JUDGEMENT

          Complainant by filing this complaint has submitted that he was an employee of the op the Statesman Ltd., and served as a typist in Personnel Department having employee code No.E000395 and from the service, he retired on 27.02.2005 after serving office of the op for 37 years.

          Complainant by filing this complaint has raised allegations that according to the rules followed by the office, complainant was entitled to Rs.1,82,457/- as gratuity as on the date of retirement (on 27.02.2005) and ops were liable to pay the same within the period of one month from the date of retirement.  But in stead of paying the full amount the ops made the payment in several installments over a period of six years and the sum of which amounted to Rs.1,33,832/- and said amount was paid from 10.12.2005 to 07.04.2011by installments.

          Complainant submitted that after 07.04.2011 complainant visited the office of the op on several occasions and repeatedly requested them to release the remaining gratuity amount along with interest for delayed payment and payment in installments but the op simply ignored and made no further payments and ultimately under the instruction of the complainant’s Ld. Lawyer issued a notice to the op to release the rest of dues in favour of the complainant with interest but op refused to act on the same and for gross violation of law and also for negligent and deficient manner of service for non-payment of the balance gratuity amount and also payment of gratuity amount by 13 installments without any interest and also for non-payment of balance gratuity amount of Rs.48,625/-  out of the total gratuity amount including interest and also unethical act on the part of the office/establishment complainant’s employer, complainant has prayed for release of balance gratuity amount of Rs.48,625/- and also interest over the same since 27.02.2005 to till date including compensation for harassment and agony etc.

          On the other hand op by filing written statement submitted on 14.06.2013 that complainant is not a consumer as per provision of C.P. Act 1986 and further submitted that op never rendered any service as it is a service contract and an employee cannot be a consumer under any provision of law and further it was submitted that from the letter dated 09.12.2005 it is evident that the complainant has agreed to receive his gratuity by installments and thereafter no objection has been raised by the complainant against the said part payment, but on the other hand the complainant has received all the payments and thus his right to challenge the same is already lost and so, complainant is now stopped to file this complaint.

          Further it was submitted that if there was any grievance of the complainant, complainant ought to have filed such complaint before op’s authority or the statutory competent authority but nothing was filed by the complainant.  Further it was submitted that the complaint is barred by limitation and as because he retired from the service on 27.02.2005 and so the right to challenge the same expired long back in the year 2007 and so no cause of action arose and for the above reasons this complaint is vexatious and at the same time this Forum has no jurisdiction to decide the same but it shall be decided by the competent authority as per payment of Gratuity Act 1972 and Rules.

                                                Decision with reasons

          After hearing the Ld. Lawyer of the op we find that the particular challenge of the op is that this complaint is not maintainable in view of the provision of payment of Gratuity Act 1972 and as per payment of Gratuity Act 1972, all the disputes between the employer and employee, in respect of gratuity shall be decided by Labour Commissioner or the Authority appointed by the Government in respect of particular establishment and the present claim of the complainant in respect of the part non-payment of gratuity, so it shall be decided by the Labour Commissioner or the Authority as specified in the payment of Gratuity Act 1972.

          On the other hand complainant submitted that in so many judgements National Commission and State Commission have decided that (Provident Fund and Gratuity amount) in respect of non-payment of any provident fund and gratuity amount of the retired employees by the employer are entertain able by the Consumer Forum on the ground of deficient of service and accordingly the reported decision I (2008) CPJ 219 NC already decided that any dispute related to provident fund and gratuity amount or non-payment or part payment, shall be decided by the Forum as they are consumer and for deficiency of service same is tenable before the Consumer Forum.

          Moreover considering the judgement of State Commission of West Bengal passed in FA 266/2009 and FA 08/400, it is found that complaint of such a nature is maintainable under Consumer Protection Act 1986 for a claim of gratuity and further the State Commission by another judgement in FA Case No.118/2010 dated 18.06.2010 decided that any dispute related non-payment of provident fund regarding gratuity is maintainable in the eye of law before Forum.  So considering that fact including those authority we are convinced that op was legally bound to pay entire gratuity amount of the complainant long back on 27.02.2005 i.e. on the date of his retirement and at best as per provision of law it ought to have been paid by 27^th March, 2005 but in place of that op paid such payment from 10.12.2005 to 07.04.2011in part but it is no doubt a heinous act on the part of the employer. 

          Truth is that on the date of retirement of the complainant from the op’s establishment, the op did not supply the statement of account in respect of his total gratuity amount as on 27.02.2005.  Not only that up to date op has not submitted any such paper before this Forum to substantiate what was the actual gratuity amount as on the date of retirement of the complainant on 27.02.2005.  But their claim is that they have already paid time to time by installment due to their financial stringency.  Now question is whether the op/employer is honest and they have actually followed the provision of payment of Gratuity Act 1972.

          In this regard we have gone through the provision of 8 of the Recovery of the Gratuity wherefrom it is found that the amount of interest payable under the section in respect of gratuity amount is mandatory and no interest exceeds the amount of gratuity payable under this act but it is mandatory on the part of the employer who must have some controlling authority who shall have to maintain the gratuity affairs who shall have to issue a certificate under this section and give the employer to reasonable opportunity and after expiry on one month from the date of such certificate it must be paid by the employer and also interest and there is a verdict of the Allahabad High Court reported in (1991) ICLR 1216 from which we have gathered that an employee is entitled to get interest on the gratuity amount unless the gratuity is paid within one month, it is becoming due and the interest shall be calculated till the date of actual payment.

          Further it is specifically mentioned that employer cannot travel beyond what is provided in the act and in this regard and considering that fact and the present conduct, it is found that this op authority has been harassing the complainant since his retirement on 27.02.2005 and fact remains op/authority to deceive the ex-employee from gratuity interest, gratuity amount has been paid time to time paying meager amount and by that way they have paid Rs.1,33,832/- with the period of 10.12.2005 to 07.04.2011.  But most interesting factor is that the op /authority did not issue certificate in respect of his entitlement of actual gratuity and most interesting factor is that they engaged Ld. Lawyer who appeared and submitted argument but he is unwilling to answer or produce any document in support of assessment of gratuity amount in respect of complainant and this is the conduct of the op and that is swallowed by the defence lawyer and defence lawyer tried to say that it is not maintainable.

          But fact remains that an employee is being tortured mentally and physically, harassed mentally physically by the employer the Statesman Ltd.  He has been violating the statutory provision of payment of Gratuity Act 1972 and their act is nothing but to torture retired persons but none is here and there to save them.  But in this regard the op’s controlling authority is also acting against Labour Laws, payment of Gratuity Act 1972 or Provident Fund Rules etc.  They are squeezing money against hard labour of the employees but they are not giving their dues as per law and considering such sort of activities of the establishment towards their labourer and employees Hon’ble Supreme Court came to a conclusion that the law court cannot be mute spectator in the matter of denial of the reliefs who are legally entitled either the employees or their heirs or nominees and in this regard we have relied upon ruling reported in AIR 1990 page-883 and other referred ruling.

          Fact remains for the purpose of denial of gratuity amount, the employer takes wages @ 1.2 days wages for one day absence and same is also applicable when calculation days of wages for the purpose of gratuity but peculiar factor is that it is undisputed that this complainant joined in the service on 02.10.1967 and he retired from the service on 27.02.2005 and in such a way he worked for 37 years and calculating that wages it is clear that complainant was entitled to a sum of Rs.1,82,457/- as gratuity on the date of his retirement i.e. on 27.02.2005 and it ought to have been paid finally to the complainant on 27.03.2005 as per mandatory provision of the payment of Gratuity Act 1972 and it is also mandatory as per provision that if it is not paid within one month that 8% interest shall be assessed over the same since the date of non-payment and till full payment and relying upon such provision and the ruling as referred we are confirmed that complainant is entitled to interest over the same from 27.03.2005 and till today and truth is that balance amount of Rs.48,625/- has not yet been paid since 27.02.2005 and in the mean time 14 years had already expired and so considering that fact we are convinced to hold that the amount if it would be paid on the particular date as per provision of law of gratuity and if the complainant used to fix it in any Fixed Deposit scheme, the amount of Rs.48,625/- would be more than Rs.1.50 lakhs. 

          At the same time assessing 8% interest over that amount from 27.03.2005 till to date we have gathered that complainant is entitled to interest over that amount i.e. no doubt more than Rs.75,800/-.  But as per provision of law he is entitled to highest interest i.e. double the gratuity amount.  So, complainant is entitled to interest of Rs.48,625/- and also gratuity amount of Rs.48,625/- and as per provision of Section 8, the amount of interest was in no case exceed the amount of gratuity payable under this act.  So, we find that complainant is entitled to Rs.48,625/- as arrear gratuity and also interest from 27.03.2005 till to date that is no doubt heavy high but we have assessed another Rs.48,625/- and that is assessed as per provision of Section-8 of the Act.  So, complainant is entitled to a sum total of Rs.97,250/- from the op and op is bound to pay it and when they have violated all the rules as per observation of the Hon’ble Supreme Court we have gathered that the statutory mandate of the Supreme Court is obligatory on the part of the op to clear entire gratuity dues within one month from the date of retirement of the employee and in this case Statesman Ltd. has violated all the rules as there are Labour Commissioner, Labour Department, Labour Inspector but in their presence they are violating the statutory laws creating pressure upon the employees to sign agreement to get gratuity by installment.  But that cannot be done and another factor is that on the date of retirement or within one month from the date of retirement of the employee, he must have to submit the details dues of gratuity of an employee but that is not followed and considering that fact the op/The Statesman Ltd. is found violator of all the Labour laws and they are oppressing upon the labourers (employees) in so many manners though government employees are here and there but they are purchased what we have gathered from this case though employer cannot withhold the gratuity by any means and such an act is violation of the not only Labour Laws but also the act of negligent and deficient manner of service and as per provision of Section-4 of the Payment of Gratuity Act 1972, there is a mandate of the statute that gratuity is to be paid to the employee on his retirement or to his dependents in the event of his early death and further fact is that in the private companies as per legislation employer take such amount from the daily wages and deposited the same in the gratuity heads of the employee but in this case no insurance as per provision of Section-4A was taken by the op as yet and for which op is not registered as per Gratuity Act 1972.

          So, it is clear that in the private companies or in the undertaking government employer has not been paying money from his own pocket, but deducted amount for gratuity fund from the employee’s monthly salary which is being accumulated and that is kept as per provision of this Act by the employer then it is the duty of the employer to refund this amount with such interest forthwith.

          But fact remains that the Ld. Lawyer for the op submitted that there is financial stringency if there is any stringency sell the business and pay the labourers’ dues.  So, considering all the above fact, we have gathered that the trade practice of the op is unfair.  They have violated the Labour laws and all laws and another factor is that they are dishonest establishment, in view of the fact they did not supply the certificate regarding gratuity dues of the complainant/employee on 27.02.2005 and it is their such sort of mal-practice or dishonest administrative affairs.

          So, considering that fact we have gathered that no doubt complainant is being harassed by the op for long years and the present complaint is not barred by limitation in view of the fact that the op lastly part paid a sum of Rs.10,832.10 Paisa on 07.04.2011 whereas this complaint was filed on 21.12.2012 then we are convinced that it is within time.

          Most interesting factor is that written version was filed by the op but their purpose is to dismiss the complaint by showing some technicalities but they are not willing to pay the actual dues of the complainant in respect of his legal demand of gratuity amount and it has become a practice of the private limited companies anyhow to create complication and to make the complaint barred by limitation and that is their business.  So, that they can avoid the payment and the present op has no faith over the legal system but they are telling about honesty, integrity, evaluating of government the authority’s performance etc. because they are newspaper.

          Truth is that they are printing so many honest view, they are placing the grievance of the people in the daily newspaper, they are telling about dishonest the Ministers and other higher authorities but question is whether by publication of the same by the present op/establishment they are proving they are honest but truth is that and no doubt the Statesman is a very widely circulated publication and a vanguard of the people.  But we have gathered that the said daily newspaper has been violating all provisions to run the said establishment and truth is that the Statesman Ltd. is a dishonest establishment and have been practicising fraud in different manner and they have squeezed huge money from the labourers (employees) and are not distributing the same when that is fact then we feel that the dishonest business man the Statesman Ltd has no legal authority to criticize other because before criticizing other one must be clean and in respect of their establishment.  So, at first, the Statesman Ltd must have to publish after receiving the judgement that they are dishonest and they are squeezing the money of the labourer in the first page.

          Whatever it may be after proper evaluation of the entire materials, the provision of law, principal of law as laid down in the payment of Gratuity Act and also other judgement we are confirmed that this complaint is maintainable and this Forum has jurisdiction and it is decided with such observation in favour of the complainant considering the ops’ mal-practice as adopted as employer and also their deficiency and negligent manner of service to the employee/labourers and at the same time their immoral act of squeezing gratuity money of the labourers in such a manner by showing LTI to the Labour Department and other Department and same are being followed by different establishment and considering the above situation Hon’ble Supreme Court ultimately observed in their ruling Ref :literate Daily Wage -Vs- State of Karnataka in AIR 1990 SC 883 that Courts cannot be mute spectator in the matter of denial of the reliefs legally entitled by the employees or nominees in absence on the death of employees, his heirs or nominees and in the above back drop we are convinced to hold that there is sufficient ground to allow this complaint with exemplary cost.

          Thus the complaint succeeds.

          Hence, it is

                                                        ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

          The ops are directed to pay the balance amount of gratuity Rs.48,625/- to the complainant and also composite interest over the same from 27.02.2005 till todate that is another of Rs.48,625/-, so op shall have to pay a sum of Rs.97,250/- in total at once and within 15 days from the date of this order failing which for each day’s delay over the said amount a penal interest @ Rs.300/- shall be assessed till full satisfaction of the same and penal interest shall be paid to this Forum.

          For adopting unfair trade practice and for harassing the complainant since 27.02.2005 till to date observing the said total gratuity amount and for adopting unfair path and for violating the mandatory rules of payment of Gratuity Act 1972 and also for harassing the complainant in such a manner for last 14 years, op shall have to pay punitive damages of Rs.50,000/- out of which Rs.25,000/- shall be paid to the complainant and balance of Rs.25,000/- shall be deposited to this Forum to control the present establishment op from depriving the labourers after their retirement and to give effect of their all dues and wages.

Ops are hereby directed to comply the order within 15 days from the date of this order failing which penal action shall be started against them for violating the order of this Forum and also for reluctant attitude to give effect to the present complainant in respect of their satisfaction to the decree in time and even due penal proceeding they may be prosecuted and may be sent to jail.