Calcutta Dock Labour Board & ANR Vs.
Smt. Sandhya Mitra & Ors [1985] INSC 20 (11 February 1985)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
CITATION: 1985 AIR 996 1985 SCR (2) 826 1985
SCC (2) 1 1985 SCALE (1)213
ACT:
Liability to attachment in execution of a
decree of the Court - Whether gratuity payable to a workman employed under the
Calcutta Dock Labour board is attachable for satisfaction of a decree of the
Court - Payment or Gratuity Act 1972, sections 1(3), 2(n) 4, 5, 13 and 14 read
with Rule 2 of the Gratuity Rules, 1972 and sections 6(g), 8 and 60 of the Code
of Civil Procedure (Act 111 of 198).
HEADNOTE:
Md. Safiur Rehman was a dock worker and
gratuity was payable to him under one of the three prevailing schemes of the
Calcutta Dock Labour Board. Respondent No. I filed a suit before, the Court of
Small Causes at Calcutta asking for recovery of a sum of money against the
widow and son of the said Md. Safiur Rehman after his death and prayed for
attachment of the gratuity payable to the said workman. The Court made an order
and called upon the Board to withhold payment of the amount, whereupon the
Board pointed out to Court that gratuity was not liable to attachment. The
Chief Judge of the Court of Small Causes examined the objection against attachment
and overruled the same. In appeal by the appellants a Division Bench of the
High Court examined the provisions under the Payment of Gratuity Act and the
Code of Civil Procedure, and holding (a) clause (g) of section 6 of the Civil
Procedure Code does not cover the gratuity payable by the Board to a registered
dock worker since subsequent amendment of this clause have not been adopted and
made applicable by the High Court to Presidency Small Causes Court; and (b)
Rule 9 of the Gratuity Rules which purports to exempt gratuity from attachment,
not having been made by the Central Government on powers delegated by the
Parliament under the Dock workers (Regulation of Employment) Act, but by the
Board on sub-delegation of Dowers under the scheme cannot override the legal
right of the plaintiff, and dismissed the appeal. Hence the appeal by special
leave.
Allowing the appeal, the Court, 827 ^
HELD: 1. The preamble of the Payment of
Gratuity Act, 1972 clearly indicates the legislative intention that the Act
sought to provide a scheme for payment of gratuity to all employees engaged in,
inter alia port and under this Act gratuity was payable to workers like Md.
Safiur Rehman. In view of The provisions in section I (3) of the Act gratuity
must be taken to be covered by section 4 of the Act, in the absence of any
notification contemplated under section 5.
Section 14 has also overriding effect and
section 13 gives total immunity to gratuity from attachment. The gratuity which
was payable to him squaredy came within the purview of the Act and, therefore,
became entitled to immunity under section 18 thereof.
[830D-E]
2. The immunity under section 13 of the Payment
of Gratuity Act, itself being adequate the Court applied non- liquet on the two
issues, namely, (a) consideration of the subsequent event of the amendment of
section 13 of the Gratuity Act by Central Act 25 of 1984 with effect from July
1st, 1914; and (b) the necessity for remaking of the Calcutta High Court's
earlier order under section 8 of the Civil Procedure Code extending the
provisions of section 60 of the Code to the Small Causes Court consequent to
section 97 of the Amending Act of 1976. [830H; 831A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 345
of 1985.
Appeal by Special leave from the Judgment and
Order dated the 5th October, 1983 of the Calcutta High Court at Calcutta in
Civil Order No. 971 of 1983.
D. N. Mukherjee for the Appellants. Mahabir
Singh for the Respondents. The Judgment of the Court was delivered by RANGANATH
MISRA, J. Special leave granted.
The short question which falls for decision
in this appeal is whether gratuity payable to a workman employed under the
Calcutta Dock Labour Board (hereinafter referred to as 'Board') is attachable
for satisfaction of a decree of the Court. Md. Safiur Rehman was a dock worker
and gratuity was payable to him under one of the three prevailing schemes of
the Board. Respondent l filed a suit before the Court of Small Causes at
Calcutta asking for recovery of a sum of money against the widow and son of the
said Md. Safiur Rehman after his death and prayed for attachment of the
gratuity payable to the said workman. The Court made an order and called upon
the 828 Board to withhold payment of the amount whereupon the Board pointed out
to the Court that gratuity was not liable to attachment On receipt of such
intimation, the Court, made an order requiring the Board to show cause as to
why it may not be proceeded against for disobedience of the Court's direction.
The Chief Judge of the Court of small Causes examined the objection against
attachment and overruled the same. Against the rejection of the Objection the
appellants moved the High Court at Calcutta and contended that the gratuity
payable to the workman was not liable to attachment. A Division Bench of the
High Court examined the tenability of the contention and came to the following
conclusion:
"On a careful consideration of the legal
position we, however, find that the learned Chief Judge is right in his
conclusion. Plaintiff has a legal right to attach any debt payable to his
debtor or legal representative. This right, however, is always subject to
exceptions made by any statutory provision. Section 13 of the Payment of
Gratuity Act no doubt bars attachment but that only is in respect of gratuity
payable under that Act. The gratuity now under attachment is payable not under
the Act. Section 60 of the Code of Civil Procedure as amended may bar attachment
of gratuity as now under consideration. But that section as it now stands had
not been made applicable to Presidency Small Causes Court. Under Section 8 of
the Code, the High Court adopted certain provisions of the Code including
section 60 as amended upto 1965 and made them applicable to Presidency Small
Causes Court. Section 6, clause (g) so adopted reads as follows ' T (g).
Stipends and gratuities allowed to pensioners of the Government or payable out
of any service, family pension fund notified in Official Gazette by the Central
Government or the State Government in this behalf and political pensioners.
This clause does not cover the gratuity
payable by the Board to a registered dock worker and the subsequent amendment
of this clause not having been adopted and made applicable by the High Court to
Presidency Small Causes Court, the learned Chief Judge is right in his
conclusion.
829 T Next reliance is placed on Rule 9 of
the Gratuity A Rules which no doubt purports to exempt gratuity from attachment.
But these rules not having been made by the Central Government on powers
delegated by the Parliament under the Dock Workers (Regulation of Employment)
Act, but by the Board on sub-delegation of powers under the scheme.
the same in our view cannot override the
legal right of the plaintiff." Mr. Mukherjee appearing for the appellants
maintained that the view taken both by the Chief Judge of the Small Causes
Court as also the Division Bench of the High Court is contrary to law and,
therefore, cannot be sustained. The respondents had filed an appearance through
counsel but no one participated in the hearing.
Section I (3) of the Payment of Gratuity Act
(39 of 1972) ('Act' for short), provides that the Act shall extend to ports.
'Port' has been defined in s. 2 (n) of the Act.
There can be no dispute that the Calcutta
Port is covered by the Indian Ports Act, 1908. It is true that under one of the
three schemes framed by the Calcutta Dock Labour Board gratuity was payable to
Md. Safiur Rehman, but such gratuity must be taken to be covered by s. 4 of the
Act, in the absence of any notification contemplated under s. 5. Section S
authorises the appropriate Government by notification and subject to such
conditions as may be specified in that notification to exempt, inter alia any
port to which the Act applies, from the operation of the provisions of the Act,
if in the opinion of the appropriate Government tile employees in the port are
in receipt of gratuity or pensionary benefit not less favourable than the
benefits conferred under the Act. Neither the Chief Judge nor the High Court
has found that there has been a notification as contemplated under s. 5 of the
Act in this case. It had also not been contended at any stage by the
respondents that such a notification had been made.
Reference may now be made to ss. 13 and 14 of
the Act which ale very relevant.
"13. Protection of gratuity :- No
gratuity payable under this Act shall be liable to attachment in execution of
any decree or order of any civil, revenue or criminal court." 830
14. Act to override other enactments.
etc.:-The provisions of this Act or any rule made thereunder shall have effect
notwithstanding anything inconsistent there with contained in any having effect
by virtue of any enactment other than this Act." We may point out that by
Central Act No. 25 of 1984 s.
13 has been amended with effect from July 1,
1984, and the amended section reads thus:- "No gratuity payable under this
Act and no gratuity payable to an employee employed in any establishment,
factory, mine, oilfield, plantation, port, railway company or shop exempted
under section 5 shall be liable to attachment in execution of any decree or
order of any civil, revenue, or criminal court." In the absence of any
notification within the meaning of s. 5 of the Act the amendment is not
relevant for consideration Section 14 has overriding effect and s. 13 gives
total immunity to gratuity from attachment. The preamble of the Act clearly
indicates the legislative intention that the Act sought to provide a scheme for
payment of gratuity to all employees engaged in, inter alia, ports and under
this Act gratuity was payable to workers like Md Safiur Rehman. The gratuity
which was payable to him squarely came within the purview of the Act and,
therefore, become entitled to immunity under s. 13 thereof.
In s. 60 of the Code of Civil Procedure
provision for exemption from attachment has been made and a detailed list has
been provided in sub-s. (1) thereof in clauses (a) to (p). Clause (g) there of
exempts stipends and gratuities allowed to pensioners of the Government or of a
local authority or of any other employer from attachment. It may be pointed out
that the words "local authority" or "other employer" were
inserted into the statute by the amending Act of 1976 with effect from February 1, 1977. The Chief Judge as also the High Court relying on the provisions of
section 8 of Code took the view that unless extended by the High Court of
Calcutta, the protection of s. 60 was not available in regard to proceedings
before the Presidency Small Causes Court at Calcutta. It appears that the
Calcutta High Court in exercise of power under s. 8 of 831 the Code had
extended the provisions of the s. 60 of the Code but the High Court seems to
have wrongly taken the view that the effect of s. 97 of the Amending Act of
1976 was that the notification of the High Court was no more effective unless
re-made. It is wholly unnecessary for the disposal of this appeal to examine
that aspect as in our view the immunity under s. 13 of the Act is adequate to
accept the appeal and find against the respondent. We, therefore. allow the
appeal and hold that the Chief Judge as also the High Court were in error in
taking the view that gratuity payable to Md. Safiur Rehman was liable to
attachment. Parties are directed to bear their own costs.
S. R. Appeal allowed.
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