SEETHA VENKATESH MILLS LIMITED REP BY ITS MANAGING DIRECTOR, D A A ANANTHAPADMANABHA CHETTIAR, CHENNAI Vs. N LAKSHMIAMMAL WIFE OF NARAYANASWAMY, CHINNAPALAYAM, POLLACHI (TK) AND ASSISTANT COMMISSIONER OF LABOUR II, OFFICE OF ASSISTANT COMMISSIONER OF LABOUR, CHENNAI

JUDGEMENT

(1.) This writ petition has been filed praying for a Writ of Certiorari to call for the records in P.G.A.No.5 of 96 and to quash the order dated 1.11.1996 passed by the 2nd respondent .

(2.) The short facts of the case of the petitioner are : The first respondent was an employee of the petitioner company and she retired from the service on 30.6.1994. She and 21 others preferred Claim Petitions individually before the 2nd respondent for Payment of Gratuity Amount. All the 21 applicants preferred the claim petition belatedly and there was delay ranging from 69 days to 1245 days. The first respondent filed the claim petition with a delay of 336 days and she moved an application to condone the delay. The 2nd respondent allowed the petition to condone the delay vide order dated 22.3.1996 and the claim petition filed by the first respondent was numbered as P.G.No.5 of 1996 and the said claim petition was filed by the first respondent claiming a sum of Rs.55,874/-. She had claimed that she has worked for 36 years and the last drawn pay as Rs.2690.23. During the pendency of the claim petitions the first respondent and others suggested for out of court settlement and the matter was settled outside the office of the second respondent and the first respondent received a sum of Rs.47, 407.50 from the petitioner company as full and final settlement of all her claims and issued a stamped receipt dated 8.7.1996. The first respondent and the petitioner company reported settlement to the second respondent and a common order was passed on 2.8.1996 by the 2nd respondent dismissing 10 claim petitions as the matters were settled out of court. That being so, the first respondent forwarded a letter-dated 1.8.96 on 31.8.96 to the petitioner company stating that she received the amount without prejudice to her claim in the claim petition. The 2nd respondent dismissed the claim petition on 2.8.96 and the first respondent was well aware of the same, but intentionally forwarded the letter-dated 1.8.1996 to the petitioner company. The first respondent filed a reply statement dated 25.8.1996, wherein the first respondent acknowledged the receipt of the settlement amount. The first respondent claimed a difference Gratuity amount of Rs.8466.50 and also claimed interest at the rate of 15% per annum. The petitioner herein received an order copy from the second respondent passed in P.G.No.5 of 1996 dated 1.11.1996 directing the petitioner company to pay a sum of Rs.8, 466.50 being difference Gratuity amount payable to the first respondent. The above order was passed by the 2nd respondent on 1.11.1996 after a lapse of 3 months from the date of dismissal of the claim petition on 2.8.1996. The 2nd respondent has invoked Sec.14 of the Payment of Gratuity Act 1972 and passed the abovesaid order directing the petitioner company to pay the difference Gratuity amount. The first respondent had again preferred an appeal in P.G.Appeal No.8 of 1997 before the Appellate Authority against the order in P.G.No.5 of 1996 dated 1.11.1996 in respect of the rejecting the claim for interest on the Gratuity Amount. The said appeal is pending for orders on the file of the Deputy Commissioner of Labour, Chennai.600 006. The petitioner company has become sick in terms of Sec.3(1)(o) of the Sick Industrial Company (Special Provisions) Act, 1985 and referred to the Board for Industrial and Financial Reconstruction in Case No.130 of 1997 and the same is pending consideration before the Board. Sec.22 of the Sick Industrial Companies (Special Provisions) Act, 1985 envisages statutory suspension of proceedings in respect of the Companies for which Inquiry under Sec.16 is pending or any Scheme referred under Sec.17 is under preparation etc., The impugned order passed by the 2nd respondent is without jurisdiction and the same has been passed without application of mind. Hence this writ petition.

(3.) According to the learned counsel appearing for the petitioner, the impugned order dated 1.11.1996 has been passed in the claim petition which was dismissed by the same authority as early as on 2.8.1996. There is no appeal or petition to review the order-dated 2.8.96 moved before the second respondent. The order of the 2nd respondent is against law and principles of natural justice. The second respondent failed to take note the out of court settlement and the dismissal of the petition on 2.8.1996. Further the 2nd respondent erred in invoking Sec.14 of the Payment of Gratuity Act 1972 which is not applicable for the case, which was settled out of court by the claimant. The order of the 2nd respondent has been passed ignoring the procedural law. Since the petitioner company has become sick and referred to BIFR it is eligible for the statutory protection envisaged under Sec.22 of the Sick Industrial Companies (Special Provisions) Act, 1985. The first respondent has totally suppressed the material facts before the second respondent and the claim of the first respondent is not legally correct. Since the claim of the first respondent is not a bonafide one, the same ought to have been rejected. That being so, the 2nd respondent has issued a letter bearing No. A 3/11819/97 dated 19.12.1997 calling upon the petitioner company to make the payment to 10 claimants and also cautioned the petitioner company about the invocation of the provisions of the Revenue Recovery Act, in case of default.