IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.34968, 34969, 34970 and 40322 to 40325/2006 and M.P.No.2 in W.P.Nos.40322 to 40325/2006 W.P.No.34968/2006 The Commissioner, Coimbatore City Municipal Corporation, Big Bazaar Street, Coimbatore-641 001. ... Petitioner in all WPs Vs 1. The Appellate Authority under the Payment of Gratuity Act, Joint Commissioner of Labour, Coimbatore-18. 2. The Controlling Authority under the Payment of Gratuity Act, Assistant Commissioner of Labour, Coimbatore-18. ...Respondent 1 & 2 in all Wps. 3. N.Rangasamy S/o.Nanjan ...3rd Respondents in W.P.NO.34968/2006 4.A.Mylathal W/o.Arumugam ...3rd Respondents in W.P.NO.34969/2006 3.Nachimuth S/o.Kuppan ...3rd Respondents in W.P.NO.34970/2006 3.Saminathan S/o.Chinna Kannu ...3rd Respondents in W.P.NO.40322/2006 3.Rangammal W/o.Arumugam ...3rd Respondents in W.P.NO.40323/2006 3.Nagarajan S/o.Masani ...3rd Respondents in W.P.NO.40324/2006 3.Jayanthi D/o.Chinna Rangan ...3rd Respondents in W.P.NO.40325/2006 https://hcservices.ecourts.gov.in/hcservices/ Writ Petition under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent pertaining to his proceedings in A.G.A. Case No.5/2006, 8/2006, 9/2006, 6/2006, 11/2006 10/2006 7/2006 and that of the 2nd respondent pertaining to his proceedings in G.A.No.329/2004, 334/04, 335/04, 330/04, 337/04, 336/04, 332/04 and quash the common orders dated 15.5.2006 and 14.6.2005 respectively and consequently, direct the 1st respondent to refund the amount deposited in the credit of G.A.No.329 of 2004, 334/04, 335/04, 330/04, 337/04, 336/04, 332/04. For Petitioner : Mr.R.Sivakumar For Respondents : Mr.G.Murali, 1 and 2 Government Advocate For 3rd respondent : No appearance C O M M O N O R D E R The petitioners in all these Writ Petitions are the Coimbatore City Municipal Corporation represented by its Commissioner. Aggrieved by the order passed by the authorities, namely, the 1st and the 2nd respondent, under the Payment of Gratuity Act, the Writ Petitions came to be filed. Pending the Writ Petitions, notice of motion was ordered and pending the notice of motion, stay was granted. 2. The short question that arises for consideration in these Writ Petitions is whether the order passed by the authorities below is legally valid. The contesting 3rd respondent in W.P.No.34968/2006 after serving a Statutory Notice, and subsequently after the retirement had availed the benefit of Death- cum-Retirement Gratuity (DCRG) and thereafter stated their claim under the Payment of Gratuity Act, 1972. 3. The 2nd respondent Appellate Authority rejected the objection made by the Petitioner Corporation on the ground that so long as there is no exemption under the Payment of Gratuity Act, and that too in terms of Section 5 of the Act, they cannot deny gratuity only on the basis that the petitioners were getting pension and DCRG which is a separate terminal benefit. 4. The authority by a common order dated 14.6.2005 held that in view of the every right given under Section 14 of the Act and in the light of the judgment made by this Court in Commissioner of Mettupalayam Municipality and Assistant Commissioner of Labour, Coimbatore and others reported in 2002 (ii) MLJ 937 computed the gratuity. Thereafter, the petitioner Corporation filed appeals under Section 7(7) before the 1st respondent Appellate Authority. 5. In the meanwhile, the State Government issued an order in G.O.Ms.No.113, Labour and Employment Department, dated 15.7.2005 https://hcservices.ecourts.gov.in/hcservices/ and granted an exemption from the application of Payment of Gratuity Act with effect from 1.7.1973. The order also stated that such a exemption will be subject to the condition that the settled cases should not be reopened. 6. When that exemption order was produced before the Appellate Authority, he rejected the objection on the ground that the said order of exemption was challenged by a Trade Unions to which the contesting respondents belonged in W.P.No.24835/2005 and have obtained stay. Therefore, in the light of the interim stay granted by this Court, he will not take note of the said exemption order. Thereafter, he did not have any difficulty in confirming the order passed by the 2nd respondent Appellate Authority. Challenging the common order made by the 1st respondent dated 13.5.2006, these Writ Petitions came to be filed. 7. Mr.R.Sivakumar, learned Counsel appearing for the petitioners brought to the notice of this Court that subsequent to the filing of these Writ Petitions, the Corporation had moved this Court with a Vacate Stay Petition. By an order dated 19.7.2006, this Court had vacated the interim stay. Therefore, the Government Order in G.O.Ms.No.113, Labour and Employment, dated 15.7.2005 is very much in operation and once there was a retrospective exemption, the maintainability of the petitions filed by the 3rd respondent will be doubtful. The order passed by the 2nd respondent has kept alive by filing appeals. The Appellate Authority did not take note of the exemption Government Order on the ground that it was subject to an interim stay. Since the stay had also been vacated, the order of the authorities challenged in these Writ Petitions are liable to be set aside. 8. However, the Counsel for the contesting respondent, namely, the 3rd respondent stated that before this Court, while admitting the stay order, the Corporation had agreed to comply with the claim of 22 members who were similarly placed and therefore, the petitioners case stand in the same footing and therefore even in respect of these workmen, the Government Order should be interpreted to mean that their cases also will come under the category of settled cases. 9. Controverting the said argument, the learned Counsel for the Petitioner Corporation of Coimbatore pointed out that the undertaking given by the Corporation before this Court was in relation to 22 members for whom appeals also became final and only their Writ Petitions were pending. It was at that stage, the Government Order came into force. Therefore giving respect to the Government Order, it was accepted, that the exemption Order will not apply to the settled cases. 10. But in the present case, the Corporation has filed appeals before the Appellate Authority and he did not take note of the exemption Government Order. Therefore, the case of the present contesting respondents will stand on a different footing. https://hcservices.ecourts.gov.in/hcservices/ 11. In the light of the above, this Court is inclined to pass the following Order: It is no doubt true that the State Government by Government Order in G.O.Ms.No.113, Labour and Employment Department, dated 15.7.2005 has granted exemption with retrospective effect with a rider that the settled cases should not be reopened. But the Appellate Authority in the present case bypassed the exemption Order only because there was a stay order granted by this Court. Now that the stay order had also been vacated, there is no impediment for the Appellate Authority to rely upon the Government Order to nullify the order passed by the 2nd respondent. 12. Since the main Writ Petition challenging the Government Order is pending in W.P.No.24835/2005 before this Court, it is suffice that if the contesting respondents are assured that in case they succeed in the Writ Petition in quashing the Government Order, exempting the petitioner Corporation from the payment of gratuity, then they will also be eligible to get the payment as ordered by the 2nd respondent and confirmed by the 1st respondent. 13. Only on the ground that the W.P.No.24835/2005 was still pending, these Writ Petitions need not be kept pending. Therefore, these Writ Petitions stand allowed. The orders of the authorities will stand set aside. It is with a condition that as and when G.O.Ms.No.113, Labour and Employment Department dated 15.7.2005 is nullified by this Court, then the contesting respondents are also eligible to get the payment as ordered by the Controlling Authority. No costs. Consequently, connected Miscellaneous Petitions are closed. 14. Since these Writ Petitions are allowed with a direction, the amount already in deposit with the 2nd respondent can be with drawn by the petitioner Corporation subject to the condition that in case the contesting respondents succeed in their attempt to nullify the exemption Order, then the Corporation without driving the petitioners to another Forums will pay the amount as ordered by this Court in para 13 above. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsi https://hcservices.ecourts.gov.in/hcservices/ To 1. The Joint Commissioner of Labour, Appellate Authority under the Payment of Gratuity Act, Coimbatore-18. 2. The Assistant Commissioner of Labour, The Controlling Authority under the Payment of Gratuity Act, Coimbatore-18. 3.The Commissioner, Coimbatore City Municipal Corporation, Big Bazaar Street, Coimbatore-641 001. 1 cc To Mr.R.Sivakumar, Advocate, SR.8221 1 cc To Mr.K.Surendranath, Advocate, SR.8142 1 cc To The Government Pleader, SR.7823 W.P.Nos.34968, 34969, 34970 and 40322 to 40325/2006. ck(co) pmk.15.2.2011 https://hcservices.ecourts.gov.in/hcservices/