IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.07.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.16358 of 2011 & M.P.No.1 of 2011 1 D.S.KUMAR 2 S.MARICHAMY 3 M.SANKARAN 4 R.KANNAN 5 R.BASKARAN 6 A.A.WAHID ALI 7 K.SIDHA SHAIK MADAR 8 M.MAHALINGAM 9 A.BALU 10 G.AVUDIYAPPAN 11 J.SAMUVEL SELVA RATHINAM 12 N.M.SHAUL HAMEAD 13 K.SUBRAMIANIAN 14 A.KESAVAMOORTHY 15 H.ABUBAKKER 16 K.SUNDARAM 17 S.MEERAN MYTHEEN 18 A.PALANIYANDI 19 P.SHANMUGHAM 20 P.MUTHUVALLI 21 P.RATHNAVEL 22 S.NEELA 23 A.ARUMUGA NAINAR 24 S.SUBRAMANIAN 25 T.GANAPATHY 26 K.JOTHI PANDIAN 27 S.PITCHIAH 28 S.CHIDAMBARANATHAN 29 A.C.MUTHU 30 L.ASHOK KUMAR 31 G.CHIDAMBARANATHAN 32 A.SUBRAMANIA SHARMA 33 C.MURUGESAN 34 MUTHUKRISHNAN 35 R.KANTHASWAMY 36 P.M.KUMAR 37 V. S.CHANDRAN 38 M. MARIMUTHU 39 M. PANDIYARAJAN https://hcservices.ecourts.gov.in/hcservices/ 40 M. SUBBIAH 41 K. KARUNANITHI 42 V. JEYABAL 43 V. DURAI VENKATARAMAN 44 R. GUNASEKARAN 45 L. ABDUL RAONISTAR 46 S. KUMARARAJ 47 M. KARUNANANDAM 48 M. GNANAPRAKASAM 49 K. RENGARAJ 50 M. SEENI MOHAMED 51 M.THAJUDEEN 52 S.KRISHNAMOORTHY 53 P.ANANTHAKRISHNAN 54 A.SAKTHIVELU [ PETITIONERS ] Vs 1 THE MANAGING DIRECTOR TAMILNADU CIVIL SUPPLIES CORPORATION LIMITED NO.12 KILPAUK CHENNAI 10 [ RESPONDENT ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the impugned circular RC No. AGR2/55813/10 dated 26.8.10 by a circular No.73/2010 and quash the same and direct the respondent to issue the benefit as amended to the payment of Gratuity Act, 1972. For Petitioner :: Mr.N.R.Chandran, senior Advocate for Mr.R.Kannan For Respondent :: Mr.V.Subbiah, Spl.G.P. O R D E R The petitioners are employees of the respondent Tamil Nadu Civil Supplies Corporation. In this Writ Petition, they have come forward to challenge the circular issued by the respondent dated 26.8.10, wherein and by which the respondent Civil Supplies Corporation informed all their subordinates about the fact that the Payment of Gratuity Act, 1972 was amended by Central Act 15 of 2010 with effect from 17.5.2010. The ceiling of gratuity fixed under Section 4(3) was enhanced to Rupees Ten Lakhs with effect from 24.5.2010. Therefore, the respondent Board also resolved to give effect to the said https://hcservices.ecourts.gov.in/hcservices/ amendment. The petitioners have all admittedly retired from service before April 2010. In this Writ Petition by seeking to challenge the circular, they want the benefit of the amendment being given effect to by considering their cases also. Such a Writ Petition can never be maintainable. 2. It is no doubt true that the Payment of Gratuity Act has been amended by Central Act 15 of 2010. In the Amendment Act itself, Section 1(2) gave power to the delegate, i.e.,the Government of India to notify the date on which the Central Government consider it desirable to bring the Section into force. It is pursuant to such delegation of power, the Central Government issued a Notification by a Statutory Order S.O.No.1217(E), Ministry of Labour and Employment, dated 24.5.2010 fixing the date of coming into operation of the amendment i.e. 24.5.2010. The said statutory notification has been published in the Gazette of India Extraordinary dated 24.5.2010. Therefore, when a notification brings into an amendment which prescribes the date "24.5.2010" and when the respondent by a Circular notified the change in legal position, by merely challenging the said circular, the petitioner cannot get any relief. Even though the amendment can have retroactive effect, i.e.,that it applies to persons, who retires on or after 24.5.2010, the said Circular cannot have any retrospective effect. 3. The contingencies on which the gratuity have to be paid is set out under Section 4 of the Payment of Gratuity Act. It is only when such contingency takes place, the gratuity has to be calculated on the basis of last drawn wages earned by an employee. Therefore, the date on which the employee retires, dies or resign is the date by which the rate of gratuity has to be calculated. 4. While considering the "appointed day" by which the liability to pay gratuity will be passed on to a 'transferee' employee came to be considered by the Supreme Court in Central Coalfields Ltd., vs. Union of India and others, reported in 1998 (9) SCC 192. In para 4 of the judgment, it was observed as follows: "The question of payment of gratuity, etc., which becomes due only at the end of the service, in respect of workmen who were continuing in service even after the appointed day, arose subsequent to the appointed day and is, therefore, not a prior liability for which the Central Government or the Government company would not be liable because of Section 9 of the Act.: https://hcservices.ecourts.gov.in/hcservices/ 5. Therefore, the challenge made to the impugned circular is misconceived. Accordingly the writ petition stands dismissed. No costs. The connected Miscellaneous Petition is closed. Sd/- Deputy Registrar /True Copy/ Sub.Asst.Registrar ajr To 1 THE MANAGING DIRECTOR TAMILNADU CIVIL SUPPLIES CORPORATION LIMITED NO.12 KILPAUK CHENNAI 10 + 1 cc to Mr.R. Kannan, Sr.40519 + 1 cc to Government Pleader Sr.40983 W.P.No.16358 of 2011 KJ(CO) Eu 21.7.11 https://hcservices.ecourts.gov.in/hcservices/