CALCUTTA DOCK LABOUR BOARD AND ANR.

SMT. SANDHYA MITRA AND ORS.

February JI, 1985

[P.N. BHAGWATI AND RANGANTH MisRA, JJ.]

Liability to attachment in executioti of a decree of the Court-Whether gratuity payable to a lt orkman employed under the Calcutta Dock Labour Board is attachable for satisfac1ion of a decree of tfle Court-Payment of Gratuity Act 1972, sections 1(3), 2(n) 4, 5, I 3 and 14 read with Rule 2 of the Gratuity Ru/.,, f 972 and sections 6(g), 8 and 60 of the Code of Civil Procedure (Act III of 1908).

Md, Safiur Rehman was a dock worker and gratuity was payable to him under one of the three prevailing schemes of the Calcutta Dock Labour Board.

Respondent No. 1 filed a suit before the Court of .Small Causes at Calcutta asking for recoxery of a sum of money against the widow and son of the said Md. Safiur Rehman ofter his death and prayed for attachment of the gratuity payable to the said workman. The Court made an order and called upon the Board to withhold payment of the amount, whereupon the Board pointed out to Court that gratuity was not liable to attachment. The Chief Judge of the Court of Small Causes examined the objection against attach ment and overruled the same. In appeal by the appellants a Division Bench of the High Court examined the provisions under the Payment of Gratuity Act and the Code of Civil Procedure, and holding (a) clause (g) of section 6 of the Civil Procedure Code does not cover the gratuity payble by the Board to a registered dock worker since subsequent amendment of this clatise have not been adopted and made applicable by the High Court to Presidency Small Causes Court; and (b) Rule 9 of the Gratuity Rules which purports to exempt gr<1.tUiLy from attachment, not having been made by the Central Government on powers delegated by the Parliament under the Dock Workers (R<J!Ulation of Employment) Act, but by the Board on sub-delegation of powers under the scheme cannot override the legal right of the plaintiff, and dismissed the appeal. Hence theappeal by special leave.

AIJowing the appeal, the Court,

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CALCUTTA LAB. BOAl!.D v. s. MITRA (Ranganath Misra, J.) 827

HELD : I. The preamble of the Payment of Gratuity Act, 1972 clearly indicates the legislative intention that the Act sought to provide a scheme for payment of gratuity to all employees engaged in, inter-alia port.~ and under th is Act gratuity was payable to workers like Md. Safiur Rebman. Io view of the provisions in section 1 (3) of the Act gratuity must be taken to be coverdd by section 4 of the Act, in the absence of any notificatiOo contemplated under section 5. Section 14 has also overriding effect and section 13 g ivcs total immunity to gratuity from attachment. The gratuity which was payable to him squarcdy came within the purview of the Act and, therefore, became entitled to immunity under section 18 thereof .

(830D-E]

2. The immunity under section 13 of the Payment of Gratuity Act, itself being adequate the Court applied non-llquet on the two issues~ namely,

(a) consideration of the subsequent event of the amendment of section 13 of the Gratuity Act by Central Act 25 of 1984 with effect from July !st, 1914; and (b) the necessity for remaking of the Calcutta High Court's earlier order under section 8 of the Civil Procedure Code extending the provisions of section 60 of the Cocte to the Small Causes Court consequent to section 97 of the Amending Act of 1976. [830H; 83 lAB]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 34S of 1985.

Appeal by Special leave from the Judgment and Order dated theSth October, 1983 of the Calcutta High Court at Calcutta in Civil Order No. 971 of 1983.

D. N. Mukherjee for the Appellants.

Mahabir Singh for the Respondents.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. Special leave granted.

The short question which falls for decision in this appeal is whether gratuity payable lo a workman employed under the Calcutta

i Dock Labour Board (hereinafter referred to as 'Board') is attachable for satisfaction of a decree of the Court. Md. Safiur Rehman was a dock worker and gratuity was payable to him under one of the three prevailing schemes of the Board. Respondent I filed a suit before the Court of Small Causes at Calcutta asking for recovery of a sum of money against the widow and son of the said Md. Safiur Rehman

after his death and prayed for attachment of the gratuity payable to the said workman. The Court made an order and cal!ed upon the

(1985) :1 S.C.R

Board 'to witllhold paynieht of the amount whereupon the Board pointed out to the Court that gratuity was not liable to aitachiitent.

On receipt of such intimation, the Court, made an order requiring the Board to show cause as to why it may not be proceeded against for disobedience of the Court's direction. The Chief Judge of the Court of small Causes examined the objection against attachment and overruled the same. Against the rejection of he objection the appellants moved the High Court at Calcutta and contended that the gratility payable to the workman was not liable to attachment.

A Division Bench of the High Court examined the tenability of the contention and came to the following conclusion:

"On a careful consideration of the legal position we, however, find that the learned Chief Judge is right in his conclusion. Pfointiff has a legal right to attach any debt payable to his debtor or legal representative. This right, however, is always subject to exceptions made by any statutory provision. Section 13 of the Payment of Gratuity Act no doubt bars attachment but that only is in respect of gratuity payable under that Act. The gratuity now under attachment is payable not under the Act. Section 60 of the C0de of Civil Procedure as amended may bar attachment of gratuity as now under consideration. But that section as it now stands had not been made applicable to Presi dency Small Causes Court. Under Section 8 of the Code, the Hig!t Court adopted certain provisions of the Code including section 60 as amended upto 1965 and made them applicable to Presidency Small Causes Court. Section 6, clause (g) so adopted reads as follows ~

(g). Stipends and gratuities allowed to pensioners of the Government or payable out of any service, family pension fund notified in Official Gazette by the Central Government or the State Government in this behalf and p0litica! pensioners.

'lb.is :ciause'{does not cover the gratuity payable by the Board to a registered dock worker and the subsequent amendment of this clause not having been adopted and mlitle applicable by tho High Court to Presidency Small ca<ases Court, the learned Chief Judge is right in his •tlaioii.

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t'.:ALtUTTA i.Ail. ilOARi> '" s. MITRA (Ri1irja11arh Misra, j,) 82!>

Next reliiince is placed on Rule 9 of the Gratuity Rules which no doubt purports to exempt gratuity from attachment. But these rules not having been made by the Central Government on powers delegated by the Parliament under tlie Dock Workers (Regulation of Employment) Act, but by the Board on sub-delegation of powers under the scheme. the same in our view cannot override the legal right of the plllintiff."

Mr. Mnkherjce appearing for the appellants maintained that the view taken both by the Chief Judge of the Small Causes Court as also the Division Bench of the High Court is contrary to law and, therefore, C'a.nnot be sustained. The respondents had filed an appcarartde ihrough counsel. but no one participated in the hearing.

Section I (3) of the Payment of Gratuity Act ( 39 of 1972) ('Act' for short), provides that the Act shall extend to ports. 'Port' has been defined in s. 2 (n) of the Act. There ca.n be no dispute th\lt tile Cafctltia Pott is covered by the Indian Ports Act, 1908.

It is true that uiltfer one of the three schemes framed by the Calcutta Dock Labour Board gratuity was payable to Md. Safiur Rehl:ri11n, bilt su'c\h gratuity must be taktn to be covered bys. 4 of the Abt, in tlic absetice of any notification contemplated under s. 5.

Seetion 5 atithorises the appropriate Government by notification and sutiject t'o such conditions as may be specified in that noti. fieiltiorl to e:tempt, fiite'r a/ta any port to which the Act applies, from the operation of the provisions of the Act, if in the opinion of the appropriate Government the employees in the port are in rei:el\lt of grauity i>i' pensionary benefit not less favourable than the b\!n'efits conferred under the Act. Neither the Chief Judge nor tliil High Court has found that there has been a notification as coriieittplated under s. 5 of the Act in this case. It had also not been contended at arly stage by the respondents that such a notificatltin had . been 'made.

Referencl: may now be made to ss. 13 and 14 of the Act G wldch are very relevant.

"1.3. Protection of gratufty:-'No gratuity payable under this Act shall be liable to attachment in executfoi:t of any decree or order of any civil, revenue or crimihal court." H'

8~() (1985] 2 s.c.R.

14.

Act to override other enactments, etc:-The provisicns of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."

We may point out that by Central Act No. 25 of 1984 s. 13 has been amended with effect from July I, 1984, and the amended section reads thus :-

"No gratuity payable under this Act and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5 shall be liable to attachment in execurion of any decree or order of any civil, revenue, or criminal court." ·

In the absence of any notification within the meaning of s. 5 of the Act the amendment is not relevant for consideration. Section 14 has overriding effect and s. 13 gives total immunity to gratuity from attachment. The preamble of the Act ~!early indicates the legislative intention that the Act sought to provide a scheme for payment of gratuity to all employees engaged in, inter alia, ports and under this Act gratuity was payable to workers like Md. Safiur Rehman. The gratuity which was payable to him squarely came within the purview of the Act and, therefore, become entitled to immunlty under s. 13 thereof.

In s. 60 of the Code of Civil Procedure provision for exemption from attachment has been made and a detailed list has been provided in subs. (!)thereof in clauses (a) to (p). Clause (g) thereof exempts stipeods and gratuities allowed to pension; rs of the Government or of a local authority or of any other employer from attachment. It may be pointed out that the words "local authority" or "other employer" were inserted into the statute by the amending Act of 1976 with effect from February 1, 1977. The Chief Judge as also the High Court relying on the provisions of section 8 of Co.de took the view that unless extended by the High Court of Calcutta, the protection of s. 60 was not available in regard to proceedings before the Pregidency Small Causes Court at Calcutta. It appears that the Calcutta High Court in exercise of power under .s. 8 of

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CALCUTIA LAB. BOARD v. s. MITRA (Ranganath Misra, J,) 831

the Code had extended the provisions of the s. 60 of the Code but the High Court seems to have wrongly taken the view that the effect of s. 97 of the Amending Act of 1976 was that the notification of the High Court was no more effective unless re-made. It is wholly unnecessary for the disposal of this appeal to examine that aspect as in our view the immunity under s. 13 of the Act is adequate to accept the appeal and find against the respondent. We, therefore. allow the appeal and hold that the Chief Judge as also the High Court were in error in taking the view that gratuity payable to Md.

Safiur Rehman was liable to attachment. Parties are directed to bear their own costs.

S. R.

Appeal allowed.