- (1.) The writ petition has been filed against the Government Order No. 1084 I.R. dated 13.6.2001 whereby in purported exercise of the power under sub section 1 of Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service)"and Miscellaneous Provisions Act, 1955, a certificate for recovery of the money was issued to the Collector, Calcutta, from the petitioner/company viz. M/s. Basumati Corporation Limited. The petitioner/company is paying gratuity to its employees as per provisions of the Payment of Gratuity Act and Rules made thereunder. The employees of the petitioner/company including the working journalists agreed to that and all along received payment of gratuity as per provisions of the said Act without raising any objection.
(2.) The respondent No. 5 was an employee of the petitioner/company and he retired on 10.1.1994 and thereafter he was paid gratuity amounting to Rs. 48,829/- on 8.3.1994. Said amount was paid under the Payment of Gratuity Act, 1972. But the said respondent No. 5 by his letter dated 29.3.1994 demanded further payment of gratuity under the Payment of Gratuity Act, 1972. He also demanded further payment of gratuity under the new Payment of Gratuity Act, as he was also covered under the said Act. After receiving the said letter, the petitioner/company checked its calculation and thereafter being satisfied, informed the respondent No. 5 that the amount of gratuity was correctly calculated. The respondent No. 5, after two years, made a further representation to the Managing Director and in his letter Gated 4.3.1996 he for the first time demanded that he was entitled to get the benefit of gratuity under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 instead of the Payment of Gratuity Act, 1972. The petitioner/company submits ihat the gratuity all along was paid to its employees including the working ,ournalists under the Payment of Gratuity Act, 1972 and it has been confirmed oy the State Government by its communication dated 3.6.1996. As the petitioner/company did not allow the said representation of the respondent No. 5, so he made a representation before the Secretary, Government of West Bengal, Labour Department by his letter dated 17.5.1996 and on the basis of the said representation the Assistant Labour Commissioner, Government of West Bengal initiated a proceeding under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and issued a notice on 17.1.1997 to the Corporation. On 20.2.1997 the petitioner/corporation filed written statement wherein it was clearly stated that the employees of the said corporation were entitled to get gratuity under the Payment of Gratuity Act, 1972 and respondent No. 5 also accepted the payment made as per the said Act without any objection and as such he was estopped from making any further claim under the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. But the said Assistant Labour Commissioner did not consider all these things and by the notice dated 6.8.1997 he in purported exercise of the power conferred by sub section 1 of Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 proceeded with the matter. Even after conclusion of the proceeding, no order was passed by the said Assistant Labour Commissioner and although the disputed question of the applicability of the Act in respect of the payment of gratuity could not be settled by and between the parties still the said Assistant Labour Commissioner did not refer the matter to the State Government for referring the said dispute to any Labour Court constituted under the provisions of the Industrial Dispute Act. Instead the said Assistant Labour Commissioner by his order dated 13.6.2001 held that the respondent No. 5 was entitled to receive from the corporation a sum of Rs. 25,083-50p only towards additional gratuity to be paid in accordance with the provisions of Section 5 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and he was also pleased to issue a certificate for recovery of the said amount to the Collector, Calcutta from the petitioner/ corporation for payment to the respondent No. 5. According to the petitioner, the Assistant Labour Commissioner totally acted beyond his scope and jurisdiction and ostensibly exercised the powers conferred upon him under sub section 1 of Section 17 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. Said order is thoroughly illegal and as such the petitioner/corporation has preferred this writ petition praying for setting aside the said notice.
(3.) The respondent No. 5 has contested the writ petition by filing affidavit-in-opposition wherein he denied the claims of the petitioner on all the relevant points. In the A/O, the respondent No. 5 admitted that he has received payment of gratuity from the petitioner as per provisions of the Payment of Gratuity Act, 1972. But, according to the said respondent, as he was working as a journalist, so as per provisions of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, hereinafter referred as the 'Act', he was entitled to get more amounts towards payment of gratuity. The respondent No. 5 has claimed that there cannot be any estoppel against him in claiming further amount to which he was legally entitled. He has claimed that the Assistant Labour Commissioner perfectly decided the question and he was justified in issuing the certificate for recovery of the said amount for the payment to be made in favour of the respondent No. 5. He has further claimed that the petitioner/corporation unnecessarily and without any reason has filed this writ petition challenging the decision of another department of the Government of West Bengal. The respondent No. 5 has prayed for dismissal of the writ petition.;