THE MANAGING DIRECTOR, MECOFED Vs. TIKENDER SINGH AND ORS.

JUDGEMENT

(1.) WE have heard learned counsel for parties and perused the pleadings of writ appeal.

(2.) THIS writ appeal has been filed by the Meghalaya State Cooperative Marketing and Consumers Federation Ltd. (hereinafter to be referred as MECOFED). It is a co -operative society registered under the Meghalaya Co -operative Societies Act (Assam Act 1 of 1950). It was adopted and modified by the Meghalaya Adaptation Laws Order (No. 3) of 1973. The service conditions of the employees, respondents herein are governed by the MECOFED Service, Classifications, Appointment, Control and Appeal (CACA) Rules, 1980. It being an instrument of the State comes within the meaning of a State or other authorities under Article 12 of the Constitution of India. This organization is said to be totally dependent upon the State for financial assistance and for day -to -day functions. The Managing Director of the organization is always appointed directly by the State Government and its senior officers virtually do not have any say in this regard. Even in the case of policy matter, the MECOFED is not competent to take any action without prior approval of the State Government. The State Government is said to have approximately 95% investment in paid up share capital of the MECOFED. Thus, there is a deep and pervasive control of the Government of Meghalaya over this organization. The Scheme of Golden Handshake, whereby the respondents employees parted company with the organization was prepared at the instance of the Government of Meghalaya and all the dues etc. are said to have been paid only by the Govt. of Meghalaya. It appears that in WP(C) No. (SH) 251 of 2004 vide order dated 25.08.2006, the appellant organization was directed to dispose of the representation of the respondents with a speaking order within a period of eight weeks from the date of receiving copies of the order. The two representations dated 18.06.2004 and 16.08.2008 were submitted by the respondents before the appellant organization while urging that they were dissatisfied with regard to terms of settlement of dues under the Golden Handshake Scheme with particular reference to payment of gratuity, leave salary, duty salary and the arrears of pay due on account of pay revisions in 1987 and 1996 in the State of Meghalaya which was adopted by the appellant organization for its employees. Without settling the terms and conditions in the light of representation made by the respondents, the appellant organization allowed the retirement of the respondents on 31.08.2004. Thus, the respondents were not given any chance of hearing in this matter. It is only in this background that WP(C) No. (SH) 251 of 2004 was filed wherein vide order dated 25.08.2004 liberty was granted to the respondents to file fresh representation before the appellant organization. The appellant organization was also directed to dispose of the representation by way of passing a speaking order, and thus, the representations were disposed of by the orders dated 01.12.2006 and 02.12.2006. Thereafter, the respondents filed WP(C) No. 52 of 2007 for payment of leave encashment and arrears of salary etc. Regarding the question of payment of gratuity, this Court vide order dated 02.06.2010 had directed the appellant organization/controlling authority to dispose of the representations filed by the respondents on 22.02.2010 within a period of two months. The controlling authority, thus, by misusing the power under the payment of Gratuity Act, 1972 passed the order dated 30.07.2010 holding that the respondents were entitled to claim payment of gratuity under the Act. Not being satisfied with the order dated 30.07.2010 passed by the controlling authority, the appellant -organization herein filed a review application before the controlling authority/Labour Commissioner against the order dated 30.07.2010 contending that the said order was passed without granting an opportunity of hearing. Thus, the order requires a review. The grounds taken in the review, inter alia, were that the service rules of MECOFED did not provide for payment of gratuity on retirement, termination of service or resignation and that there was no instance of payment of gratuity to any of its employees in the past. As the review petition remained pending with the authority, the respondents filed a writ petition in the Court, wherein, vide the order passed, the appellant organization/controlling authority was directed to dispose of the petition within a period of two months. Thereafter, upon hearing both the parties, the appellant organization/controlling authority passed the order dated 30.05.2012, whereby, the claims of the respondents were disallowed. Thus, the respondents filed a writ petition against the order dated 30.05.2012 on the ground that the order in question was non -speaking; findings recorded vide the earlier order by the competent authority dated 30.07.2010 was not over ruled; the order was passed on total non -application of mind, and the controlling authority failed to exercise the jurisdiction vested in it by the law. It was also submitted that no order was passed under Section 5 of the Payment of Gratuity Act, 1972. It was also the contention of the respondents that the gratuity is a nature of statutory payment and thus such payment has to be cleared within a stipulated time. The appellant organization comes within the definition of establishment under Section 1(3)(b) of the Payment of Gratuity Act, 1972. The authority concerned exceeded jurisdiction in passing the order on review petition and the payment of gratuity was the component of this Scheme.

(3.) LEARNED single Judge has also placed reliance on a judgment of Hon'ble the Apex Court in Dr. Ashok Kumar Maheshwari v. State of UP and Another, reported in : AIR 1998 SCC 966 to come to the conclusion that there cannot be estoppel against the statutory right. If the rules provide for certain benefits, it cannot be given up and no waiver, would not bind the authority. This view has been taken in the case of M/s. Mathra Parshad & Sons v. State of Punjab & Ors, reported in : AIR 1962 SC 745. Learned single Judge having considered the submissions on behalf of the appellant organization on the basis of Hon'ble the Apex Court's judgments in the case of (i) State of Punjab and others v. The Labour Court, Jullundur and others, reported in : AIR 1979 SC 1981; (ii) Guruvayoor Devaswom Managing Committee and another v. CK Rajan and others, reported in : (2003) 7 SCC 546; (iii) Coal India Ltd. and Others v. Saroj Kumar Mishra, reported in : (2007) 9 SCC 625 and (iv) N Kannadasan v. Ajoy Khose and others, reported in : (2009) 7 SCC 1, did not agree with the submissions of the authority and passed the impugned order. Now being aggrieved by the judgment passed by learned single Judge in WP(C) No. (SH) 154 of 2012 dated 10.07.2013 the appellant organization has filed this appeal.