@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThis writ petition came to be posted on being specially ordered by the order of the Hon''ble Chief Justice dated
28.01.2011.
2. The writ petition is filed by M/s. Hindustan Photo Films, the wholly owned company by the Central Government represented by the Deputy
General Manager. The challenge made in this writ petition is to the common order passed by the first Respondent in Appeal Nos. 8 of 2004, 310
to 325 of 2004 dated 25.11.2004. The writ petition was admitted on 17.01.2005. Pending writ petition, this Court granted an interim stay. For
some contesting Respondents, notice is yet to be served. Some contesting Respondents have passed away and the Legal Representatives have
been brought on record. However, for R10, Mr. N. Manokaran appears.
3. Respondents 3 to 19 were employees of the Petitioner company and they moved the second Respondent -Controlling Authority under the
Gratuity Act claiming a difference in gratuity payable to them. Their claim was based upon the interim relief granted to them. Therefore, they moved
the applications before the second Respondent claiming the computation of the interim relief as part of the wage and for non-payment, they claimed
10% simple interest. The second Respondent - Controlling Authority directed the payment of gratuity inclusive of interim relief together with 10%
simple interest from the date of actual payment due till the date of payment. Against the order dated 30.01.2004 and 27.02.2004, passed by the
Controlling Authority, the Petitioner company filed Gratuity Appeal Nos. 8 of 2004 to 310 to 325 of 2004 u/s 7(7) of the Payment of Gratuity
Act, 1972.
4. The Appellate Authority concurred with the order passed by the second Respondent and dismissed the appeals filed by the Petitioner company.
The appellate authority held that the term wage found in Section 2(s) of the Payment of Gratuity Act, 1972 includes all payments which are earned
by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him
in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other
allowance. Therefore, on the basis of the all inclusive definition, the appellate authority held that the conclusion of the Controlling Authority is just in
lieu of wage revision. Therefore, the appeals filed by the Petitioner was rejected.
5. Challenging this order, the Petitioner company contended that the Petitioner company is having scheme and if any dispute relating to the
payment, only arbitration will lie. It is also contended that since the Petitioner company has become sick and referred to BIFR for framing scheme
and due to the intervention of Central Government''s announcement of ban on wage revision in terms of sick industries, the company entered into a
settlement u/s 18(1) of the Industrial Disputes Act for payment of interim relief at the rate of 5% of pay. Subsequently, despite revival package, the
company could not be revived. Therefore, the employees were given voluntary retirement in terms of Voluntary Retirement Scheme introduced
during 1999. At that time, the dues of the employees were paid including gratuity. Therefore, there cannot be any further claim in respect of the
payment of gratuity.
6. Since the claim of gratuity is based upon the provisions of the Payment of Gratuity Act, 1972 being a special enactment any claim for payment
has to be raised before the Authorities under the Act and not before any other forum. This position of law has been clarified by the Supreme Court
in State of Punjab Vs. Labour Court Jullunder and Others, . In paragraph No. 7, the Supreme Court observed that the Payment of Gratuity Act
enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right of
payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for
recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment.
For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of
administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility, and he has been invested with an
amplitude of power for the full discharge of that responsibility. Any error committed by the Controlling Authority can also be corrected in appeal
by the appropriate government or an appellate authority particularly constituted under the Act. Therefore, it is held that the inescapable conclusion
was that the preliminary independent proceedings due under the Act must be taken only under the Act and not in any other forum. Therefore, the
first objection that the party must go before the Arbitrator fails.
7. The second objection of the Petitioner company is that the employees were sent out in Voluntary Retirement Scheme and that gratuity due to
them was paid and therefore, no further claim can be made. It must be noted that u/s 14 the provisions of the Gratuity Act or any rule will override
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. Therefore, inasmuch as gratuity due not paid to the employees, they are eligible to dues of gratuity.
8. The last objection that the interim relief paid pursuant to the settlement u/s 18(1) cannot be termed as wage and only it is interim relief. It cannot
be accepted that the employees working in the sick industry having prevented by the Government of India, no further wage negotiation can be
made and the management in order to have better industrial relations have provided certain amount as interim relief. Pending consideration of any
final payment must also be taken as a wage as the term wage has been defined u/s 2(s) of the payment of Gratuity Act and such a definition will
receive liberal interpretation. The term wage includes not only what was paid but also what was payable. The term ""last drawn wages"" found in
Section 4(2) came to be considered by a Division Bench of this Court headed by Shri. A.P. Shah, the Chief Justice then was vide its judgment in
P. Selvaraj Vs. The Management of Shardlow India Limited, The Joint Commissioner of Labour and The Assistant Commissioner of Labour, . In
that judgment, the Division Bench after referring to several other decisions of the Supreme Court, in paragraph 35 of its judgment, held that the
Gratuity Act is a beneficial piece of legislation and it should receive an interpretation consistent with the principles of equity and fair play. Therefore,
the term ""last drawn wage"" found in Section 4(2) of the Gratuity Act should receive its full meaning and it cannot give any fractured interpretation.
It is also pointed out that the Management cannot adopt an artifical interpretation with reference to the term ""wages"" which is defined under the
Gratuity Act, must include not only what is paid but also what is payable to a workman.
9. It is seen in the light of the above principles, wage will include interim relief granted to the workmen and the same will also form part of the
wages and the same wage does not come within the meaning of exclusions found in the definitions.
10. Under the above said circumstances, the writ petition is misconceived and bereft of legal reasons. Accordingly, the writ petition stands
dismissed. No costs. Consequently, connected WPMP is closed. In the light of the dismissal of the writ petition, the contesting Respondents or
their legal heirs are entitled to withdraw the amount lying with the second Respondent.
