THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18/10/2011 C O R A M THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Appeal Suit No.150 of 1998 Indian Commerce & Industries Co. Ltd having its registered Office at No.29 Broadway Madras 600 108. ... Appellant/Defendant Vs 1. B.V.S.S.Mani (deceased) 2. B.V.S.S.Lakshmi Mani 3. B.V.S.L.Krishna Kishore 4. B.Bhuvaneshwari 5. B.V.K.Ramalingeswarudu 6. B.Madhavi 7. B.T.Sundari ... Respondents RR2 to 7 brought on record as LRs of the deceased sole respondent vide order dated 12.10.2009 made in CMP.1365 of 2009. Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree in O.S.No.2771 of 1996 dated the 6th August 1997 on the file of VII Additional Judge, City Civil Court, Chennai. For appellants : Mrs.K. Priya for M/s.A.K.Mylsamy For respondents : Mr.G.Ravindra Babu for M/s.King & Patridge for R.R.2 to 7. R.1 died. J U D G M E N T The Appellant/Defendant has filed the present appeal as against the judgment and decree dated 6/8/1997 in O.S.No.2771 of 1996 passed by the learned VII Additional Judge, City Civil Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. PLAINT FACTS:- The Appellant/Defendant, a Company registered under the Companies Act has been managed and administered more in the nature of a partnership concerned. The First Respondent/Plaintiff (Deceased), in his capacity as the first Managing Director and then Director of the Appellant/Defendant Company has contributed extensively to its growth and success. Due to relentless efforts of the First Respondent/Plaintiff, the Appellant/Defendant's company's record was unblemished and its turnover and profit increased by leaps and bounds. 3. The First Respondent/Plaintiff was not re-elected as Director in the Appellant/Defendant company in the meetingss held on 6/4/1981. The First Respondent/Plaintiff (since deceased) during his lifetime, requested the Appellant/Defendant's company to settle all the dues to be paid to him during his tenure as Director and subsequently in the Appellant/Defendant Company. But the Appellant/Defendant Company intentionally withheld the payment due to the First Respondent/Plaintiff, his state of accounts relating to him. 4. The Appellant/Defendant Company sent several reminders to furnish him with the statement of accounts, wrote a letter to the Appellant/Defendant on 10/4/1982, calling upon it to send its statement of accounts or face the consequences. The Appellant/Defendant Company, by its letter dated 26/4/1982, sent the statement of accounts to the First Respondent/Plaintiff. The First Respondent/Plaintiff through its letters dated 29/5/1982, 30/7/1982, 17/2/1983 and 28/3/1983, requested the Appellant/Defendant Company to set right the statement of accounts and pay him his legal and actual dues that he is entitled to towards which due credit would have to be given to his account. According to the First Respondent/Plaintiff, the Appellant/Defendant Company owed him a sum of Rs.2,38,559.76 as on 30/9/1982. But the Appellant/Defendant Company showed that there is a debit balance of Rs.6,805/- due by the First Respondent/Plaintiff to the Appellant/Defendant Company. 5. A sum of Rs.2,38,559.76 due by the Appellant/Defendant Company to the First Respondent/Plaintiff represented his remuneration, sales commission, gratuity and miscellaneous expenses that the plaintiff was entitled to receive, expend and be reimbursed. The First Respondent/Plaintiff was entitled to the gratuity as claimed in the statement of account which was substantiated as per the Board Resolution of the Appellant/Defendant Company dated 3/3/1981. 6. The First Respondent/Plaintiff issued a legal notice to the Appellant/Defendant Company dated 27/12/1983 for which the Appellant/Defendant Company sent a reply dated 24/2/1984 denying his legitimate claims. https://hcservices.ecourts.gov.in/hcservices/ 7. Hence, the First Respondent/Plaintiff, filed a suit for recovery of the principal sum of Rs.2,38,559.76 with interest at 12% p.a., which came to Rs.57,127.92 and thus, in all, the Appellant/Defendant Company, have to pay a sum of Rs.3,35,687.68 with further interest at the rate of 6% p.a., from the date of plaint till the date of realisation. 8. WRITTEN STATEMENT AVERMENTS:- According to the Appellant/Defendant Company, the First Respondent/Plaintiff was the Director of the Company for about 30 years and he was the Managing Director for about 10 years. The first Managing Director of the Appellant/Defendant Company was one C.A.Chettiar and thereafter, the First Respondent/Plaintiff became the Managing Director. The First Respondent/Plaintiff was not re-elected as Director of the Appellant/Defendant Company at the Annual General Meeting of the Company held on 6/4/1981. Whatever the payments were due to the First Respondent/Plaintiff was partly paid to him during his tenure as the Director and whatever, the balance left was adjusted for the payments due from him to the Appellant/Defendant. 9. The Appellant/Defendant company was incorporated as per the Companies Act, 1913 and its Accounts were audited every year and approved by the shareholders in the Annual General Body Meeting. The Appellant/Defendant Company had not fabricated the accounts. Whatever the amounts that were due to the First Respondent/Plaintiff were properly accounted for in the books of the Appellant/Defendant Company. 10. As per the Statement of Accounts filed together with a plaint as on 5/4/1982, the First Respondent/Plaintiff did not take into account the various debits to his accounts amounting to an amount of Rs.13,370.35 upto 30/9/1981 and a sum of Rs.17,575/- pertaining to the period from 1/10/1981 to 30/9/1982. The aforesaid amounts were debited to the First Respondent/Plaintiff's accounts. The First Respondent/Plaintiff as the Managing Director lent large sums of money to one late Mrs.Nagarajalakshmi Ammal, sole proprietrix of M/s.United Industrial and Commercials. The said Mrs.K.Nagarajalakshmi Ammal was the First Respondent/Plaintiff's maternal aunt from whom he had the Power of Attorney to look after the entire affairs of M/s. United Industrial and Commercials. 11. When other Directors of the Appellant/Defendant's Company, questioned the First Respondent/Plaintiff, then he guaranteed the due repayments of the outstanding of K.Nagarajalakshmi Ammal. In spite of repeated reminders, neither the First Respondent/Plaintiff nor Mrs.K.Nagarajalakshmi Ammal repaid the monies due to the Appellant/Defendant. Hence, the Appellant/Defendant filed C.S.No.604 of 1981 on the file of High Court of Madras for recovering the amount of Rs.5,28,066.11 against the said K.Nagarajalakshmi Ammal the First https://hcservices.ecourts.gov.in/hcservices/ Respondent/Plaintiff after giving credits to a sum of Rs.57,127.92 payable by the Appellant/Defendant to the First Respondent/Plaintiff. As per the accounts of the Appellant/Defendant, the First Respondent/Plaintiff still owed a sum of Rs.6,270.10. 12. The First Respondent/Plaintiff as an Officer, drew a salary of more than Rs.1,500/- and hence was not entitled to gratuity as per the Gratuity Act, much less a sum of Rs.1,50,000/-. The appointment of the First Respondent/Plaintiff as a Director and Managing Director of the Appellant/Defendant Company, does not visualise a payment of the gratuity. Therefore, the Appellant/Defendant was not liable to pay any gratuity of the First Respondent/Plaintiff. The First Respondent/Plaintiff did not give credit to the various payments which he withdrew from the Appellant/Defendant. After debiting those payments, he was liable to pay a sum of Rs.6,270.10 to the Appellant/Defendant. 13. The Appellant/Defendant through its counsel, gave a reply dated 22/2/1984 to the First Respondent/Plaintiff's lawyer's notice dated 26/12/1983 mentioning that only a sum of Rs.6,270.10 was due to the First Respondent/Plaintiff and the Appellant/Defendant was not liable to pay any amount. The Appellant/Defendant was not liable to pay a sum of Rs.2,38,559.76 and further, it was not liable to pay any interest. 14. The Appellant/Defendant Company had a counter claim against the First Respondent/Plaintiff amounting to Rs.6,270.10. The aforesaid amount of Rs.6,270.10 was payable with interest at the rate of 18% p.a., from 30/9/1982 till date which came to Rs.8,245.10. Hence, the Appellant/Defendant had prayed for a passing of a decree that against the First Respondent/Plaintiff for a sum of Rs.8,245.10 with interest at 18% p.a., from 17/7/1984 till date with payment together with costs. 15. Before the trial Court in the main suit, 1 to 5 issues were framed for adjudication. On behalf of the First Respondent/Plaintiff, witness P.W.1 was examined and Exs.A.1 to A.27 were marked. On the side of the Appellant/Defendant, witness D.W.1 was examined and Exs.B.1 to B.7 were marked. 16. The trial Court on appreciation of oral and documentary evidence available on record came to the resultant conclusion that the First Respondent/Plaintiff was entitled to claim a sum of Rs.1,57,057/- from the Appellant/Defendant Company together with interest at 12% p.a., from 1/5/1981 together with costs and decreed the suit accordingly. However, the counter claim filed by the Appellant/Defendant Company was dismissed. 17. Being dissatisfied with the judgment and decree of the trial Court in O.S.No.2771 of 1996 dated 6/8/1997, the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Defendant Company had preferred this appeal before this Court. 18. The points that arise for consideration in this appeal are:- (i). Whether the Appellant/Defendant Company is liable to pay the gratuity amount of Rs.1,50,000/- to the First Respondent/Plaintiff (since Deceased)? (ii). Whether the Appellant/Defendant Company has debited a sum of Rs.13,370.35 till 30/9/1981 and a further sum of Rs.17,575/- pertaining to the period from 1/10/1981 to 30/9/1982 into the account of the First Respondent/Plaintiff? 19. THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINT No.(i): The Learned counsel appearing for the Appellant/Defendant submits that the First Respondent/Plaintiff (since Deceased) was not entitled to any sum much less a sum of Rs.1,50,000/- towards gratuity as per the Payment of Gratuity Act, 1972, because of the simple fact that his salary as on 6/4/1981 was more than Rs.2,500/-. 20. It is the further contention of the learned counsel for the Appellant/Defendant Company that as per Section 2 (e) of the Payment of Gratuity Act, as on 6/4/1981, individuals were drawing wages more than Rs.750/- p.m., were not entitled to any amount as gratuity and further, the said amount was increased to Rs.1,600/- p.m., by Act 22 of 1987 only. But these aspects of the matter were not appreciated by the trial Court in a proper perspective. 21. Expatiating his submission, the Learned counsel for the Appellant/Defendant Company submits that as per Section 4 (iii) of the Payment of Gratuity Act, 1972, the maximum amount payable under the Gratuity Act, which was then in force to an employee was only Rs.50,000/- and the trial Court erred in awarding an amount of Rs.1,50,000/- as Gratuity to the First Respondent/Plaintiff. 22. Proceeding further, the Learned counsel for the Appellant/Defendant Company submits that Ex.A.1 Resolution of the Board Meeting dated 3/3/1981 of the Appellant/Defendant Company was applicable to the employees and Directors of the Company as per relevant provisions of the enactments and the contra view taken by the trial Court was an incorrect one. 23. Per contra, the Learned counsel for the respondents 2 to 7 submits that the trial Court placed reliance on Ex.A.1 Board Meeting Resolution dated 3/3/1981 in and by which it was resolved that the provision was to be made in the accounts of the Appellant/Defendant Company as on 30/9/1979 for the contribution towards gratuity fund for the year ended 30/9/1979 both for employees https://hcservices.ecourts.gov.in/hcservices/ and Directors for a sum of Rs.74,995/- and accordingly, came to the right conclusion that the First Respondent/Plaintiff (since Deceased) was entitled to claim gratuity from the Appellant/Defendant Company and therefore, the said finding need not be disturbed by this Court. 24. It is the evidence of P.W.1 (First Respondent/Plaintiff) that he joined the Appellant/Defendant Company as Director from the year 1950 to 1981 and that Adikesavalu Chetti, Srinivasan, K.L.Manohar were the Directors and that Adikesavalu Chetti served as the Managing Director and from the year 1970 to 1976, he served as the Managing Director. He further deposed that he served as the Managing Director from 1976 till 1981 and from March 1981, he was not elected as Managing Director. 25. The evidence of P.W.1 was to the effect that all the Managing Directors viz., Adikesavalu Chetti, Srinivasan were to be paid a monthly sum of Rs.500/- as remuneration/salary, early business commission, bonus and also to be paid the gratuity at the time of retirement. In the General Body Meeting held on 29/9/1976 and 3/3/1989, these were directed to be given as per Resolution and Ex.A.1 is the Board Meeting Resolution dated 3/3/1981 and when he retired in the year 1981, he was not paid the outstanding amount due to him. 26. P.W.1 in his evidence further deposed that Ex.A.2 dated 10/4/1982 was the letter sent by him to the Appellant/Defendant and Ex.A.3 dated 23/4/1982 was the reply furnished by the Appellant/Defendant and along with Ex.A.3 reply letter, the annual statement of Accounts for the year 1980 – 81 was enclosed for which, he sent a reply mentioning that the account details were not proper as per Ex.A.4 for which no reply was sent to the Appellant/Defendant and Ex.A.6 was the letter of reminder dated 30/7/1982. 27. Continuing further, it was the evidence of P.W.1 that Ex.A.12 letter dated 10/5/1983 was sent to the Appellant/Defendant praying for statement of accounts for which reply Ex.A.13 was sent by the Appellant/Defendant and again, he sent a reply dated 13/6/1983 mentioning that account details were not proper which marked as Ex.A.14. The evidence of P.W.1 was that on 23/3/1996, in the General Body Meeting minutes book, it was recorded as that the First Respondent/Plaintiff was to be paid the gratuity and Ex.A.20 notice was issued to the Appellant/Defendant for which Ex.A.21 reply was issued. Again on 13/8/1996, he issued a notice Ex.A.22 and Ex.A.23 is another notice and the reply notice dated 3/9/1996 was Ex.A.24. On 5/9/1996, he sent a copy of the notice Ex.A.25 and Ex.A.26 was another notice dated 1/10/1996 and the reply dated 4/10/1996, Ex.A.27 was furnished by the Appellant/Defendant and that the Appellant/Defendant together with interest was to pay a sum of Rs.3,35,687.68 to him. 28. The evidence of D.W.1 (Director of the Appellant/Defendant Company) was to the effect that he was the https://hcservices.ecourts.gov.in/hcservices/ Director for the past fifty years and that in the Appellant/Defendant Company, the First Respondent/Plaintiff served as the Managing Director for the past ten years and as per Company accounts, no amount was due to be paid to the First Respondent/Plaintiff and that the First Respondent/Plaintiff alone was to pay the amount to them and Ex.B.1 was the business ledger of the Appellant/Defendant relating to the year 1980 – 81, which was audited and in Ex.B.1 ledger, a sum of Rs.17,500/- was given credit to at page No.562 and another sum of Rs.15,583/- was also given credit to and a sum of Rs.77,090 was also credited and further Ex.B.2 was the credit entry for Rs.17,500/- and Ex.B.3 was the credit entry for Rs.15,583/- and Ex.B.4 was the credit entry for Rs.77,090/- and Ex.B.5 was the credit entry for Rs.7,174/- and for the payment of money to Krishnagana sabha, Industrial Herauld, the Appellant/Defendant Company was not liable to pay any amount and that one Sharma had made the credit entry and he left the Company and he knew about his hand writing. 29. P.W.1 also deposed that Ex.B.6 page No.555 was the ledger for the year 1981 – 82 and Ex.B.7 was the credit entry for sales commission of Rs.71,998/-, which was returned by L.K.Sharma whose hand writing he knew and these ledgers were audited and in Ex.A.3, accounts were enclosed and Exs.B.1 and 6 were the enclosures and along with Ex.B.13 two ledger copies were enclosed and as per Ex.A.13, the First Respondent/Plaintiff was to pay a sum of Rs.6,805.30 to the Appellant/Defendant and this amount was claimed in the counter claim and for persons receiving a salary of more than Rs.1,000/-, gratuity was not to be paid and that the First Respondent/Plaintiff was getting a salary of more than Rs.3,000/- and in United Industrial Company, the First Respondent/Plaintiff was the Manager and for recovery of money, the suit was filed against the First Respondent/Plaintiff and aunt, the credit entry was made to an extent of Rs.57,157.92 as the amount due to be paid to the First Respondent/Plaintiff and that the Appellant/Defendant was not liable to pay any amount to the First Respondent/Plaintiff. 30. It is to be noted that the Payment of Gratuity Act, 1972, was enacted to introduce a scheme for payment of gratuity for certain Industrial and Commercial Establishments as a measure of social security. As a matter of fact, the payment of Gratuity Act, aims at achieving uniformity and reasonable degree of certainty and it is a comprehensive code pertaining to gratuity containing detailed provisions covering all the essential features of the scheme as per the decision STATE OF PUNJAB Vs. LABOUR COURT reported in AIR 1979 SC – 1981. 31. Admittedly, Gratuity as a retiral benefit of a very different kind because it is earned by giving service. At this stage, this Court worth recalls the decision of Honourable Supreme Court in MUNICIPAL CORPORATION OF DELHI Vs. DHARAM PRAKASH SHARMA reported in 1999 SC – 293, wherein, it is laid down as follows:- https://hcservices.ecourts.gov.in/hcservices/ “The payment of Gratuity Act being a special provision for payment of gratuity unless there is any provision therein which excludes its applicability to an employee who is otherwise governed by the provisions of the Pension Rules it is not possible for us to hold that the respondent is not entitled to the gratuity under the Payment of Gratuity Act. The only provision which was pointed out is the definition of 'employee' in Section 2 (c) which excludes the employees of the Central Government and State Governments receiving pension and gratuity under the Pension Rules, but not an employee of the MCD. The MCD employee therefore would be entitled to the payment of gratuity under the Payment of Gratuity Act. The mere fact that the gratuity is provided for under the Pension Rules will not disentitle him to get the payment of gratuity under the Payment of Gratuity Act in view of the overriding provisions contained in Section 14 of the Payment of Gratuity Act, the provision for gratuity under Pension Rules will have no effect. Possibly for this reason, Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate government to exempt any establishment from the operation of the provisions of the Act if in its opinion the employees of such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly MCD has not taken any steps in invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises, we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the payment of 'gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of the Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under Pension Rules.” 32. It cannot be gainsaid that Section 14 of the Payment of Gratuity Act, 1972 states that the said Act or the rules framed https://hcservices.ecourts.gov.in/hcservices/ thereunder shall have effect notwithstanding anything inconsistent there with contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than the Payment of Gratuity Act. 33. Sub-Section 5 of Section 4 of the Act, mentions that the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer is not affected. Indeed, the payment of Gratuity Act, 1972, Section 14 enjoins that the Act shall override other enactments to the extent of any inconsistency contained in any other such enactment. 34. No wonder the Payment of Gratuity Act is a Social Welfare Legislation introduced for the purpose of social control and necessitated by social interest. 35. This Court aptly points out the decision DELHI CLOTH AND GENERAL MILLS COMPANY LIMITED Vs. THEIR WORKMEN reported in 1969 2 LLJ – 755, wherein, it is held that “the object of introducing a gratuity scheme is to provide a retiral benefit to workman to have unblemished service to the employer and thereby contributed to the prosperity of the employer. Generally, employees those who are not covered as per Section 2 (e) of the Act, are not eligible for gratuity. 36. In VISHWANATH Vs. M.P.S.R.T CORP AND OTHERS reported in 1987 Vol.55 INDIAN FACTORIES AND LABOUR REPORTS – 1, it is observed as follows:- “It is clear that in many cases sometimes it is not quite easy to distinguish between the supervisory capacity and the managerial or administrative capacity of an employee who at times has to do incidental and additional work in addition to his principal or main duties for which he is employed. There can be no quarrel with the proposition that if the main duties of an employees are only supervisory in nature, then certainly he cannot be excluded from the category of 'employee' nor can be deprived of the benefits of the payment of Gratuity Act, even though for a short period he is required to discharge additional or incidental functions nor can be excluded from getting the gratuity even though at the time of his retirement or resignation he might be drawing salary more than Rs.1,000/- (now https://hcservices.ecourts.gov.in/hcservices/ by amendment it is Rs.1600/-) if it is found proved that for a continuous period of more than five years during his employment the employee was drawing salary less than Rs.1,000/-.” 37. Further in the aforesaid decision at page 2, it is also inter alia observed that “....Therefore, even if some of the nature of duties of the petitioner, as was urged by him were supervisory even though there is no satisfactory evidence to that effect, the administrative powers which the petitioner enjoyed clearly indicate that he was discharging functions in the administrative capacity and, therefore, the contention of the petitioner that he continued to be an employee upto the time of his retirement or at least upto 18.6.1973 on the basis of which he is entitled to the payment of gratuity under the said Act cannot be accepted. It is not the case of the petitioner that only at the time of retirement certain administrative powers and functions were assigned to him so that on that basis he could be deprived of getting the benefit of the provisions of the said Act, even though for a substantial period of service he continued to be employed as an employee as defined under the said Act. On the contrary, according to the petitioner himself though he was initially appointed as Asstt. Accountant, from time to time he was promoted as Assistant Accounts Officer, then Chief Accountant, then Divisional Accounts Officer and lastly as Deputy Chief Accounts Officer and there is nothing on record to indicate what was the main function or nature of duties of the petitioner of these various posts held by him from time to time.” 38. In GODBOLE N.M. Vs. TATA CONSULTING ENGINEERS reported in 1994 III LLJ – 666 (BOMBAY HIGH COURT), it is held that “A person whose wages exceeds the wage limit prescribed under Section 2 (e) before completion of five years service was held not an employee under Section 2 (e) of the Act and therefore, not entitled to any gratuity as per Section 4 of the Act. Gratuity is, in its essence, a payment in consideration of past service, made only at the end of the said service, when the employment terminates. Therefore, the very essence of gratuity is the https://hcservices.ecourts.gov.in/hcservices/ past and not the present. It is for this reason that the definition of the expression “employee” is couched in a language which admits of no periodical limitations.” 39. Whether a person is an employee within the meaning of Section 2 (e) is not a pure question of fact but is a mixed question of law and fact as per decision KHANDERAO P.RAJAPADHYE Vs. UNITED WESERN BANK LTD reported in 1985 1 LLN – 55 (BOMBAY HIGH COURT). An employee cannot claim any benefit of both Pension and Gratuity in the considered opinion of this Court. An individual who ceases to be an employee, as per Section 2 (e) due to his Managerial position drawing salary exceeding the ceiling is entitled to receive better and favourable terms of gratuity under any award, contract or agreement with the employer as per the decision STEEL AUTHORITY OF