List revised. No one appears for the respondent no.2 - the employee. Heard Shri P.P.Chaudhary, learned standing counsel for the petitioner-State.
This writ petition is directed against order dated 3.8.1998 passed by Presiding Officer, Labour Court, U.P., Agra in Misc. Case No.61 of 1997 Braham Singh Mallik vs. Executive Engineer and others. That was a case under Section 33-C(2) of Industrial Disputes Act. Braham Singh Mallik-respondent no.2 was an employee of Irrigation Department, Uttar Pradesh. The case was initiated on his application through which he claimed about Rs.2 lacs. The main item was of gratuity of about Rs.1,65,000/- and about Rs.20,000/- interest thereupon uptil June 1997. Respondent no.2 retired on 31.5.1996. Petitioner took up the defence that an amount of Rs.72,519/- had been directed to be recovered from the petitioner when he was in service as that was the loss caused to the department due to the negligence and active participation of the petitioner in manipulation of records.
On page-3 (para-3) of the certified copy of the impugned order the entire gratuity payable to the petitioner was stated to be Rs.97,515/-. However, on page-8 (para-8) it was mentioned to be Rs.1,59,225/-. Admittedly an amount of Rs.24,996/- towards gratuity had been paid to the respondent no.2 after filing of the case/application. The Labour Court held that as inquiry against the petitioner had not been completed hence the amount of Rs.72,000/- and odd could not be deducted from his gratuity. Accordingly, through the impugned order it was directed that petitioner should pay Rs.1,34,229/- as unpaid gratuity to respondent no.2 alongwith 18% interest. An amount of Rs.10,310/- was also directed to be paid as unpaid travelling allowance. 18% interest was directed to be paid thereupon also. In that regard the contention of the department was that the bills for the same had been presented beyond the time fixed hence the said allowance had not been paid. Petitioner also contended before the Labour Court that respondent no.2 was not a workman.
Initially arguments were heard and judgment was reserved in this writ petition on 21.10.2011 however, the petition was directed to be listed for further hearing again as I wanted to hear learned standing counsel further on few points. The first was the exact amount of gratuity. Whether it was Rs.97,000/- and odd or Rs.1,59,000/- and odd and the second was regarding the stage of inquiry. Shri P.P.Chaudhary, learned standing counsel sought instructions from the department. Regarding discrepancy in the total gratuity due Shri P.P.Chaudhary, learned standing counsel states that according to his instructions the correct figure is Rs.1,59,225/- as mentioned on page - 8 of the impugned order and the figure of Rs.97,515/- as mentioned on page -3 of the impugned order was only a tentative figure which was earlier given by the department. The figure of Rs.1,59,000/- was given afterwards after full verification. Shri Chaudhary has also placed on record confidential D.O. Dated 9.7.1976. The said communication is a report of Executive Engineer (A), Investigation & Planning Circle, Aligarh to the Chief Engineer (Ganga), Irrigation Department, U.P., Lucknow. In the said report it is mentioned that explanation was called from respondent no.2 and Shri B.M.Agarwal, Assistant Engineer for tempering of measurements of earth work in the level book. It is further mentioned in the said communication that Shri Malik (respondent no.2) through letter dated 20.2.1976 replied that he was mentally shocked due to untimely and sudden death of his son hence he could not furnish correct reply at that time. Thereafter Shri Malik was directed to inspect the record and submit the reply by 15.3.1976. However, Shri Malik did not receive the said letter and also refused to receive further communications. Ultimately after detailed reasons it was held that respondent no.2 was responsible for the manipulation causing loss of Rs.72,519/-. Thereafter, on 25.5.1996 a letter was written to the effect that Shri Malik (respondent no.2) was retiring on 31.5.1996 hence the amount of Rs.72,519/- should be recovered from him.
The argument of learned counsel for the petitioner is that the after inquiry order had been passed holding respondent no.2 responsible for loss of Rs.72,000/- and odd to the department by manipulation in the record hence the said amount was liable to be deducted from his retiral benefits including gratuity. On 21.10.2011 when arguments were heard at the first stage learned counsel for the respondent no.2 had argued that no final decision had been taken after hearing respondent no.2 regarding loss of Rs.72,000/- and odd to the department due to his manipulation. Today, learned counsel for respondent no.2 has not appeared. Shri P.P.Chaudhary, learned standing counsel appearing for the appellant has argued that correctness of the finding that due to manipulation in the record made by respondent no.2, department suffered loss of Rs.72,000/- and odd could not be seen in the proceedings under section 33-C(2) of I.D. Act. I fully agree with this argument. But in any case after deducting Rs.72,519/- and Rs.24,996/- (total Rs.97,515/-) from the total due amount of Rs.1,59,225/- amount of Rs.61,710/- was admittedly payable to respondent no.2 as gratuity which was not paid.
Regarding rate of interest of 18% learned standing counsel for the petitioner has argued that it was too excessive and rate of interest should not have been more than 10%. Taking into consideration all the facts and circumstances of the case I am of the opinion that 15% per year simple interest on unpaid gratuity of Rs.61,710/- would be the proper and just order.
As far as payment of Rs.10,000/- and odd as unpaid travelling allowance is concerned the only defence was that claim for the same was made late. In my opinion the said amount should be directed to be paid to respondent no.2 without any interest.
Learned standing counsel for the petitioner has very vehemently argued that the entire writ petition should be allowed and the entire impugned order should be set aside on the ground that the Supreme Court in State of Punjab vs. Labour Court, Jullundur A.I.R. 1979 S.C. 1981 has held that provisions of Section 33-C(2) I.D. Act cannot be invoked for payment of gratuity. However, in the said judgment itself it is mentioned in the last paragraph (para-11) that on the suggestion of the court learned Solicitor-General agreed that under the special circumstances it was not fair that the employees should be permitted to approach proper forum for payment of gratuity after such a long time.
Even otherwise writ jurisdiction is discretionary and writ court can refuse to set aside even an illegal order if setting aside the said order will give rise to an extremely unjust situation or will result in revival of another illegal order. In the instant case admittedly Rs.61,000/- and odd was due to the respondent no.2 as unpaid gratuity. Accordingly, I am not inclined to allow the writ petition on the ground that relief had been sought by respondent no.2 in the wrong forum.
Accordingly, writ petition is allowed in part. Impugned order is modified and it is directed that petitioner is liable to pay to respondent no.2 an amount of Rs.61,710/- as unpaid gratuity alongwith 15% interest and further to pay Rs.10,310/- as travelling allowance to respondent no.2 without any interest.
Order Date :- 4.7.2012 RS