1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE BEFORE: THE HON’BLE JUSTICE SHAMPA DUTT (PAUL) WPA 801 of 2024 M/s. Bally Jute Company Limited Vs. The Appellate Authority under the Payment of Gratuity Act, 1972, Howrah, Govt. of West Bengal & Ors. For the Petitioner :Mr. Ranjay De, Sr. Adv. Mr. Adityajit Abel Bose, Adv. Mr. Soumalya Karmakar, Adv. For the Respondent No.3 : Ms. Senjuti Sengupta, Adv. Mr. R. Guha Thakurta, Adv. For the Respondent No.5 : Mr. Soumya Majumder, Sr. Adv. Mr. Bhaskar Mukherjee, Adv. Ms. Deblina Banerjee, Adv. Judgment reserved on : 20.08.2026 Judgment delivered on : 25.09.2026 SHAMPA DUTT (PAUL), J.:- 1. The present writ application has been preferred challenging the order dated 14.12.2018 passed by the Controlling Authority, Howrah under the Payment of Gratuity Act, 1972 and the order dated 01.12.2023 passed by the Appellate Authority, Howrah under the Payment of Gratuity Act, 1972. Vide the impugned order dated 14.12.2018 the Controlling Authoirty granted gratuity in favour of workman directed as follows:- 2 “I hereby direct the O.P.Co. i.e., M/s. Bally Jute Mill Co. Ltd. at 5, Sree Charan Sarani Road, P.O.& P.S. Bally, Dist.- Howrah, PIN-711201, in liable to pay Rs.1,45,637.00 (Rupees One Lakh Forty Five Thousand Six Hundred Thirty Seven) only to the applicant Shri Siwpujan Roy of Bally Jute Mill Colony, Line No. 40, Room No. 923, P.O.& P.S. Bally, Dist- Howrah, PIN-711201 towards his due gratuity along with admissible interest within 30 days from the date of receipt of the notice in Form-'R' as provided under Rule 17 of the West Bengal Payment of Gratuity Rules, 1973. Thus the application dated 22.02.2013 in Form 'N' along with all other petitions filed by either of the parties stand disposed of.” 2. The appellate authority vide the impugned order dated 01.12.2023 affirmed the order of Controlling authority on holding as follows:- “The Respondent No. 1 Shri Siwpujan Poy had claimed gratuity from the management of M/s. Bally Jute Mill which was M/s. Bally Jute Co. Ltd. From the evidences, it is clear that onus lies on M/s. Bally Jute Co. Ltd. to pay the gratuity to the Respondent No. 1 Shri Siwpujan Roy as all Funds for this purpose are lying with them and they also confirmed it in the Indenture of Conveyance. So, M/s. Bally Jute Co. Ltd. can't escape in any way from payment of gratuity to the Respondent No. 1 Shri Siwpujan Roy, an Ex-employee M/s. Bally Jute Mill. Hence, the Appellant M/s. Bally Jute Co. Ltd. is clearly liable to pay the gratuity to the Respondent No. 1 Shri Siwpujan Roy and their appeal in this regard is heard and rejected and Order of the Controlling Authority is confirmed. It is also directed that the Controlling Authority will proceed further as per the Act for payment of Gratuity amount (Rs. 1,45,637.00 + admissible interest amount of Rs. 31,458.00 for the period from 18.02.2019 to 20.04.2021) of Rs. 1,77,095.00 (Rupees One Lakh Seventy Seven Thousand Ninety Five) only to Shri Siwpujan Roy (Respondent No. 1).” 3. The parties have filed their respective affidavits. 3 4. The petitioner/M/s. Bally Jute Company Limited’s case in short is that the issue in the present case is, as to who is responsible to pay gratuity to the private respondent. Whether it is the petitioner or the respondent no.5 M/s. Birla Corporation Limited? The petitioner’s case is that it’s the respondent no.5, but the authorities concerned have held otherwise erroneously. Hence the writ application. 5. The petitioner states that the Private Respondent superannuated on 16.01.1996. As per the Deed of Conveyance dated 20.02.2003, the pre-takeover liabilities up to 09.04.1997 lies with the Respondent No. 5 being a vendor and not with the Petitioner Company, being the Purchaser. The Respondent No. 5 discharged its statutory responsibilities in paying Gratuity in connection with the employees who resigned on or before 09.04.1997. The right of the Private Respondent to get the Gratuity on superannuation, crystallized when the Private Respondent retired with the close of working hours of 16.01.1996, when the Respondent No. 5 was the owner of Bally Jute Mills in question. 6. M/S. Birla Jute and Industries Limited, now known as M/S. Birla Corporation Limited, being Respondent No. 5 was the owner of a jute mill in the name and style as "BALLY JUTE MILLS". The Private Respondent was working in Bally Jute Mills, owned by the Respondent No. 5 and he retired from the services of the said Bally Jute Mills with the close of working hours of 16.01.1996. The Petitioner Company by 4 virtue of a Deed of Conveyance dated 20.02.2003 took over the said Bally Jute Mills wherein it has been categorically stated that the Petitioner does not have any responsibility prior to 09.04.1997. 7. The petitioner further states that the appellate authority erroneously did not consider that the private respondent cannot implement in the Union of Bally Jute Mill of respondent no.5 as on 04.09.1997 as he retired on 16.01.1996 by reaching the age of superannuation. It is further stated that the appellate authority did not consider the gratuity register which confirms the statutory liability in respect of the private respondent. The petitioner states that moreover as per the Deed of Conveyance, the petitioner company does not have any liability, financial or statutory or otherwise in connection with the employees of Unit Bally Jute Mills prior to 09.04.1997. 8. The petitioner further states that no document could be produced to show that the respondent no.5 had transferred any gratuity fund in respect of employees of Union Bally Jute Mills who were not in service at the time of transfer as on 09.04.1997. 9. The petitioner has relied upon the following judgments in respect of his contention: i) Rashtriya Mill Mazdoor Sangh v. National Textile Corporation Ltd. & Ors. reported in (1996) 1 SCC 313. ii) Hooghly Mills Company Limited v. State of West Bengal reported in 2023(1) CHN (Cal) 162. 5 10. The respondent no. 5 Birla Corporation has argued that the transfer of the mill took place from Birla Corporation Limited to Bally Jute Company Limited on the basis of an unregistered agreement for sale dated 5th April, 1997 when Bally Jute Company Limited was a partnership firm and on the basis of an indenture of conveyance dated 20th February, 2003. 11. It is further stated that Clause 20 of the Agreement for Sale is a provision for indemnification made for the safeguard of the purchaser, wherein all liabilities up to the effective date of transfer of the mill, including gratuity would be borne by the Vendor and the Vendor shall keep the Purchaser fully indemnified against all claims and compensate the Purchaser which the Purchaser may suffer or be required to pay or incur on account of any of the accounts. If the Deed of Conveyance is slightly different from agreement for sale, Clause (g) does not covenant that the Vendor shall pay gratuity up to 9th April, 1997 to the employees. While discharging the liabilities of employees up to 9th April, 1997, the Deed of Conveyance does not refer to gratuity liability in relation to the employees' dues of the unit, reason being that in the meanwhile, the entire Gratuity Fund lying in separate funds or with LIC pertaining to the employees of Bally Jute Mill were transferred to Bally Jute Company Limited. It is settled that if there is a difference between the agreement for sale and the Deed of Conveyance, the later will always prevail. In any event, the agreement for sale was 6 executed on 5th April, 1997 and the conveyance was executed on 20th February, 2003, that is much later. The conscious absence of gratuity dues up to 9th April, 1997 in clause (g) of the Deed of Conveyance was obviously in alignment with clause (j) of the Deed of Conveyance. 12. Admittedly under clause (j), the Purchaser (Bally Jute Company Ltd.) had admitted to have received the Gratuity Fund lying in separate funds or with LIC pertaining to the employees of Bally Jute Mill. Such a clause was absent in the agreement for sale. The Deed of Conveyance being the controlling document between the parties, namely Bally Jute Company Limited and Birla Corporation Limited; it can be safely contended that the Purchaser (Bally Jute Company Limited) had accepted the Gratuity Funds of the employees who had not been paid their gratuity dues. In the instant case, the N- Form was filed by the employee in 2013 against Bally Jute Company Limited. Thus it was not a pending proceeding covered by clause (i) of the Deed of Conveyance. Like the Gratuity Fund transferred to and received by Bally Jute Company Limited, all documents are also with Bally Jute. The same will appear from disclosure of Gratuity Register made by transferee (Bally Jute Company Limited). The claim application was against Bally Jute Company Limited as an employer and Birla Corporation Limited was never a party to the gratuity proceeding. The only objection raised by Bally Jute Company Limited (petitioner herein) in the written objection before the Controlling Authority are on- 7 (a) delay and (b) non availability of records. Birla Corporation Limited does not join issue on the aspect of delay In any event, Birla Corporation Limited cannot have access to the records after more than two decades and it will severely be prejudiced by reason of alteration of position on account of gross delay and documents having been handed over to the Purchaser. 13. The Controlling Authority passed order in 2018 on considering the service records produced in the proceeding. When the Appellate Authority's order was set aside in the first round of litigation at the behest of Bally Jute Company Limited, the remand was made by this Hon'ble Court vide order dated 20th July, 2022 only on the ground that Bally Jute Company Limited wanted to tender more documents. 14. On remand, the Appellate Authority had relied upon the fact that Bally Jute Company Limited had received Gratuity Funds from the transferor company. The Appellate Authority had called Birla Corporation Limited to attend the hearing, when an application was filed by the Birla Corporation Limited before the Appellate Authority stating that it was the liability of Bally Jute Company Limited and also contended that Bally Jute Company Limited had settled the Provident Fund dues of the employee concerned. This factual position has not been denied by Bally Jute Company Limited. 15. The respondents have relied upon the following judgments:- 8 i) Bank of India & Anr. v. K. Mohandas & Ors. : (2009) 5 SCC 313. ii) Union of India & Ors. v. Tarsem Singh: (2008) 8 SCC 648. iii) Manjul Srivastava v. Government of UP & Ors. : (2008) 8 SCC 652. iv) Himachal Pradesh State Forest Corp. v. Regional Provident Fund Commissioner: (2008) 5 SCC 756. 16. Thus in view of the facts on record that:- i. Under clause (J) of the deed of conveyance, the petitioner as the purchaser has admitted having received the gratuity fund(s) which on the date of transfer was taken over by the petitioner and also included all outstanding amounts (gratuity) along with all relevant documents and records maintained in respect of the said mill/company. ii. The application for gratuity by submitting the N- form by the respondent/workman herein was made in the year 2013, after the date of complete transfer. iii. The respondent no. 5 (vendor) herein was neither a party before the authorities nor was any claim made by the workman before the respondent no. 5 herein. iv. The provident fund dues of the respondent workman has been made by the petitioner herein. 9 v. The total gratuity fund is now with the petitioner herein, along with all relevant documents. It is thus the duty and liability of the petitioner herein to clear the dues of the employees, who were in employment even prior to transfer, on and from, the date of transfer of the funds, documents and the company. 17. Thus this Court finds no grounds for any interference in the impugned order dated 14.12.2018 passed by the Controlling Authority, Howrah under the Payment of Gratuity Act, 1972 and the order dated 01.12.2023 passed by the Appellate Authority, Howrah under the Payment of Gratuity Act, 1972, herein. 18. WPA 801 of 2024 is dismissed. 19. Applications, if any, connected thereto stand disposed of consequently. 20. Interim order, if any, stands vacated. 21. Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Shampa Dutt (Paul), J.)