Smt. Satya Wati Malhotra Vs. the State Warehousing Corporation and anr. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order.orderamarjeet chaudhary, j.1. in this writ petition, smt. satya wati malhotra wife of late shri r.l. malhotra, ex-manager,state warehousing corporation, rohtak, has prayed for quashing the order dated 27.12.1985, copy of which is annexure p-2 to the writ petition, whereby the respondent-corporation had declined the prayer of the petitioner for the release of gratuity in respect of her late husband.2. brief facts of the case are that the husband of the petitioner, shri r.l. malhotra, while working as manager in the respondent-corporation died on 16.12.1982 after rendering near about eighteen years' service. thepetitioner after the death of her husband made representation dated 4.11.1985, copy of which is annexurep-1 to the writ petition, to the respondent authorities for the release of gratuity payable to her husband under the payment of gratuity act, 1972. the said representation was declined vide order dated 27.12.1985 copy of which is annexure p. 2 to the writ petition.3. aggrieved against the aforesaid order, the petitioner has filed the present writ petition. it was contended on behalf of the petitioner that in accordance with the provisions contained in section 2(e) of the payment of gratuity act hereinafter referred to as 'the act'), all those employees who are employed todo any skilled, semi-skilled or us-skilled, manual, supervisory, technical or clerical work, whether the terms ofsuch employment are express or implied and whether or not such person is employed in a managerial or administrative capacity, are entitled to gratuity, according to the learned counsel, the duties performed by the husband of the petitioner while working as manager were supervisory in nature. as such the petitioner is entitled to the payment of gratuity.4. the respondents in their written statement have takes a categoric stand that petitioner was not entitled to the benefit of gratuity as per provisions of section 2(e) of the act existing at the time of death of the petitioner's husband.5. i have considered the submissions of the learned counsel for the parties and perused the file.6. in order to settle the controversy, it is essential to examine the provisions of section 2(e) of the act which were in existence at the time of death of thepetitioner's husband i.e. 16.12.1982. section 2(e) of the act is reproduced as under:-'employee' means any person (other than an apprentice) employed on wages, not exceeding one thousand rupees per mensum in any establishment, factory, mine, oil field, plantation port railway company or shop, to do any skilled, semi-skilled, or, unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, but does not include any such person who is employed in a managerial or administrative capacity, or who holds a civil post under the central govt. or a state government or who is subject to the air force act, 1950 (45 of 1950), the army act, 1950 (46 of 1950) or the navy act, 1957 (62 of 1957).'7. it is clear from the aforesaid revisions of section 2(e) of the act that the same cannot be attracted in the case of an employee performing the functions of a manager and whose emoluments exceed rs. 1,000/- per mensum. the respondents have taken a categoric stand that the husband of the petitioner white working as manager was drawing more than rs. 1,000/- per mensum as salary. as such the claim of the petitioner was rightly turned down by the respondent-corporation. the petitioner has not been able to show that the duties performed by the, husband ofthe petitioner while working as manager were supervisory in nature. on the other hand, it is the categoric stand of the respondents that the petitioner's husband was performing the duties of the manager. the amendment in the aforesaid section 2(e) of the act came into force in the year 1984 i.e. after the death of the petitioner's husband and the same cannot be applied retrospectively8. under the payment of gratuity rules, a person employed in a managerial capacity or holding the civil post under the central government is not entitled to the payment of gratuity as he is not covered under the purview of thedefinition of employee. as stated earlier, the petitioner's husband was discharging the functions of manager. as such the petitioner is not entitled to the release of gratuity.9. for the foregoing reasons, the writ petition is dismissed being devoid of any merit.

Judgment:
ORDER

Amarjeet Chaudhary, J.

1. In this writ petition, Smt. Satya Wati Malhotra wife of late Shri R.L. Malhotra, Ex-Manager,State Warehousing Corporation, Rohtak, has prayed for quashing the order dated 27.12.1985, copy of which is Annexure P-2 to the writ petition, whereby the respondent-Corporation had declined the prayer of the petitioner for the release of gratuity in respect of her late husband.

2. Brief facts of the case are that the husband of the petitioner, Shri R.L. Malhotra, while working as Manager in the respondent-Corporation died on 16.12.1982 after rendering near about eighteen years' service. Thepetitioner after the death of her husband made representation dated 4.11.1985, copy of which is AnnexureP-1 to the writ petition, to the respondent authorities for the release of gratuity payable to her husband under the Payment of Gratuity Act, 1972. The said representation was declined vide order dated 27.12.1985 copy of which is Annexure P. 2 to the writ petition.

3. Aggrieved against the aforesaid order, the petitioner has filed the present writ petition. It was contended on behalf of the petitioner that in accordance with the provisions contained in Section 2(e) of the Payment of Gratuity Act hereinafter referred to as 'the Act'), all those employees who are employed todo any skilled, semi-skilled or us-skilled, manual, supervisory, technical or clerical work, whether the terms ofsuch employment are express or implied and whether or not such person is employed in a managerial or administrative capacity, are entitled to gratuity, According to the learned counsel, the duties performed by the husband of the petitioner while working as Manager were supervisory in nature. As such the petitioner is entitled to the payment of gratuity.

4. The respondents in their written statement have takes a Categoric stand that petitioner was not entitled to the benefit of gratuity as per provisions of Section 2(e) of the Act existing at the time of death of the petitioner's husband.

5. I have considered the submissions of the learned counsel for the parties and perused the file.

6. In order to settle the controversy, it is essential to examine the provisions of Section 2(e) of the Act which were in existence at the time of death of thepetitioner's husband i.e. 16.12.1982. Section 2(e) of the Act is reproduced as under:-

'employee' means any person (other than an apprentice) employed on wages, not exceeding one thousand rupees per mensum in any establishment, factory, mine, oil field, plantation port railway company or shop, to do any skilled, semi-skilled, or, unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, but does not include any such person who is employed in a managerial or administrative capacity, or who holds a civil post under the Central Govt. or a State Government or who is subject to the Air Force Act, 1950 (45 of 1950), the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957).'

7. It is clear from the aforesaid revisions of Section 2(e) of the Act that the same cannot be attracted in the case of an employee performing the functions of a Manager and whose emoluments exceed Rs. 1,000/- per mensum. The respondents have taken a categoric stand that the husband of the petitioner white working as Manager was drawing more than Rs. 1,000/- per mensum as salary. As such the claim of the petitioner was rightly turned down by the respondent-Corporation. The petitioner has not been able to show that the duties performed by the, husband ofthe petitioner while working as Manager were supervisory in nature. On the other hand, it is the categoric stand of the respondents that the petitioner's husband was performing the duties of the Manager. The amendment in the aforesaid Section 2(e) of the Act came into force in the year 1984 i.e. after the death of the petitioner's husband and the same cannot be applied retrospectively

8. Under the Payment of Gratuity Rules, a person employed in a managerial capacity or holding the civil post under the Central Government is not entitled to the payment of Gratuity as he is not covered under the purview of thedefinition of employee. As stated earlier, the petitioner's husband was discharging the functions of Manager. As such the petitioner is not entitled to the release of Gratuity.

9. For the foregoing reasons, the writ petition is dismissed being devoid of any merit.