THE MANAGEMENT S.NO.1558, THE GOVERNMENT COLLEGE OF ENGINEERING CO-OPERATIVE STORES LTD. Vs. S. GNANASEKARAN

JUDGEMENT

(1.) The Management, the Government College of Engineering Cooperative Stores Ltd. has filed the writ petition questioning the correctness of the Award passed in C.P. No.11 of 2012 dated 28.04.2016 wherein the Labour Court, Salem/the second respondent herein, while entertaining the petition filed by the first respondent against the petitioner under Sec. 33(C)(2) of the Industrial Disputes Act, claiming retiral benefits, allowed the same directing the petitioner to pay a sum of Rs. 4,87,543.00 within a period of three months.

(2.) Assailing the impugned award passed by the second respondent, learned counsel appearing for the petitioner would submit that the claim made by the first respondent for a sum of Rs. 4,52,047.00 in respect of payment of gratuity, is not maintainable as at no point of time, the petitioner Society employed more than two employees. He would further submit that the Labour Court has wrongly come to the conclusion that the first respondent is entitled to get the payment of gratuity on the basis of settlement under the provisions of I.D. Act, but there is no evidence to show that there was settlement either under Sec. 12(3) or under Sec. 18(1) of the I.D. Act. When the payment of Gratuity Act itself is not applicable to the facts and circumstances of the case, the Labour Court ought to have rejected the Computation Petition as unsustainable, but the same has not been done. He would further submit that when the petitioner society at no point of time, employed more than two employees, the Computation Petition cannot be filed against the petitioner, since section 1(3)(b) of the Payment of Gratuity Act 1972 shows that the applicability of the gratuity provision can be invoked only in a case where ten or more persons are employed in an establishment. Again referring to the additional affidavit, learned counsel appearing for the petitioner would submit that the first respondent was paid with Rs. 4,200.00, Rs. 4,887.00, Rs. 1,120.00, Rs. 360.00 and Rs. 100.00 respectively towards grade pay, dearness allowance, HRA, CCA and Medical allowance. According to the learned counsel for the petitioner, as per the scale prescribed by the special bye laws of the society, the first respondent is eligible to receive Rs. 63,531.00 as gratuity, but not Rs. 4,52,047.00 as ordered by the second respondent. Learned counsel appearing for the petitioner would further submit that this Court, while granting an order of interim stay, directed the petitioner society to pay 50% of the amount determined by the second respondent and therefore, the petitioner has paid a sum of Rs. 2,43,772.00 vide cheque No.025150 dated 15.03.2018 to the first respondent. According to the learned counsel for the petitioner, since the first respondent has received the excess amount than what he was eligible, the same may be directed to be repaid.

(3.) Reiterating the averments made in the counter affidavit, learned counsel appearing for the first respondent would submit that the first respondent having served in the petitioner society, retired from service on attaining superannuation in Dec. 2011. However, the first respondent claimed Rs. 4,52,047.00, Rs. 76,548.00, Rs. 1,28,956.00 towards Gratuity, Provident Fund and Earned leave for 170 days as per the revised special bye law framed. As the petitioner society by its letter dated 17.05.2012 offered to settle only a sum of Rs. 1,17,849.00 as retiral dues, the first respondent filed the Computation Petition in C.P. No.11 of 2012 claiming the above benefits. However, the petitioner society, instead of complying with the same, has filed W.P. No.31376 of 2014 before this Court. By order dated 27.11.2015 this Court permitted the first respondent to withdraw the entire amount of Rs. 2 lakhs deposited to the credit of the above C.P. According to the learned counsel for the first respondent, though the petitioner pleaded that the Gratuity Act was not applicable to the petitioner society, the Labour Court, Salem by order dated 28.04.2016 held that the provisions of the Payment of Gratuity Act are very much applicable to the petitioner society. Therefore, he prays for confirming the impugned award passed by the Labour Court.