Chhotabhai Jethabhai Patel and Company vs Vithoba Raghuji Shende and Others

Z.A. Haq, J.

Heard Shri A.N. Vastani, the learned advocate for the petitioner and Shri M.V. Mohokar, the learned advocate for the respondent No. 1. None appears for the respondents 2 and 3.

The subordinate Authorities have found that the respondent No. 1 is the employee of the petitioner and the petitioner is liable to pay the amount of gratuity as assessed by the Controlling authority, to the respondent No. 1. The challenge on behalf of the petitioner is that the respondent No. 1 was not the employee of the petitioner and the Controlling Authority has committed an error in recording the finding that the respondent No. 1 was the employee of the petitioner, relying on the xerox copies of the documents. It is further urged on behalf of the petitioner that the Controlling Authority has committed an error in considering the issue of delay and the merits of the matter simultaneously.

Shri Vastani, the learned advocate for the petitioner has submitted that the respondent No. 1, according to the respondent No. 1, was in the employment till 15th May, 2001 and the claim for the amount of gratuity is made in 2006 i.e. after about 5 years. It is submitted that the respondent No. 1 had filed the application praying for condonation of delay and the Controlling Authority could not have dealt with the merits of the matter until the delay was condoned. In support of this submission the learned advocate has relied on the judgment of the Madras High Court given in the case of M. Devarajulu Vs. Assistant Commissioner of Labour, Madras and Others--> In this judgment, the Madras High Court has disapproved the practice of simultaneously dealing with the application praying for condonation of delay and the main matter. The submission as made on behalf of the petitioner is based on the established principles of law and there cannot be any dispute regarding it. However, in the facts of the present case, I am not inclined to interfere with the impugned orders in view of this submission. The respondent No. 1 had initially made the claim for the amount of gratuity before the Controlling Authority of the State and this proceeding finally came to end and by the order passed by the Appellate Authority of the State on 12th June, 2006 holding that the respondent No. 1 should have approached the Central Government Authority. The respondent No. 1 approached the Central Government Authority by the application dated 4th August, 2006 i.e. within 2 months of the order passed by the State Appellate Authority. The Controlling Authority has consciously examined the issue and has exercised the discretion in favour of the respondent No. 1 and has condoned the delay considering the factum of earlier round of litigation.

As far as the other objection raised on behalf of the petitioner that the subordinate Authorities have committed an error in relying on the xerox copies of the documents, it has to be noted that enquiry by the Controlling Authority under section 7 of the Payment of Gratuity Act cannot be equated with full fledged trial before a Court.

Shri Mohokar, the learned advocate for the respondent No. 1 has rightly relied on the judgment given by the Hon''ble Supreme Court in the case of Food Corporation of India Workers Union v. Food Corporation of India and another. 1996 (74) FLR 1895 (SC) In paragraph No. 15 of the above mentioned judgment the Hon''ble Supreme Court has recorded as follows:

"15. The judgment of this Court in C.A. No. 1055(NL)/81 is conclusive to show that 464 persons attached to "the list" are workmen of the Corporation entitled to the benefit given by the judgment. The only further question that fell for consideration as a result of the later order of remit in C.A. No. 155/90 was "the identity of the 464 workmen" and not whether they or any of them, had been in employment at the relevant time. On a perusal of the order of the Tribunal we are inclined to hold that the Tribunal wholly misconceived the nature of the orders passed by this Court in C.A. No. 1055(NL)/81 and C.A. No. 105/90 and in conducting a fresh appraisal as to whether all or any of the "464" workmen included in the list were in employment of the Corporation at the relevant time. The approach made by the Tribunal even in the matter of marshalling or considering the material placed before it, seems to be wrong for the following reasons. The Tribunal was apparently of the view, that there should be "evidence" to prove the facts, as per the provisions of the Evidence Act; it is not so. The Tribunal is not a Court. There should be only ''material'' and not evidence as required by the Evidence Act. It appears that a good many witnesses were examined by another members who was the predecessor of the member, who delivered the final award. The Tribunal has stated that the evidence of the petitioner (workman) is not "duly proved", "legally proved", or proved "beyond reasonable doubt". This approach was also wrong. The only question was whether on weighing the probabilities, the materials placed by the petitioner was acceptable or rendered probable. The Tribunal has considered at length the minute particulars in the case, in the light of the requirements of the Evidence Act and has made much of the minor lapses in evaluating the probabilities."

If the present matter is considered according to the dictum of the Hon''ble Supreme Court, it cannot be said that the findings recorded by the subordinate Authorities relying on the xerox copies of the documents filed by the respondent No. 1, are unsustainable.

The respondent No. 1 has produced the xerox copies and has specifically pleaded, relying on these xerox copies that he had been in the employment of the petitioner from 1969 till 2001. To controvert the claim made by the respondent No. 1, the petitioner raised the technical objection that the originals of those documents are not produced. The petitioner further raised the objection that some of the documents are relating to some other firm. Some of the documents relied upon by the respondent No. 1 show the signature of one of the partners of the petitioner, however, the petitioner submitted that same person is partner in other firm also and therefore, the document cannot be relied to prove that the respondent No. 1 was in the employment of the petitioner. Thus the petitioner has only tried to deny the claim as made by the respondent No. 1 without explaining the involvement of the respondent No. 1 with the activities of the petitioner as reflected by these documents.

Shri Vastani, the learned advocate for the petitioner has submitted that the petitioner has produced on the record the muster registers for the period from 1995 till 2001 which shows the names of the employees working with the petitioner and the name of the respondent No. 1 was not found in this muster register. It is submitted that the subordinate authorities have not considered these relevant muster registers and therefore, the findings recorded by the subordinate authorities accepting the relationship of employer and employee, are vitiated. The petitioner has not explained as to why the muster registers of the earlier period are not produced in the enquiry by the Controlling Authority.

Shri Vastani, the learned advocate for the petitioner has relied on the bidi wages payment form of CEEJAY Tobacco Limited Gondia, from 1st August, 1996 till 31st August, 1996 in which the name of the respondent No. 1 appears at serial No. 19 and has submitted that the respondent No. 1 by filing this document before the Controlling Authority has accepted that he was in the employment of the CEEJAY Tobacco Limited, Gondia and therefore, it cannot be said that the respondent No. 1 was the employee of the petitioner. Shri Mohokar, the learned advocate for the respondent No. 1 has submitted that though the document is filed by the respondent No. 1 before the Controlling Authority, it does not show that the payment has been received by the respondent No. 1 and that the document does not bear the signature of the respondent No. 1.

The learned advocate for the petitioner has relied on the application submitted by the respondent No. 1 on 27th August, 2001 to the Aditya Enterprises, Distt. Gondia making claim for the amount of gratuity and has submitted that that this document falsifies the claim of the respondent No. 1 that he had been the employee of the petitioner. The Controlling Authority has examined the material produced before it and has considered the probabilities of the case observing that CEEJAY Tobacco Limited, Gondia, Aditya Enterprises and the petitioner company are the sister concerns. The Controlling Authority having weighed the probabilities considering the material on the record and having recorded the findings of facts, the Appellate Authority could not have taken any other view applying stringent provisions of the Evidence Act. The Appellate Authority has rightly rejected the challenges raised on behalf of the petitioner which were relying on the provisions of the Evidence Act. The challenges as raised on behalf of the petitioner are that the subordinate Authorities have not dealt with the matter in consonance with the provisions of the Evidence Act and without applying the ''standard of proof as required to be applied while adjudicating the lis between two parties. The submission cannot be accepted in view of the proposition of law laid down by the Hon''ble Supreme Court in the case of Food Corporation of India Workers Union v. Food Corporation of India and another, (supra). It is not the case of the petitioner that the findings recorded by the subordinate authorities are not possible applying the test of evaluation of probabilities. In view of the above, I find no reason to interfere with the impugned orders. The writ petition is dismissed. In the circumstances, the parties to bear their own costs.