- (1.) In this writ application the petitioner a retired employee of Dunlop India Limited, a company duly incorporated under the provisions of the Companies Act, 1956, he prayed the following reliefs : (a) Writ and/or writs in the nature of Mandamus directing the respondent No. 1 to act in accordance with law and to consider the representation of your petitioner and/or to initiate the certificate and/or recovery proceedings forthwith as against the said company and to realize the said sum of Rs. 3,50,000/- along with simple interest 10% per annum from 1st June, 1998 till the date of payment being the gratuity of your petitioner which has already been adjudicated by the Controlling Authority as stated hereinabove; (b) Writ in the nature of Mandamus directing and/or commanding the respondent No. 1 to send the said sum of Rs. 3,50,000/- along with simple interest @ 10% per annum from 1st June, 1998 till the date of payment being the gratuity of your petitioner to the Controlling Authority after realizing the same from the said company so that the same can be paid to the petitioner forthwith; (c) Writ in the nature of Mandamus be issued commanding the Controlling Authority to produce and/or furnish the original requisition and/or order and/or records and/or documents before the respondent No. 1 so that the respondent No. 1 can initiate the recovery proceedings against the company forthwith; (d) Writ in the nature of prohibition commanding the respondent No. 1 from not delaying the matter in initiating the certificate and/or recovery proceedings as against the said company for realizing the said sum of Rs. 3,50,000/- along with simple interest @ 10% per annum from 1st June, 1998 till the date of payment being the gratuity of your petitioner as has already been adjudicated by the Controlling Authority as stated hereinbefore; (e) Writ in the nature of Certiorari commanding the respondent No. 1 and/or the Controlling Authority to produce and/or transmit all the relevant records, papers, documents pertinent to the instant case before this Hon'ble Court so that conscionable justice can be made by directing the respondent No. 1 to initiate recovery and/or certificate proceedings as against the company for realizing the said sum of Rs. 3,50,000/- along with simple interest @ 10% per annum from 1st June, 1998 till the date of payment being the gratuity of your petitioner; (f) An ad-interim order of injunction restraining the BIFR Authority not to take any further action pursuant to the publication made in the newspaper on 22nd December, 2003 being Annexure "P11" to this petition; (g) Rule NISI in terms of the prayers above; (h) Rule be made absolute if no cause or inadequate cause is shown; (i) the respondent No. 1 be directed forthwith to initiate recovery and/or certificate proceedings as against the said company and to realize the said sum of Rs. 3,50,000/- along with simple interest @ 10% per annum from 1st June, 1998 till the date of payment being the gratuity of the petitioner and to send the same to the Controlling Authority; (j) The Controlling Authority be directed to produce/furnish the original requisition and/or order and/or necessary records and papers before the respondent No. 1 forthwith; (k) Ad-interim order in terms of prayers above; (I) Costs of and incidental to this application be paid by the respondent No. 1; (m) such further or other orders be made and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.
(2.) This application has been opposed by filing affidavit by the respondent No. 3, contending, inter alia, that since the respondent company being a sick industry awaiting rehabilitation programme by approval of the scheme under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 hereinafter referred to as SICA, 1985, under Section 22 of the said Act, no recovery proceeding could be initiated.
(3.) The short question involved in this case as to whether due to Section 22 of SICA, 1985, the recovery proceeding for realization of Gratuity amount under Public Demands Recovery Act would be kept pending. Before an answer to the question, the basic jurisprudential concept of the payments of gratuity and the constitutional mandates to that effect are required to be looked into. Gratuity is payable now under a Statutory Provision namely Payments of Gratuity Act, 1972 hereinafter referred to as Gratuity Act for brevity. Under Section 14 of the said Act due to incorporation of non-obstante clause, gratuity amount cannot be withheld under any circumstances. Section 14 reads thus : "14. Act to override other enactments etc.-The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.";