IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 19.01.2009 Coram The Honourable Mr. Justice K. CHANDRU W.P. Nos.647 to 649 of 2000 The Management, Seyadu Beedi Company, Sindhupundurai, Tirunelveli – 627 001. ... Petitioner in all W.Ps. ..Vs.. 1. The Appellate Authority under Payment of Gratuity Act, Office of the Deputy Commissioner of Labour, Tirunelveli – 627 002. 2. Assistant Commissioner of Labour, (Controlling Authority under the Payment of Gratuity Act), Tirunelveli – 627 002. ... Respondents 1 and 2 in all W.Ps. T. Ulagammal ... 3rd respondent in W.P.No.647/2000 Nallathai ... 3rd respondent in W.P.No.648/2000 Meenakshi ... 3rd respondent in W.P.No.649/2000 Petitions under Article 226 of The Constitution of India, praying to issue a writ of certiorari, to quash the order in P.G.A.Nos.31 of 1997(for WP.647/00), 33 of 1997(for WP.648/00) and 30 of 1997(for WP.649/00) respectively dated 20.1.1998 passed by the first respondent. For Petitioner : Mr. R.S. Ramanathan For Respondents : Ms. Sneha, Government Advocate For R1 and R2 For RR3 No appearance. O R D E R The petitioner, which is the Management of a Beedi Company and owns the trade mark "Seyadu Beedi", aggrieved by the common order passed by the first respondent in P.G. Appeal Nos.31/97, 33/97 and 30/97, have filed the present writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 2. By the impugned order dated 20.1.1998, the Appellate Authority had rejected the appeals filed by the petitioner-Management under the Payment of Gratuity Act, 1972 (hereinafter referred to as "PG Act") and confirmed the order passed by the second respondent- controlling Authority. The contesting respondents were working as beedi workers under one Shahul Hameed, who was originally had a branch at Ambasamudram and subsequently at Brammadesam. He was supplying raw materials such as tobacco, beedi leaves and labels to the contesting 3rd respondents. Since their services were no longer required, they claimed gratuity in respect of the service rendered by them. Therefore, they filed an application before the controlling Authority, who is the second respondent. 3. The Controlling Authority rejected the stand of the petitioner-Management that they are not liable to pay the gratuity and that it was only Shahul Hameed as the supplier of raw materials, was liable to pay the gratuity. Aggrieved by the said order, the petitioner filed appeals under Section 7(7) of the PG Act before the first respondent. 4. During relevant point of time, the first respondent is the Deputy Commissioner of Labour of that area. Subsequently, in respect of Coimbatore and Madurai zones, the Joint Commissioner of Labour was made as the Appellate Authority under the PG Act by the State Government vide G.O.Ms.No.101 Labour and Employment dated 10.7.1997. Therefore, the petitioner claims to be under an impression that instead of the Deputy Commissioner of Labour, the matter will be heard by the Joint Commissioner. On the contrary, the Deputy Commissioner, who is no longer the appellate Authority, passed the impugned order and dismissed the appeals. As against the dismissal of these appeals, the present writ petitions have been filed. 5. Mr. R.S. Ramanathan, learned counsel for the petitioner made two submissions. The order impugned in these writ petitions is passed without jurisdiction inasmuch as the Deputy Commissioner of Labour had passed the order and not the Joint Commissioner of Labour. But, however, a perusal of the Government order, notifying the Joint Commissioner of Labour as appellate Authority, does not show it was made retrospectively or the existing Deputy Commissioner of Labour will have to transfer the pending appeals to the newly designated Authorities. 6. In any event, the Supreme Court, in its decision relating to the case of STATE OF PUNJAB v. LABOUR COURT, JULLUNDUR & others reported in (1981- I L.L.J. 354), dealt with the power of the Labour Court Vis a Vis the PG Act and held that the Gratuity Act is a special law and therefore power under Section 33(C)(2) of the Industrial Disputes Act available to the Labour Court cannot be invoked for the purpose of claiming gratuity. Any aggrieved person will have to move the Authorities under the PG Act, which is self contained Code. After holding so, in paragraph 11, it was held as follows:- https://hcservices.ecourts.gov.in/hcservices/ " 11. At this stage, we put to the learned Solicitor-General, who appeared for the State whether in the special circumstances it was not fair that the entire amount be paid by the appellant to the employees without driving them to a separate proceeding. He has fairly stated that the appellant is willing to do so and the sole object of this litigation was to have the law clarified. We, therefore, direct the appellant to pay to the employee respondents within one month from today the amounts that may be due to them, if they have not already been paid." Further, in this case, the post of Deputy Commissioner of Labour was upgraded into that of Joint Commissioner of Labour in the two cities and hence the notification will have no application to the facts of the present case. Even otherwise, this Court directed the petitioner to advance arguments on the merits of the case, which was accordingly done by the learned counsel for the petitioner. Therefore, the objection regarding lack of jurisdiction need not be gone into in this case. 7. Learned counsel submitted that inasmuch as Shahul Hameed is the supplier of beedi leaves and other raw materials, he should be the employer and the trade mark owner cannot be fastened with such liabilities. Therefore, the order, directing the trade mark owners are liable to pay gratuity, should not be allowed to be on record. 8. In this context, it is necessary to refer the definition of the term "employer" found in The Beedi and Cigar Workers (Conditions of Employment) Act, 1966. Section 2(g) defines "Employer" as follows:- " "employer" means --- (a) in relation to contract labour, the principal employer, and (b) in relation to other labour, the person, who has the ultimate control over the affairs of any establishment or who has, by reason of his advancing money, supplying goods or otherwise, a substantial interest in the control of the affairs of any establishment, and includes any other person to whom the affairs of the establishment are entrusted, whether such other person is called the managing agent, manager, superintendent or by any other name" Before the enactment of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 the beedi owners through paper arrangements were avoiding statutory payments. Therefore the Parliament thought that there should be a special law dealing with Beedi and Cigar Workers and enacted the law. Unlike other enactments, section 2(g) has defined the term "employer" in a wider angle. The purpose of making such definition was to hold that the trade mark owner as the ultimate Authority to pay gratuity and other amounts. When the constitutional validity of the https://hcservices.ecourts.gov.in/hcservices/ provision was also challenged, the Supreme Court has upheld the same vide its decision reported in the case of MANGALORE GANESH BEEDI WORKS AND OTHERS v. UNION OF INDIA AND OTHERS (A.I.R. 1974 SUPREME COURT 1832). 9. When a similar contention was raised before this Court in the decision reported in the case of DHAKSHINAMURTHY, S. v. DEPUTY COMMISSIONER OF LABOUR (APPEALS), APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, CHENNAI AND OTHERS (2003-I-LLJ 32), P.K. MISRA, J., rejected the contention that trade mark owner cannot be held liable. Reliance was placed upon the definition of term "employer" as found in Section 2(g) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and also the decision of the Supreme Court in A.I.R. 1974 SUPREME COURT 1832 (cited supra),. Therefore, the contention of the learned counsel for the petitioner that the trade mark owners is not the employer cannot be countenanced by this Court. 10. Learned Government Pleader also brought to the notice of this Court a communication sent by the first respondent dated 3.4.2000, stating that in the absence of an interim order, the amounts deposited have been paid to the contesting respondents. In the light of the above, the writ petitions are misconceived and the same are dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssa. To 1. The Appellate Authority under Payment of Gratuity Act, Office of the Deputy Commissioner of Labour, Tirunelveli – 627 002. 2. The Assistant Commissioner of Labour, (Controlling Authority under the Payment of Gratuity Act), Tirunelveli – 627 002. + 1 CC to Mr.R.S.Ramanathan, Advocate SR.NO.1618 + 1 CC to Government Pleader,SR.NO.2230 to 2232 W.P. No.647 to 649 of 2000 DM(CO) EM/30.1.09 https://hcservices.ecourts.gov.in/hcservices/