine effort towards the direction and hence this Court is of the considered view that this group of petitions are required to be allowed.
4. Shri Naik, learned advocate for the company submitted that the respondent no.2 company cannot dispute its statutory liability to pay gratuity amount but the only question is that of computation and therefore he is requesting for passing appropriate order so that the gratuity amount becomes payable as per the submission of 2003.
5. This Court is unable to accept such a contention as in these petitions there appears to be no reply filed by the company taking up any such contention nor has such contention been raised against the certificates and therefore this contention, to say the least, is of no avail to the respondent company. In fact these petitions contain essential direction to the authorities and in light of catena of decisions cited, viz. In case of Ranjan Bhagwant Kedar And Another Vs. HMP Engineers Ltd. And others, reported in 2004-III-LLJ, Bom.; in case of Uptron India Ltd Vs. Presiding Officer, Labour Court, Dehradun And Another, reported in 2004-II-LLJ; and in case of New Phaltan Sugar Works Ltd, Satara and others, Vs. State of Maharasthra and others, reported in 2004-III-LLJ;, it can be said that the dues covered by the certificates cannot be permitted to be withheld in such a fashion. Therefore the Court is of the considered view that respondent no.1, i.e. Collector, Surat, is to take prompt action and realise the amount mentioned in the certificates at Annexure-A to be paid to the workmen in accordance with law. The reply coming forward from the respondent no.1 is to say the least wholly contrary to the provisions of law and the Court is of the considered view this could not have been the stand taken by the authority as nothing prevented the Collector to obtain appropriate advice or instruction from Legal Referencer in this behalf. The certificate executing authority is not the adjudicating authority at all and therefore looking to the provision of Gratuity Act the certificate once issued it is to be respected and executed by the Collector as if the certificate amount is land revenue and if the land revenue does not brook any interference in its recovery the same should not have been permitted to be delayed on spacious plea raised by the company, which in my view did not justify delay on the part of respondent no.1. Therefore as could be seen from the reply the notice is already issued to the company under section 152 of Bombay Land Revenue Code from 8/4/2008 to 16/4/2008.
6. The Collector, Surat, is therefore hereby directed to undertake the proceedings of recovery. In view of this, these petitions are disposed of. The entire proceedings of recovery shall be over in accordance with law and the amount be paid to the petitioners within three months from the date of receipt of writ of this order.
7. The fact remains to be noted that the respondent no.1 has not indicated anywhere that there was any justification for any proceeding against respondent no.2 company. The respondent no.2 company has not pointed out anything by filing any reply in this proceedings to even remotely suggest that there was any justification for not putting the property under sale or realizing the amount to be paid to 86 workmen who have valid certificates in their favour. The entire attempt appears to be merely stalling of the proceedings and therefore when it has come out on record by way of affidavit that the notice under section 152 have already been issued even to respondent no.1, he could not have held himself helpless without any valid reason as the provision of law is very clear. Therefore, the Respondent No.1 Collector, Surat, is hereby directed to take appropriate & immediate steps under the provisions of Land Revenue Code from section 150 and other provisions, including section 155 and see to it that the amount is paid to the petitioners.
8. The entire proceedings should be over within a reasonable period and the periodical report be placed before this Court by way of affidavit to be filed by the Collector, Surat, thorough learned AGP on record. Liberty is reserved to the petitioners / workmen to approach this Court in case if the order is not complied with. The entire exercise be over within a period of 90 days from the date of receipt of writ of this order.
9. This group of petitions are disposed of as allowed. Rule made absolute in all the petitions. However, there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn