BHARAT COKING COAL LIMITED Vs. REGIONAL LABOUR COMMISSIONER (CENTRAL)

JUDGEMENT

(1.) The petitioner herein, Bharat Coking Coal Limited (hereinafter referred to as 'the B.C.C.L.') is a Government Company within the meaning of Sec. 617 of the Indian Companies Act. The instant writ petition has been filed by B.C.C.L. for quashing the order passed by the Controlling Authority (Respondent No. 2 herein) under the Payment of Gratuity Act, 1972 (hereinafter referred to as "the Act") dated 15.9.1980. It has also challenged the order passed in appeal by the Regional Labour Commissioner (Respondent No. 1 herein) dated 21.5.1981, whereby he has dismissed the appeal preferred by the B.C.C.L. against the award of the Controlling Authority. The Controlling Authority had, on an application made to it by respondent No. 3 herein, awarded a sum of Rs. 7,945.66 paise by way of gratuity which was found payable to respondent No. 3 in terms of the agreement known as the National Coal Wage Agreement II dated 11.6.1979. The facts of the case are not in dispute. Respondent No. 3 was employed as Mining Sardar in Kooridih Colliery, which colliery was nationalised and ultimately vested in the petitioner, B.C.C.L. under the Coking Coal Mines (Nationalisation) Act, 1972 and the Coal Mines (Nationalisation) Act, 1973. The respondent No. 3 whose services were continued even after vesting, was superannuated on attaining the age of superannuation on 29.1.1973, Altogether he had to his credit 43 years of continuous service in the colliery. On 29.1.1980, B.C.C.L. paid to respondent No. 3 a sum of Rs. 17,069.60 paise which was payable to him by way of gratuity under the Act. The petitioner was not satisfied, since he claimed that apart from gratuity payable to him under sub -section (3) of Sec. 4 of the Act, which was a maximum of twenty months wages, he was also entitled to gratuity in terms of the agreement known as the National Goal Wage Agreement II under which for every completed year of service after thirty years of service, a workman was entitled to one month's wages by way of gratuity. The B.C.C.L. did not accede to the request of respondent No. 3 for payment of this additional sum by way of gratuity, which according to respondent No. 3 was a sum of Rs. 8,794.84 paise. The respondent No. 3 thereafter filed an application before the Controlling Authority under the provisions of the Act claiming this amount, since the same had remained unpaid. The Controlling Authority by its order dated 15.9.1980 awarded a sum of Rs. 7,945.66 paise by way of gratuity payable in terms of the National Coal Wage Agreement II over and above the gratuity payable under sub -section (3) of Sec. 4 of the Act. As stated earlier this award was challenged by the B.C.C.L. in appeal but the appeal was dismissed by order dated 21.5.1981 by respondent No. 1, the Regional Labour Commissioner (Central), Dhanbad.

(2.) The learned counsel appearing on behalf of the petitioner has urged two contentions before me. Firstly he contends that an employee is not entitled to receive any amount of gratuity which exceeds twenty months wages. Secondly, he submitted that even if an employee is entitled to any amount by way of gratuity under any agreement or award or contract, he could not realise the said amount by taking recourse to a proceeding under the Act. He has to seek his remedy under the Industrial Disputes Act. The fact that the employee concerned was entitled to receive additional amount by way of gratuity in terms of the National Coal Wage Agreement II, was not disputed before me.

(3.) The first submission urged on behalf of the petitioner overlooks the scheme of Sec. 4 of the Act. Sub -section (1) of Sec. 4 provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years. Sub -section (2) provides that for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned. Sub -section (3) provides that the amount of gratuity payable to an employee shall not exceed twenty months' wages. It is no doubt true that in the absence of any other provision in the Act, the submission adv(sic) on behalf of the petitioner would be (sic) However, sub -section (5) of Sec. 4 (sic) provides as follows: