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WP No. 32210 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2022 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 32210 OF 2017 (L PG)
BETWEEN: SMT. CHANDRAMATHI W/O H.V.RAMACHANDRA AGED ABOUT 72 YEARS RESIDING AT NO.98, 3RD MAIN, 3RD CROSS, VINAYAKA LAYOUT, ABBIGERE, BANGALORE-560090 …PETITIONER (BY SRI. ANANDA RAMA, ADVOCATE FOR SRI.PRASHANTH KUMAR.D., ADVOCATE)
AND: 1. THE DEPUTY GENERAL MANAGER (HR/ADMN) BHARAT SANCHAR NIGAM LIMITED, OFFICE OF PRINCIPAL GENERAL MANAGER, TELEPHONE HOUSE, RAJBHAVAN ROAD, BANGALORE-560001.
THE DEPUTY GENERAL MANAGER (HR/FINANCE) BHARAT SANCHAR NIGAM LIMITED, OFFICE OF PRINCIPAL GENERAL MANAGER, TELEPHONE HOUSE, RAJBHAVAN ROAD, BANGALORE-560001
Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA
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WP No. 32210 of 2017
THE CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT & ASSISTANT LABOUR COMMISSIONER (CENTRAL) "SHRAM SADAN", III CROSS, III MAIN, II PHASE, TUMKUR ROAD, YESHWANTHPUR, BANGALORE-560022
THE APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT & DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL) "SHRAM SADAN", III CROSS, III MAIN, II PHASE, TUMKUR ROAD, YESHWANTHPUR, BANGALORE-560022 …RESPONDENTS
(BY SRI. Y. HARIPRASAD ADVOCATE FOR R1 & R2., SMT. K.S. ANASUYADEVI, C.G.C., FOR R3 AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN APPLICATION NO.48(87) 2014-B3 ON THE FILE OF THE CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 CUM-ASSISTANT LABOUR COMMISSIONER (CENTRAL) BANGALORE AND APPEAL NO.36(14) 2016-B1 AND APPEAL NO.36(15) 2016-B1 ON THE FILE OF THE APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 AND DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL) BANGALORE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner is before this Court seeking for the following reliefs: " (a) Call for records in Application no.48(87) 2014-B3 on the file of the Controlling Authority under Payment of Gratuity Act, 1972-cum-Assistant Labour Commissioner (Central) Bangalore and in Appeal No.36(14) 2016-B1 on the file of the Appellate Authority under payment of Gratuity Act, 1972 and Deputy Chief Labour Commissioner (Central) Bangalore. (b) Issue a writ of certiorari or any other writ or order quashing the order dated 19.01.2016 (Annexure-K) passed by the Controlling Authority under the Payment of Gratuity Act 1972 and Assistant Labour Commissioner (Central) Bangalore in Application No.48(87) 2014-B3 and order dated 30.11.2016 (Annexure-Q) passed in Appeal No.36(14)/2016-B1 passed by Appellate Authority under the payment of Gratuity Act, 1972 and Deputy Chief Labour Commissioner (Central), Bangalore and consequently, allow the claim of the petitioner in its entirety."
The petitioner joined the service of Bharat Sanchar Nigam Limited (Hereinafter referred to as 'BSNL' for short) as Telephone Operator on 29.11.1974 and worked in various exchanges/offices in Bangalore. She was promoted as Senior Section Supervisor in the year 1993. The petitioner was permanently
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absorbed in BSNL with effect from 01.10.2000, in pursuance to the order dated 01.02.2002 passed by the Director, Department of Tele Communications, Government of India. The petitioner retired from service on attaining the age of superannuation on 31.08.2013 after rendering service of 38 years, 9 months and 2 days. The gratuity amount for a sum of `6,86,901/- (Rupees Six lakh eighty six thousand nine hundred one only) after deducting a sum of `1,84,778/- (Rupees One lakh eighty four thousand seven hundred seventy eight only) towards recoveries on account of over-payment in pay and allowances.
It is aggrieved by the same that the petitioner had approached the Assistant Labour Commissioner (Central) - Controlling Authority, contending that the total amount which was due is `8,71,679/- (Rupees Eight lakh seventy one thousand six hundred seventy
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nine only) and no recovery of the sum of `1,84,778/- (Rupees One lakh eighty four thousand seven hundred seventy eight only) could be made, in terms of Rules 71 to 73 of Central Civil Service (Leave) Rules, 1972 (Pension Rules), (Hereinafter referred to as 'CCS Pension Rules' for short).
The Controlling Authority dismissed the claim of the petitioner on the ground that on the absorption of the petitioner with BSNL it is the CCS Pension Rules which would be applicable and in terms of Rule 37A of the said Rules, there is no gratuity which is liable to be paid as such the petitioner nor his family would be entitled to pension and not gratuity. But however, awarded simple interest at the rate of 10% on the amount of `6,86,901/- (Rupees Six lakh eighty six thousand nine hundred one only) which was paid belatedly.
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The petitioner and respondents filed an appeal before the Deputy Chief Labour Commissioner (Central). The Deputy Chief Labour Commissioner (Central), vide its order dated 30.11.2016, dismissed the claim of the petitioner in so far as deduction of `1,84,778/- (Rupees One lakh eight four thousand seven hundred seventy eight only) is concerned, on the ground that in terms of CCA Pension Rules, there is no gratuity which is required to be paid to the petitioner and hence, there is no question of interest being paid. It is in that background, the petitioner is before this Court challenging the aforesaid orders.
Sri.Ananda Rama, learned counsel appearing for petitioner would submit that the petitioner an employee as Telephone Operator and was subsequently absorbed with the BSNL-respondent. The respondents having made a payment of gratuity in terms of Annexure-A `6,86,901/- (Rupees Six lakh
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eighty six thousand nine hundred one only) the question of the respondents subsequently contending that there is no gratuity which is liable to be paid is completely mis-conceived. There is no recovery which can be made in terms of Rules 71 to 73 of CCA Pension Rules inasmuch as for the said recovery adjustments and dues from Rule 71. The said dues have been ascertained and assessed by the office which has not been done so in the present case. The Government dues and the assessment can only be in respect of dues pertaining to Government accommodation including arrears of license fee or damages, for balance house building, conveyance or any other advance, over payment and allowances and salary arrears, Income Tax deducted at source. In the present case what has been deducted is towards the gratuity and not any of the aforesaid head of accounts and as such Rule 71 of CCA Pension Rules not being applicable, no deduction could have
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WP No. 32210 of 2017
been made by the respondents-BSNL. In so far as Rule 72 and 73 of CCA Pension Rules is concerned, he submits that the said Rule is not applicable. Learned counsel relies upon the decision of the Hon'ble Apex Court in State of Punjab and other vs Rafiq Masih (white washer) etc., reported in 2015 (145) FLR 234, to contend that no recovery could be made even in the event of wrong payment having been made on the basis of wrong calculation by the employer. He relies on paragraph 18 thereof, which is reproduced herewith for easy reference. 18. It is not possible to postulate all situations of hardship which would govern the employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may based on the decisions referred to herein above, we may, as a ready reference, summarize the following few situation, wherein recoveries by the employers would be impermissible in law :
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
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WP No. 32210 of 2017
(iii) Recovery from the employees, when the excess payment has been made for the period of excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover".
It is on that basis that the learned counsel contends that firstly no deduction could be made and secondly there being delay in payment of money, the petitioner is entitled for interest of such delay.
Per contra, Sri.Y.Hariprasad, learned counsel appearing for respondents-BSNL would submit that upon the petitioner being absorbed with BSNL in terms of Rule 37A of CCS Pension Rules, the petitioner is only entitled for pension and not gratuity
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and as such a deduction which has been made, is proper and correct. He submits that the petitioner being governed by the CCS Pension Rules, the Rule 71 to 73 would also be applicable to the petitioner and as such the respondents having the right to deduct the amount due without the consent of the petitioner, the respondent has rightly deducted the amounts and in that background he submits that the above petition requires to be dismissed.
Heard Sri.Ananda Rama, learned counsel for petitioner and Sri.Y.Hariprasad, learned counsel for respondent Nos.1 and 2 and Smt.K.S.Anasuyadevi, learned CGC for respondent Nos.3 and 4 and perused the papers.
Learned counsel further submits that there was excess payment made in the year 1993 on account of the promotion having granted to the petitioner. However, in the year 2000, the cadre was
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re-structured and as such there is an excess payment of `1,84,778/- (One lakh eighty four thousand seven hundred seventy eight only) which has been made which is being recovered in the gratuity as such he submits that no fault can be found with the orders passed.
The short question that would arise for consideration in the above matter is whether after having made payment of gratuity amount in terms of Annexure-A to the petitioner, the respondents could have subsequently contended that the petitioner is not entitled for payment of gratuity?
As regards the contention of Sri.Y.Hari Prasad, learned counsel for respondent Nos.1 and 2, that no gratuity is required to be paid, is not sustainable for simple reason that in terms of Annexure-A, gratuity has been paid. What is questioned here is whether the deductions made from the gratuity can be made
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or not. Hence, the said submission being irrelevant, the same is rejected.
As regards the contention of Sri.Y.Hari Prasad, learned counsel for respondent Nos.1 and 2, that a sum of `1,84,778/- (One lakh eighty four thousand seven hundred seventy eight only) has been deducted on account of excess payment made to the petitioner on account of restructuring of the cadre, neither the Controlling Authority nor the Appellate Authority have referred to it. Be that as it may the same having been raised in the objection statement filed by the employer before the BSNL, this Court will have to advert to the same.
The contention of the counsel for respondent- Employer is that excess payment was made in the year 1999 and the same is now sought to be deducted from the year 2013 i.e., in the year of which the petitioner retired on 31.08.2013.
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WP No. 32210 of 2017
A perusal of the decision of the Hon'ble Apex Court in State of Punjab and other vs Rafiq Masih, more particularly in clause 18 (ii) which has been extracted hereinabove makes it clear that no recoveries from the retired employee and employees who are due to retirement within one year of the order, can recovery be made i.e., to say that no recovery can be made in so far as the petitioner is concerned who retired on 31.08.2013 vide Annexure-A, which is passed on 11.12.2013, post retirement of the petitioner. This aspect has not been taken into consideration by either Controlling Authority or the Appellate Authority. As such, I am of the considered opinion that the claim made by the petitioner before the Controlling Authority ought to have been allowed, since, there is no power vested with employer to deduct any amount as over-payment or otherwise in the year of retirement of the petitioner or thereafter.
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Consequently, there being delay in payment of dues in the amount of gratuity by respondent, it is but required for the respondent to make payment of interest which the petitioner would be so entitled to.
In view of the above, I pass the following: -:ORDER:- a. The writ petition is allowed.
b. The order dated 19.01.2016 passed by the Controlling Authority vide Annexure-K is hereby quashed in so far as rejection of the claim of the petitioner.
c. The order of the Deputy Chief Labour Commissioner (Central) - Appellate Authority dated 30.11.2016 vide Annexure- Q is hereby quashed in its entirety.
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d. Respondent Nos.1 and 2 are directed to make payment of deducted amount of `1,84,778/- (Rupees One lakh eighty four thousand seven hundred seventy eight only) along with simple interest at the rate of 10% per annum calculated from 01.09.2013 i.e., date of retirement of the petitioner, within a period of eight weeks from the date of the receipt of the copy of this order, failing which the respondents would be liable to make payment at the rate of 15% per annum until payment.
Sd/- JUDGE
GVP