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PETITIONER: CALCUTTA DOCK LABOUR BOARD AND ANR.

       Vs.

RESPONDENT: SMT. SANDHYA MITRA AND ORS.

DATE OF JUDGMENT11/02/1985

BENCH: MISRA RANGNATH BENCH: 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

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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]

JUDGMENT:       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

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    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.

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     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. 832

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