BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/07/2011
CORAM
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA
W.P.(MD)No.900 of 2006
and
M.P.(MD)No.975 of 2006
Sree Visalakshi Mills (P) Ltd.,
"A' Unit,
Visalakshi Nagar, Madurai.
rep. by its Director,
Mr.N.Thiagarajan ... Petitioner
Vs.
1.The Controlling Authority
under the Payment of Gratuity Act,
(Assistant Commissioner of Labour (In-charge)
Madurai-625 020.
2.The Secretary to the Government
of Tamil Nadu,
Labour Department,
Fort St. George,
Chennai.
3.The Commissioner of Labour,
D.M.S.Campus,
Teynampet,
Anna Salai,
Chennai.
4.The Labour Officer,
Office of the Commissioner of Labour,
K.K.Nagar,
Madurai-20
5.Thiru.V.Pandian ... Respondents
PRAYER
Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus to call for the records
relating to the award passed by the 1st respondent in P.G.No.138 of 2003 dated
21.09.2005 and quash the same and issue direction to the 2nd respondent to
appoint a Controlling Authority under the Payment of Gratuity Act for Madurai
Circle for conducting fresh enquiry in P.G.No.138 of 2003.
!For Petitioner ... Mr.P.Chandra Bose
^For R1 to R4 ... Mr.D.Muruganandam
Addl. Government Advocate
for 5th Respondent ... No appearance
:ORDER
The writ petition is directed against the order passed by the Labour
Officer, holding charge of post of Assistant Commissioner, Madurai, in exercise
of the power of the Controlling Authority, under the payment of Gratuity Act.
2.The case set up by the petitioner is that the 5th respondent was
employed by the petitioner company and on superannuation, he was relieved from
services after payment of gratuity.
3.The 5th respondent being dissatisfied with the payment of gratuity,
filed a claim before the Controlling Authority under the payment of Gratuity
Act, on the ground, that he had not been paid gratuity for two years of service.
4.The claim raised by the 5th respondent was accepted and the petitioner
was directed to pay a sum of Rs.6,000/- as balance amount of gratuity due to the
5th respondent.
5.When the writ petition came for hearing, this Court while admitting the
petition on 21.01.2006 passed the following order:-
“There will be an order of interim stay, subject to the condition that the
petitioner depositing 50 percent of the amount to the Assistant Commissioner of
Labour/first respondent, within a period of three weeks from the date of receipt
of a copy of this order, failing which the interim stay shall be stand
automatically vacated. Notice.”
6.The learned counsel for the petitioner states that pursuance to the
order passed by this Court, 50% of the gratuity amount stands paid.
7.The only ground on which the petitioner had challenged the order passed
by the Controlling Authority, is that by way of notification, dated 15.04.2000,
the Assistant Commissioner of Labour, office of the Deputy Commissioner of
Labour, Madurai, were conferred with powers of the Controlling Authority under
the payment of Gratuity Act.
8.It is the case of the petitioner that on transfer of Assistant
Commissioner of Labour, no new Assistant Commissioner was appointed, and the
powers of the Assistant Commissioner were vested with the Labour Officer, the
4th respondent, by way of stop gap arrangement, for administrative duties only.
9.It is contended by the learned counsel for the petitioner that a person
holding administrative charge as stop gap arrangements has no jurisdiction to
exercise the statutory powers under the Act.
10.In support of his contention, the learned counsel for the petitioner
relied upon the judgment of this Court in 1997 Writ L.R.33, [C.Baskaran vs. The
District Collector, Trichy and another] wherein the Hon’ble Division Bench of
this Court was pleased to lay down as under:-
“There is one more aspect of the matter which has not been noticed by the
petitioner/appellant and also by the learned single judge. The order is not
passed by the District Collector, Trichy, but it is passed by the officer-in-
charge of the office of the District Collector. The very title of the
proceedings shows that it is the order passed by the Incharge Collector. In-
charge Collector cannot be considered to be the Collector and he is entitled to
discharge the statutory functions of the Collector. He is only intended to look
after the day-to-day administration and is not entitled to exercise the
statutory powers. Therefore, on this ground also, the impugned order is liable
to be set aside.”
11.In the case of K.Thangarajan vs. K.Palanisamy, the view of the Hon’ble
Division Bench of this Court referred to above was reiterated.
12.The learned counsel appearing for the State, on the other hand,
contended that by way of notification the Assistant Commissioner, was given the
power of the Controlling Authority under the Gratuity Act, and the fact that the
Labour Officer was performing the duties of the Assistant Commissioner.
Therefore, no fault can be found with the exercise of the power of Controlling
Authority, by the Labour Officer.
13.It is also the contention of the learned counsel appearing for the
State, that once a person is vested with the power of the Assistant
Commissioner, the notification would cover the exercise of power of the
Controlling Authority by Labour Officer and as no special notification is
required.
14.However, on consideration, I find force in the contention raised by the
learned counsel for the petitioner. Once by notification, an authority is
conferred with jurisdiction of quasi-judicial authority, the same cannot be
exercised by a person holding the post as stop gap arrangements. This is the
view of the Hon’ble Division Bench of this Court referred to above.
15.In view of the pronouncement by the Hon’ble Division Bench of this
Court referred to above, the writ petition deserves to be allowed, accordingly,
impugned order is set aside, the matter is remanded back to the Controlling
Authority, to pass fresh orders after hearing the parties.
16.Keeping in view of that the claim of workman is pending since, the
Controlling Authority is directed to expedite the hearing and finally dispose
the application within a period of two months from the date of receipt of
certified copy of this order. Consequently, connected Miscellaneous Petition is
closed. No costs.
er
To
1.The Controlling Authority
under the Payment of Gratuity Act,
(Assistant Commissioner of Labour (In-charge)
Madurai-625 020.
2.The Secretary to the Government
of Tamil Nadu,
Labour Department,
Fort St. George,
Chennai.
3.The Commissioner of Labour,
D.M.S.Campus,
Teynampet,
Anna Salai,
Chennai.
4.The Labour Officer,
Office of the Commissioner of Labour,
K.K.Nagar,
Madurai-20.
5.The Additional Government Pleader,
Madurai Bench of Madras High Court,
Madurai.