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TMI Blog2004 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... ting and/or commanding the respondent No. 1 to send the said sum of Rs. 3,50,000 along with simple interest at the rate of 10 per cent per annum from 1st June, 1998 till the date of payment being the gratuity of your petitioner to the Controlling Authority after realizing the same from the said company so that the same can be paid to the petitioner forthwith; ( c )Writ in the nature of Mandamus be issued commanding the Controlling Authority to produce and/or furnish the original requisition and/or order and/or records and/or documents before the respondent No. 1 so that the respondent No. 1 can initiate the recovery proceedings against the company forthwith; ( d )Writ in the nature of prohibition commanding the respondent No. 1 from not delaying the matter in initiating the certificate and/or recovery proceedings as against the said company for realizing the said sum of Rs. 3,50,000 along with interest at the rate of 10 per cent per annum from 1-6-1998, till the date of payment being the gratuity of your petitioner as has already been adjudicated by the Controlling Authority as stated hereinbefore; ( e )Writ in the nature of certiorari commanding the respondent No. 1 and/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional mandates to that effect are required to be looked into. Gratuity is payable now under a statutory provision, namely, Payment of Gratuity Act, 1972 (hereinafter referred to as Gratuity Act) for brevity. Under section 14 of the said Act due to incorporation of non obstante clause, gratuity amount cannot be withheld under any circumstances. Section 14 reads thus : "14. Act to override other enactments, etc. The provisions 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." 4. The impact of section 14 has been in depth dealt with in the case of Som Prakash Rekhi v. Union of India 1981 (1) SCC 449 and in the case of R. Kapur v. Director of Inspection (Painting Publication) Income-tax 1994 (6) SCC 589. It is now a settled law now that the Payment of Gratuity Act being a piece of social welfare legislation following constitutional mandate for rendering social and economic justice to the older persons for protecting their interest in the winter days of life after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1997 SC 2027 to oppose this writ application. 7. Hence, it appears that the two " non obstante clauses" in two central legislations, one under the Payment of Gratuity Act, 1972 another under SICA, 1985 being section 14 and section 22 respectively, are allegedly fouling the field of constitutional and statutory obligation to protect the rights of aged persons after retirement from service. Section 22 of the SICA, 1985 reads thus : "22. Suspension of legal proceedings, contracts, etc. (1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond its control", whereby and whereunder social security in the old age has been protected by declaring a right of standard leaving adequate for the health and well being of himself and his family including food, clothing, housing and medical care. Hence, I am of the view that subsequent legislation under section 22 of SICA, 1985 has not placed any embargo so far as the release of gratuity money is concerned as the payments of gratuity though payable under a statutory provision being Payment of Gratuity Act, 1972, but its genesis is constitutional provision being article 21 of the Constitution of India. The constitutional mandates and the human rights concept cannot be made nugatory by any legislation. Hence, the question of effect of subsequent legislation applying "conflicting legislations principle" has no relevancy in the instant case to argue that section 22 of SICA, 1985, has overriding effect over Payment of Gratuity Act, 1972. 10. Gratuity and retirement benefits are the rights being an emanated fundamental right from article 21 of the Constitution of India in view of the wide amplitude of the meaning of the word "Life" as envisaged under article 21 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G. Ganayutham [1997] 7 SCC 463 for the purpose of applicability of the said doctrine in respect of any legislation, which affects the fundamental rights. The statute can be struck down if the restriction is imposed by it are disproportionate or excessive having regard to the purpose of the statute and the Court can go into the question whether there is a proper balancing of fundamental right and the restriction imposed. Reliance may be placed to the judgments passed in the cases of Chintamanrao v. State of Madhya Pradesh AIR 1951 SC 118, State of Madras v. V.G. Row AIR 1952 SC 196 and Indian Express Newspapers, Bombay (P.) Ltd. v. Union of India [1985] 1 SCC 641. Validity of a statutory provision applying the doctrine of proportionality also has been considered by Courts of Australia and Canada as it appears from paragraph 22 of the report of the case of G. Ganayutham ( supra ), which reads thus: "22. McDowell however makes it clear that so far as the validity of a statute is concerned, the same can be judged by applying the principle of proportionality for finding out whether the restrictions imposed by the statute are permissible and within the bounds prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plying the embargo of section 22 of SICA, 1985 considered by holding that payments of wages cannot be resisted in the case of Poysha Industries Co. Ltd. v. Collector 1998 (79) LR 166. Similar is the view of Bombay High Court passed in the case of N.T.C. (South Maharashtra) Ltd. v. B.N. Jalgaonkar 1999 (81) FLR 234. This Court accordingly fortified by those judgments. 14. Having regard to such the question as raised by respondents in the writ application that the recovery proceedings under Bengal Public Demands Recovery Act as initiated for realization of gratuity amount could be resisted by application of section 22 of SICA, 1985, is answered negatively by holding that section 22 of SICA, 1985 cannot resist any proceeding for realisation of gratuity amount payability of which is in the domain of emanated fundamental right of retired employee. Writ application accordingly is allowed in terms of prayers ( a ), ( b ), ( c ) and ( d ). Respondent No. 1 is directed to realise the amount as mentioned in the said prayers along with the interest with effect from the date as allowed by initiating the recovery proceeding and/or certificate proceeding under the concerned Public D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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