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Smt. Asha Devi Jauhari Vs. Smt. Sharda Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1978)ILLJ344All
AppellantSmt. Asha Devi Jauhari
RespondentSmt. Sharda Devi and ors.
Excerpt:
..... - or (ii) where the applicant is not the employee to the nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity. sub-clause (ii) provides that where the applicant is not the employee then the nominee or the heir of the employee is to be paid the amount of the deposit if the controlling authority it satisfied that 'there is no dispute as to the right of the applicant to receive the amount of gratuity. if it is satisfied that there is no dispute as to the right to receive the amount of gratuity it shall pay the amount to the applicant. on the other hand, if it is satisfied that there is a dispute it has no further jurisdiction to resolve that dispute by making an adjudication..........gratuity the said power cannot be conferred by rules. consequently if rule 12 purports to confer jurisdiction on the controlling authority to decide even any dispute in regard to the right of the applicant to the amount of gratuity if such right is disputed and a counter-claim is made, the said rule to that extent would be ultra vires.11. in the result i find no merit in this revision. it is accordingly dismissed with costs.
Judgment:

N.D. Ojha, J.

1. One Krishna Prasad Jauhari was an employee in the State Bank of Bikaner, He died leaving assets including some amount of gratuity payable by the said Bank, His widow Smt. Sharda Devi, opposite party No. 1, made an application for succession certificate in the Court of civil Judge, Bareilly. In this application amongst the assets of the deceased the amount of gratuity was also mentioned. A preliminary objection was raised on behalf of the applicant who is one of the daughters of the deceased asserting that she was the nominee in respect of the gratuity and that the dispute in regard to the gratuity could be decided only by the Controlling Authority under the Payment of Gratuity Act, 1972. In other words the assertion of the applicant was that the civil Court did not have the jurisdiction to go into the question as to whether the opposite party No. 1 was entitled to the amount of gratuity in her capacity of being the widow of the deceased or the applicant was entitled to it as the nominee of the deceased. The preliminary objection did not find favour with the civil Judge and he overruled it. Against that order a revision was filed by the applicant before the District Judge. The revision was heard and dismissed by the 3rd Additional District Judge, Bareilly, on February 17, 1976. Aggrieved the applicant has preferred the present revision.

2. Two submissions were made by counsel for the applicant (1) that the Courts below were wrong in taking the view that the State Bank of Bikaner was not an establishment within the meaning of Payment of Gratuity Act and (2) that the civil Courts did not have the jurisdiction to decide any dispute raised by rival claimants in regard to the right of receiving the amount of gratuity.

3. Having heard counsel for the applicant at some length I am of opinion that it is not necessary to decide the first question as to whether the State Bank, Bikaner is an establishment within the meaning of the Act or not for the decision can be disposed of on the second question It was urged by counsel for the applicant that Sub-section (4) of Section 7 of Payment of Gratuity Act, which Act according to counsel for the applicant, was a self-contained enactment, conferred on the Controlling Authority exclusive jurisdiction to decide even disputes as to the right of a person to receive the amount of gratuity and consequently the jurisdiction of the civil Court was barred. In my opinion there is no substance in this submission. It is true that the heading cannot control the plain meaning of the section but in case of ambiguity assistance can be taken from even the heading. The heading of Section 7 is 'determination of the amount of gratuity.' Sub-section (4) of Section 7 reads:

7. Determination of the amount of gratuity...

(4)(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to reseive the gratuity the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

Explanation.--Where there is a dispute with regard to any matter specified in this clause the employee may make an application to the control-ling authority for taking such action as is specified in Clause (b).

(b) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, deter-mine the amount of gratuity payable to an employee, and if as a result of such inquiry amount in excess of the amount deposited by the employer is found to be payable, the controlling authority shall direct the employer to pay such amount as is in excess of the amount deposited by him.

(c) The controlling authority shall pay the amount deposited including the excess amount, if any, deposited by the employer, to the person entitled thereto.

(d) As soon as may be after a deposit is made under Clause (a), the controlling authority shall pay the amount of the deposit

(i) to the applicant where he is the employee; or

(ii) where the applicant is not the employee to the nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.

On a perusal of the said sub-section it is apparent that if any dispute as contemplated by Clause (a) of Sub-section (4) is raised before the employer, such amount as the employer admits to be payable by him, has to be deposited with the controlling authority. This clause does not deal with the rights of the controlling authority. The Explanation to Clause (a) entitles even the employee to make an application to the controlling authority bringing to his notice that a dispute with regard to any matter specified in that clause exists to enable it to take 'such action as is specified in Clause (b)'. Clause (b) gives the controlling authority the power to decide the dispute in regard to the actual amount of gratuity payable. This clause is completely silent about any power of the controlling authority to decide any dispute in regard to the right of any person who claims the amount of gratuity.

4. Counsel for the applicant in support of his submission that the controlling authority has jurisdiction to decide a dispute between rival claimants about the right of receiving the amount of gratuity placed reliance on Clause (d). A plain reading of that clause, however, makes it clear that no such jurisdiction has been conferred on the controlling authority. Sub-clause (i) of Clause (d) deals with the situation whereas the applicant himself is the employee Here that sub-clause is not applicable because the employee is dead. Sub-clause (ii) provides that where the applicant is not the employee then the nominee or the heir of the employee is to be paid the amount of the deposit if the controlling authority it satisfied that 'there is no dispute as to the right of the applicant to receive the amount of gratuity.' It is thus apparent that Sub-clause (ii) entitles the Controlling Authority only to find out as to whether there is any dispute with regard to the right to receive the amount of gratuity or not. If it is satisfied that there is no dispute as to the right to receive the amount of gratuity it shall pay the amount to the applicant. On the other hand, if it is satisfied that there is a dispute it has no further jurisdiction to resolve that dispute by making an adjudication upon it. The jurisdiction to decide a dispute with regard to the right of the rival claimants and the jurisdiction to be satisfied as to whether there is any dispute with regard to such right are two different concepts. Under Clause (d)(ii) the power that has been given to the controlling authority is to be satisfied as to whether there is a dispute or not but not the power to decide the dispute if it exists. In the instant case a dispute apparently exists. The applicant is claiming the amount of gratuity on the basis of a nomination said to have been made by the deceased in her favour. The case of the widow of the deceased is that the nomination relied upon by the applicant is not genuine. She is claiming the amount as being the heir of the deceased. The dispute with regard to the rights to receive the amount of gratuity is thus apparent. Even if the matter is taken before the controlling authority the said authority could not decide as to whether the applicant is entitled to the gratuity or the opposite party No. 1.

5. It was then urged by counsel for the applicant that the jurisdiction to decide the question as to which of the rival claimants to the amount of gratuity is the person entitled to the said amount is implied in Clause (c) of sub-section (4). As seen above the said sub-clause makes it obligatory on the Controlling Authority to pay the amount deposited, including the excess amount if any, by the employer to the person entitled thereto. In my opinion this sub-clause does not authorise the Controlling Authority to decide as to who is the person entitled to the amount of gratuity, if a dispute between rival claimants is raised in this behalf. Firstly, if it was the intention of the Legislature to confer such a power it would not have been necessary to introduce Clause (d) at all and Clause (b) would have been framed in a different languages, in that contingency in place of the words 'determine the amount of gratuity payable to an employee' the words 'determine the dispute referred to in Clause (a)' should have occurred. The Legislature, however, did not choose employ such a language and restricted the operation Clause (b) only to the determination of the amount of gratuity payable to the employee. Likewise if the intention was to provide separately for each contingency a similar provision such as Clause (b) should have been made for the determination of the dispute in regard to the right of the rival claimants also. The dispute in this behalf is equally if not more important to the dispute about the amount of gratuity payable whereas Clause (b) enjoins upon the Controlling Authority the duty to make inquiry after giving the parties to the dispute a reasonable opportunity of being heard no such duty has been enjoined upon it under Clause (c). The circumstance also leads to the conclusion that by enacting Clause (c) the Legislature never intended to authorise the Controlling Authority to decide a dispute in regard to the rights of rival claimants. To me it appears that Clause (c) only enjoins a duty upon the Controlling Authority to pay the amount deposited including the excess amount, if any, deposited by the employer to the person entitled there to and in order to find out as to who would be the person entitled thereto for purposes of Clause (c) a separate clause being Clause (d) was enacted. In view of sub-clause (i) of Clause (d) if the applicant is the employee himself he would be the person entitled to the payment contemplated by Clause (c). If on the other hand the applicant is not the employee but is either the nominee or the heir of the employee and the Controlling Authority is as contemplated by Clause (d)(ii) satisfied that there is no dispute as to the right of the applicant such nominee or heir of the employee, as the case may be, would be the person entitled to the amount within the meaning of Clause (c). Once, however, a dispute exists in regard to the rights of the rival claimants, the Controlling Authority cannot adjudicate upon the rights of such rival claimants.

6. It is settled law that every dispute of a civil nature is cognizable by a civil Court unless the jurisdiction of the civil Court is either expressly or impliedly barred. Sub-section (4) of Section 7 does not in any way bar the jurisdiction of the civil Court to take cognizance of such a dispute either expressly or impliedly. In this view of the matter the Courts below were right in taking the view which they did.

7. On the aforesaid view even if for the sake of argument it is accepted that the State Bank of Bikaner is an establishment within the meaning of the Act, it will in no way assist the applicant it is for this reason that I am of opinion that it is not necessary to go into that question.

8. Counsel for the applicant next urged that in view of Rule 12 of the Payment of Gratuity Rules, 1972, introduced by notification published in the Gazette of India dated December 20, 1975, the controlling authority would have jurisdiction even to decide the dispute as to the person entitled to receive the gratuity.

Rule 12 reads:

12. Powers of the Controlling Authority--

The Controlling Authority for the purpose of conducting an inquiry as to the amount of gratuity payable to an employee or as the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, shall have the same powers as are vested in a Court, under the Code of Civil Procedure, 1908, in respect of the following matters, namely:

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits; and (d) issuing commissions for the examination of witnesses. (Section 7(5)).

9. The said rule provides that while deciding the disputes referred to thereunder the Controlling Authority shall have the same powers as are vested in a Court, under the Code of Civil Procedure, in respect of the matters specified in the rule. The power to frame rules is contained in Section 15. Sub-section (1) of Section 15 provides:

15. Power to make Rule--(1) The appropriate Government may, by notification, make rules for the purpose of carrying out the pro-visions of this Act..

10. In Chandra Kumar Shah v. District Judge (1976)2 A.I.R. 95, a Full Bench of this Court has held that the rules framed under an enastment can only complement the provisions of the Act. They cannot supplement it. If the Act itself does not confer any power on the Controlling Authority to decide a dispute in regard to the right of a person claiming the gratuity the said power cannot be conferred by rules. Consequently if Rule 12 purports to confer jurisdiction on the Controlling Authority to decide even any dispute in regard to the right of the applicant to the amount of gratuity if such right is disputed and a counter-claim is made, the said rule to that extent would be ultra vires.

11. In the result I find no merit in this revision. It is accordingly dismissed with costs.


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