1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.464 OF 2008 Atul V. Bhadri. ..Petitioner V/s. NRC Limited ..Respondent. Mr.H.M.Thakore i/b. M/s.Thakore Jariwala & Ass. for petitioner. Mr.M.P.Rao a/w. S.B.Rao i/b. G.S.Rao for Respondent. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : NOVEMBER 20, 2008. : NOVEMBER 20, 2008. : NOVEMBER 20, 2008. P.C. P.C. P.C. : : : 1. Heard Counsel for the parties. 2. This Petition is by the employee (Vice- President, Marketing) of the Respondent Company. The Petitioner tendered resignation on 26th March, 2007. The same was accepted by the Vice President(PERS & ADMIN) on 31st March, 2007. This letter clearly records that the remaining notice period of 84 days is waived off as a special case. Relying on this document, it is asserted that the Respondent company was liable to pay entire dues of the Petitioner without any deduction. On the other hand, the Respondent company states that the Vice President(PERS & ADMIN) who purportedly accepted the 2 resignation of the Petitioner as recorded in the letter dated 31st March, 2007 had no authority to waive notice period and the Authority was exclusively that of Managing Director of the Respondent company. No such concession was given by the Managing Director in the present case. Besides, the Respondent company submits that even the said Vice President subsequently resigned. 3. Be that as it may, the fact remains that the Petitioner has not disputed the existence of circular issued by the Company relating to notice period which requires that the notice period can be waived only by the Managing Director. If it is so, reliance placed by the Petitioner on the communication received by him from the then Vice President dated March 31, 2007 Exh.D at page 22 will be of no avail. It is on that premiss, the Respondent company has proceeded to compute outgoing of the Petitioner, as can be discerned from page-95 of the sur-rejoinder affidavit dated 18th November, 2008. The Respondent company after deducting notice pay amount of Rs.1,89,833/-, in lieu of notice period has in fact offered to pay the balance amount of Rs.1,37,210/- to the Petitioner, which was forwarded to the Petitioner alongwith covering letter dated 5th November, 2007. The Petitioner declined to accept the same and 3 maintained the stand that no deduction was permitted in view of letter of the Vice-President dated 31st March, 2007. This stand of the Petitioner cannot be accepted, for the simple reason that the existence of circular issued by the Respondent company authorising the Managing Director to dispense with the Notice period is not in dispute. If no other officer was authorised to exempt the notice period, communication relied upon by the Petitioner dated 31st March, 2007 is of no avail. 4. Counsel for the Petitioner would then contend that after resignation, the Petitioner was continuously sending letters to the Respondent company from time to time claiming the outstanding dues of Rs.3,41,522/-(excluding gratuity amount of Rs.3,86,250/-). The Respondent company did not bother to send any reply. The fact that no response was sent to the Petitioner does not necessarily mean that the Respondent company has admitted its liability to pay entire amount of Rs.3,41,522/-. In any case, what is overlooked by the Petitioner is the communication sent by the Respondent company on 5th November, 2007, which clearly articulates the stand of the Respondent company that it was liable to pay only sum of Rs.1,37,210/- and nothing more. This is the stand reiterated in the reply affidavit. 4 Therefore, it is not a case that such stand is taken for the first time before this Court. 5. Insofar as the liability to pay gratuity amount in the sum of Rs.3,86,250/- is concerned, the Respondent company is not disputing the same. The Respondent company however, submits that for recovery of the said amount Petitioner will have to follow the regime stipulated by the Provisions of Payment of Gratuity Act, 1972 and reliance is placed on Section 14 of the Act and Rule 17 to contend that the said provisions will have to be resorted to by the Petitioner. This submission of the Respondent company deserves acceptance. 6. As aforesaid for amount over and above Rs.1,37,210/-, there is serious dispute about correctness of the claim of the Petitioner. In the present proceeding, it is not possible to resolve the said matter. The Petitioner, at best, if so advised, will be free to take recourse to such remedy, as may be permissible in law. 7. In the circumstances, I proceed to pass following conditional order. 5 (a) The Respondent shall deposit amount of Rs.1,37,210/-(Rs.One Lakh Thirty Seven Thousand Two hundred ten only) in this Court within two weeks from today. On such deposit being made the Petitioner will be free to withdraw the said amount forthwith. (b) On deposit of the amount and intimation given to the Company Registrar about such deposit, the Office shall treat the Petition as disposed of. (c) However, if the Respondent fails to deposit that amount within specified time, Office will proceed on the assumption that this Petition has been admitted on the ground that the Respondent is unable to pay its admitted liability. In that case, the Petitioner will be free to advertise admission of the Company Petition in two local newspapers namely Free Press Journal", "Maharashtra Times" and in the Maharashtra Government Gazette. The Petitioner shall deposit an amount of Rs.10,000/- with the Prothonotary & Senior Master towards the publication charges, within three weeks 6 thereafter with intimation to the Company Registrar, failing which the Petition shall stand dismissed for non-prosecution. 8. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)