Case: Shaikh Kaisar & Others Vs. Forbes Gokak Limited & Others

P.C.Heard learned counsel, appearing on behalf of respective parties.2. The appellants have approached us by intra-court appeal under Clause 15 of the Letters Patent, feeling aggrieved by the order passed by learned Single Judge of this High Court in writ petition No. 7149/2006 on 18-10-2006.3. Appellants are ex-employees of respondent No. 1. They have accepted voluntary retirement under available scheme and there is no dispute that they are entitled to gratuity. It is also an admitted position that employer - respondent No. 1 has paid the amount of gratuity to the employees as payable according to the notion of the employer. The employees took the dispute to the Controlling Authority under section 7 sub-section 4 of the Payment of Gratuity Act, 1972 because it was their grievance that certain amounts which attracted the definition of "wages" as contained in section 2(s) of the Payment of Gratuity Act, 1972 were excluded by the employer by giving different nomenclature to those amounts and thus they are paid gratuity less than what they are entitled to.The dispute was rejected by the Controlling Authority. The employees took up the matter in an appeal before the appellate authority (Deputy Commissioner of Labour) under the Payment of Gratuity Act, 1972 which authority was pleased to uphold the contention of the employees vide his order dated 12-09-2006. Feeling aggrieved by the same, the employer approached this court by way of writ petition under Articles 226 and 227 of the Constitution of India numbered as writ petition No. 7149/2006.4. Admittedly, all the employees had filed different claims before the Controlling Authority as also different appeals before the appellate authority. The employer filed only single writ petition challenging the judgment and order of the appellate authority which had disposed of all the appeals of 42 employees by common judgment and order. An objection was raised to the maintainability of writ petition thereby challenging the decision in appeals in favour of 42 employees, although by common judgment and order by the appellate authority. The learned Single Judge was pleased to turn down the objection, issue Rule and also grant of interim stay in terms of prayer clause (D) in the writ petition.Feeling aggrieved by the finding that one writ petition as against all 42 employees was maintainable and also grant of interim stay, the employees have approached this court, by intra-court appeal.5. Learned advocate Shri J.N. Singh for contending that learned Single Judge was not justified in observing that single writ petition is maintainable, has referred same reported judgments which were relied upon by him before the learned Single Judge.In the matter of Management, E.I.D. Parry India Ltd. vs. Assistant Commissioner of Labour-1 and others, reported in 2001 (88) FLR 490 , it was held by the learned Single Judge of the Madras High Court thus :-"The single writ petition against the decision of several appeals is not maintainable even if several appeals were decided by a common judgment. Though common order has been passed in respect of identical claims, assigning identical reasons, the order affects the individual claim and not being a common right, no joint writ petition is maintainable."Learned Single Judge of this court has dealt with this case in her judgment paragraph No. 4. In fact, she has referred to the observations of learned Single Judge of Madras High Court in the same judgment and more particularly as contained in paragraph 14 of the reported judgment. We may state that learned Single Judge of Madras High Court has considered quite a good number of decisions of the Supreme Court on the subject and thereafter, recorded following observations."14. Whether a joint petition should be permitted or not depends on facts and circumstances of each case. No hard and fast rule can be laid down. Persons having different cause of action and the identity of interest not being the same cannot join each other to file a joint writ petition. Where the orders impugned by a single petition under Article 226 are passed in various appeals when the same are not interconnected, the petitioner cannot maintain a single writ petition."6. Learned advocate Shri Singh has placed reliance upon the observations in paragraph No. 27 of the judgment of the Supreme Court, a decision of the Constitutional Bench in the matter of Dhanyalakshmi Rice Mills, etc. v. the Commissioner of Civil Supplies and another, reported in AIR 1976 S.C. 2243, which read as follows."27. The remedy under Article 226 is not appropriate in the present cases for these reasons as well. First, several petitioners have joined. Each petitioner has individual and independent cause of action. A suit by such a combination of plaintiffs would be open to misjoinder. Second, there are triable issues like limitation, estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative surcharges of the scheme and allocating the expenses with regard to quality as well as quantity of rice covered by the permits."On going through the observations as borrowed from various judicial pronouncements by the learned Single Judge, in the matter of Management, E.I.D. Parry India Ltd. (supra) and the observations of the Honble Supreme Court relied upon by learned advocate Shri Singh, it can be seen that the writ petition cannot be treated at par either with civil suit or with criminal case and rules of joinder, mis-joinder and non-joinder as applicable to those types of litigations are not necessarily applicable to a writ petition. However, a common writ petition by several petitioners or a common writ petition against several respondents may not be maintainable or rather may not be desirable when there are different causes of action pertaining to each individual petitioner or respondent, when there are different sets of facts and when there are different remedies sought. Otherwise, as observed in paragraph No. 14 of the judgment in the case of Management, E.I.D. Parry India Ltd. (supra), there need not be a hard and fast rule that writ petition by or against several petitioners/ respondents is not maintainable.In the matter at hands, following observations of the learned Single Judge can be usefully reproduced."3. The questions raised in this petition do not relate to the questions of facts but a substantial question of law relating to the interpretation of Section 2(s) of the Payment of Gratuity Act, 1972 is involved in the instant petition.""4. Since the facts in respect of individual employees i.e. respondents Nos.1 to 42 do not fall for consideration in the instant petition and the petition merely raises a substantial question of law, it would not be in the interest of justice to direct the petitioners to file separate petitions. Even otherwise, the appellate authority i.e. respondent No. 44 has decided all the appeals filed by respondents Nos. 1 to 42 by a common order dated 12-09-2006."It thus appears that the dispute is within limited compass and learned Single Judge has issued Rule only for the purpose of determination as to whether payments of amounts under various heads which are given different names (not "Pay" and "Dearness Allowances") such as Additional Reward Scheme (ARS) and Other Reward Scheme (ORS), fall within the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972. No doubt, number of years of service may be different in case of different employees and the last pay drawn may also be different in case of different employees. Once the High Court records its finding as to whether these amounts titled as "ARS" and "ORS" are covered by the definition "wages" as under section 2(s) of the Payment of Gratuity Act, 1972, what remains is the ministerial calculations for the purpose of determining the amount payable to each individual employee. On this count, it cannot be said that there are different causes of action. It may not be incorrect to say that even if the Company files 42 writ petitions challenging the decision in favour of 42 employees (by common judgment and order), all the writ petitions would be clubbed together, heard together and decided by common judgment and order giving interpretation of the court of the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972.7. For the reasons discussed hereinabove, we find no hesitation to concur with the view taken by the learned Single Judge so far as challenge to the maintainability of single writ petition as against all 42 employees although they had come with 42 different complaints and appeals.8. As a second limb of argument, learned advocate Shri Singh, for the appellants expressed grievance because learned Single Judge while issuing Rule in favour of the Company has also granted stay to the order impugned in the writ petition. Consequently, the Company is not required to deposit the amount found due to the employees by the appellate authority. Shri Singh, for the purpose of submission of his argument, has placed reliance upon section second proviso to section 7 sub-section 7 of the Payment of Gratuity Act, 1972, which reads thus:-"Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount of equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount."The proviso relates to fact circumstances with the Controlling Authority deciding the applications in favour of the employees and the employer is required to deposit the amount before the appellate authority. Such is not the case before us. On reference to section 7 sub-section 4(a), it is evident that employer is required to deposit with the Controlling Authority such amount as he admits to be payable by him as gratuity, as and when any dispute as to the payment of gratuity payable to the employees arises. We are informed that the employer has already paid the amount which, according to him, is due to the employees. Therefore, we feel that section 7 sub-section 7 proviso second cannot render any assistance to present appellants. We are, therefore, not inclined to consider second prayer of learned advocate Shri Singh favourably.9. Learned Single Judge while granting interim relief has not discussed the reasons at length, but the reasons are not impossible to be visualized. Admittedly, the Company is functioning well and it is not a Company which has gone in liquidation or which is closed down. The amount if found due after the decision of the High Court can be directed to be paid within the reasonable time. Employees are already paid some amount which employer admits to be due to the employees by way of gratuity. We, therefore, do not find necessity to interfere with grant of stay during pendency of writ petition.10. At this stage, we have inquired learned advocate Shri Dankh as to whether he has paid requisite court fee taking into consideration that he has narrated cause of action pertaining to 42 respondents together when Shri Dankh has narrated that the employer Company would be willing and shall be depositing the requisite court fee as required for 42 writ petitions in the matter before learned Single Judge. We accept the assurance and believe the learned advocate for the Company to comply the same within reasonable time.

Decision:
1[ds]On going through the observations as borrowed from various judicial pronouncements by the learned Single Judge, in the matter of Management, E.I.D. Parry India Ltd. (supra) and the observations of the Honble Supreme Court relied upon by learned advocate Shri Singh, it can be seen that the writ petition cannot be treated at par either with civil suit or with criminal case and rules of joinder,er as applicable to those types of litigations are not necessarily applicable to a writ petition. However, a common writ petition by several petitioners or a common writ petition against several respondents may not be maintainable or rather may not be desirable when there are different causes of action pertaining to each individual petitioner or respondent, when there are different sets of facts and when there are different remedies sought. Otherwise, as observed in paragraph No. 14 of the judgment in the case of Management, E.I.D. Parry India Ltd. (supra), there need not be a hard and fast rule that writ petition by or against several petitioners/ respondents is notthus appears that the dispute is within limited compass and learned Single Judge has issued Rule only for the purpose of determination as to whether payments of amounts under various heads which are given different names (not "Pay" and "Dearness Allowances") such as Additional Reward Scheme (ARS) and Other Reward Scheme (ORS), fall within the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972. No doubt, number of years of service may be different in case of different employees and the last pay drawn may also be different in case of different employees. Once the High Court records its finding as to whether these amounts titled as "ARS" and "ORS" are covered by the definition "wages" as under section 2(s) of the Payment of Gratuity Act, 1972, what remains is the ministerial calculations for the purpose of determining the amount payable to each individual employee. On this count, it cannot be said that there are different causes of action. It may not be incorrect to say that even if the Company files 42 writ petitions challenging the decision in favour of 42 employees (by common judgment and order), all the writ petitions would be clubbed together, heard together and decided by common judgment and order giving interpretation of the court of the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972.7. For the reasons discussed hereinabove, we find no hesitation to concur with the view taken by the learned Single Judge so far as challenge to the maintainability of single writ petition as against all 42 employees although they had come with 42 different complaints and appeals.8. As a second limb of argument, learned advocate Shri Singh, for the appellants expressed grievance because learned Single Judge while issuing Rule in favour of the Company has also granted stay to the order impugned in the writ petition. Consequently, the Company is not required to deposit the amount found due to the employees by the appellate authority.The proviso relates to fact circumstances with the Controlling Authority deciding the applications in favour of the employees and the employer is required to deposit the amount before the appellate authority. Such is not the case before us. On reference to section 74(a), it is evident that employer is required to deposit with the Controlling Authority such amount as he admits to be payable by him as gratuity, as and when any dispute as to the payment of gratuity payable to the employees arises. We are informed that the employer has already paid the amount which, according to him, is due to the employees. Therefore, we feel that section 77 proviso second cannot render any assistance to present appellants. We are, therefore, not inclined to consider second prayer of learned advocate Shri Singh favourably.9. Learned Single Judge while granting interim relief has not discussed the reasons at length, but the reasons are not impossible to be visualized. Admittedly, the Company is functioning well and it is not a Company which has gone in liquidation or which is closed down. The amount if found due after the decision of the High Court can be directed to be paid within the reasonable time. Employees are already paid some amount which employer admits to be due to the employees by way of gratuity. We, therefore, do not find necessity to interfere with grant of stay during pendency of writ petition.10. At this stage, we have inquired learned advocate Shri Dankh as to whether he has paid requisite court fee taking into consideration that he has narrated cause of action pertaining to 42 respondents together when Shri Dankh has narrated that the employer Company would be willing and shall be depositing the requisite court fee as required for 42 writ petitions in the matter before learned Single Judge. We accept the assurance and believe the learned advocate for the Company to comply the same within reasonable time.