The Akola Electric Supply Co. v. J. N. Jarare & Ors.

DA~ GUPTA J.-This appeal by special leave is against an award of the Industrial Court at Nagpur under s. 38 (a) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 dated April 2!J, 1961. By an earlier award dated December 4, I 959, the Industrial Court ordered the payrrrnt of gratuity to the employees of the appe­ llant C:ompany on certain rates. The award was·to romc into force from December 4, 1959. On an application by the Company under Art. 22i of the Consritution, the Nagpur High Court set aside the Industrial Court's order and remanded the matter for rrconsideration of the question after examining the financial condition of the Company. After remand the Industrial Court took evidence of both parties as ·regards the financial condition of the Company and came to the conclusion that the Company was in a very sound financial position and could easily bear the burden of payment of gratuity to the ext~nt of Rs. 50,000/- or even more. l\ccord­ ingly, the Industrial Court n~ade a fresh awar'.! directing the payment of gratuity to the Company s employees at the rate of 1 month's average wag~ the average wage to be calculated for the · period December l, 1958 to November 30, 1959 to cv~ry 2 s.c.R. SUPREME COURT REPORTS 515 employee who had to his credit uninterrupted con­ tinuous service of not Jess than five years on termina· tion of his service, except by dismissal on account of misconduct. The award was directed to come into force from April 29, l 9uL . The ·Appellant Company was a licensee for supplying electric energy to the public within the area approximating to the Municipal limits of Akola. The license expired on December 6, 1959. Prior to this the State Electricity Board had by a notice dated November 27, I 957, intimated its in­ tention to exercise its option to purchase the under­ taking on the· expiry of the license. It was after this notice had been served and it was known that the Company would be closing its business on December 6, 1959, 'that the claim for gratuity in respect of which the Industrial Court has made its award, was first made. Indeed, the very application for referring this and other disputes for arbitration contained the frank statement that it was in view of the impending closure of business that the claim for gratuity was being made. It is interesting to notice that the earlier award by the Industrial Court was made only two days before the Company's license expired and the business was taken over by the Bombay Electricity Board. The award now under appeal was made more than a year after the Company had closed its business. The main contention urged before us in support of the appeal is that the Tribunal was not justified in imposing on the Company a gratuity scheme at a time when it had already ceased to carry on its business. It is argued that gratuity schemes are planned on a long term basis, the ruling principle being to make the employer to pay retiral benefits to such of its employees as retire from year to year. The framing of a gratuity scheme when an industry is. on the verge of closure or after it hits closed is, i\ IH.J Ak1l1 El1etric Su;;I) c.. ' v. J. N. lcrcre v., c.;11 1 . 1963 Ako/4 I::ltclric Supply Co. •• J. N. Jr..rar1 is urged, wholly unjustified. In our opinion, tltere is considerable force in this contention. It has been laid down by this Court that the ~tatutory provision for payment of retrenchment compensation is no bar to the framing of a gratuity scheme. The question was fully considered by this Court in Indian Hume Pipe Co. v. Its Workmen ('), where this Court pointed out that while gratuity is intended to help workmen after retirement to what· ever cause the retirement may be due to, retrench· ment compensation is intended to give relief for the sudden and unexpected termination of employment by giving partial protection t..> the retrenched person and his familv to enable them to tide over the hard period of unc,mployment. It has also been held by this Court in the Bluiratkhrmd 1'extile Mfg. Co. Ltd. v. 1'e;dile /,'lbour A sson. ('), that the existence ofa Provident Fund Scheme is also no bar to the provmon of further retiral benefit by way of gratuity scheme. Learnrd Counsel for the respondent seems to think that t hcse cases somehow supported his contcntio·1 that the fact that an industry is going to close or lias actually closed is no bar to a framing of gratuit)' scheme for its employees. \Ve are unable to sec however anything in these decisions of this Court to assist such a plea. In neither of these cases nor in any other case that we know of had this Court to consider the question of a gratuity scheme in an industry which is going to close in the near future or has already been closed. Indeed, we know of no case in which an Industrial Tribunal has ever framed a gratuity scheme for an industry which was not expected to carry on or has ceased to carrv on its business. In all the cases tha1 have come u~fore Industrial Tribunal or this Cour gratuity schemes asked for or allowed have been in industries which were expected to carry on fora (IJ (1960) 2 8.0.R. 32. (2) [t960) 3 S.C.R. 529. ~ s.C.R. SUPREME COURt REPORTS 517 fairly long time. One of the important factors which requires consideration in deciding on the propriety of a scheme of gratuity is the ability of the industry to bear the additional financial burr!en and in deciding this question it has been repeatedly pointed out, the burden from year to year has to be considered afier taking into account the average number of retirements likely to take place in a year. Thus in the Bha.ratkhand Textile Jlfg. case (1), this Court in discussing the consi­ derations that arise in such matters, said:- " ...... there can be no doubt that before framing a Scheme for gr.atuity industrial adjudication has to take into account several relevant facts; the financial condition of the employer, his profit-making capacity, the profits earned by him in the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme .............. . ............ It appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would not be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the emyloyer. In evolving a long-term scheme a long-term view has to be taken of the employer's financial condition and it is on such a basis alone that the question as to whether a scheme should be framed or not must be decided ............ ". These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. (1) (1960] S 8,C ,R, 329 1963 .4.k6la Efrcirit Su_;~ly Co. v. J, JI. Jarare Dss upts J. ,,,, "'''° E/1elric Sup;ly Co. ... /, N.Jarart D., GuPI• J. 518 StJPREME COURT REPORTS [1964] VOL. It has to be noticed that the provision for gratuity scheme is not based on any statutory enactment, but has been evolved bv industrial adjudication as a step to achieve social 'justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked to bear .. The position 1s materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will be "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant ofretrenchment compensa· tion, in additio11 to. what is provided for in the statute. 'Ne cari find no justification for this in the principles of social j usticc. \Ve have therefore come to the conclusion that the Industrial Court acted wrongly in directin!! any gratuity to. be paid by the Company to its emyloyecs. \Ve accordingly allow the appeal, and set aside the award made by the Industrial Court. There will be no order as to costs. Appeal allowed.