Jayalakshmi vs Deputy Labour Commissioner and Appellate Authority

B. Veerappa, J.—The unfortunate widow of the Workman filed the present Writ Petition for a Writ of Certiorari, to quash the Order, dated 28.2.2012 made in DLC No.1/PGA/CR-53/2009-10 passed by the 1st Respondent vide Annexure ''G'' and issue a Writ of Mandamus directing the 3rd Respondent to pay difference of Gratuity amount as quantified by the 2nd Respondent/Controlling Authority in Case No.ALCB-2/PGA/CR-77/2007-2008 dated 5.2.2009 vide Annexure-C in the Writ Petition.

It is the case of the Petitioner that her husband Late Puttaswamy who joined the services of the 3rd Respondent/Corporation in the year 1982, as a Driver and had worked continuously, sincerely and honestly to the satisfaction of the superiors. On certain charges of misconduct, the husband of the Petitioner came to be dismissed from the services in the year 1999. The said Dismissal Order was the subject matter of the dispute before the Labour Court in I.D. No.70/1999. The Labour Court after adjudication of the matter by its Award in the year 2004 has directed the 3rd Respondent to reinstate the Workman with all consequential benefits. However, he died on 25.8.2004.

It is the further case of the Petitioner that after the death of her husband, the Corporation did not pay any terminal benefits, more particularly, the Gratuity amount. Therefore, she was constrained to file an Application before 2nd Respondent/Controlling Authority seeking payment of Gratuity amount. The Petitioner has sought for payment of Gratuity amount totalling to Rs. 1,93,555 for the 35 years of service rendered by her husband and produced material documents in support of her claim. The 3rd Respondent filed Objections to the said Application and examined one N.M. Puttaraju, EST Supervisor and produced seven documents. After considering the documents available on record, the 2nd Respondent/Controlling Authority proceeded to pass an Order on 5.2.2009 directing the 3rd Respondent to pay difference amount of Rs. 80,636 along with Interest at 10% on the said amount.

Aggrieved by the said Order of the Controlling Authority, the 3rd Respondent filed Appeal before the 1st Respondent in the Appeal No.DLC-1/PGA/CR.No.53/2009-2010. After hearing, the Appellate Authority by its Order, dated 28.2.2012 has dismissed the Appeal. Thereafter, the 1st Respondent without giving an opportunity to the Petitioner, by pre-dated Order on 28.2.2012, had passed another Order thereby allowing the Appeal in part, modifying the Order of the Controlling Authority and directed the 3rd Respondent to pay Rs. 10,874 with 10% Interest on the said amount. Therefore, the Petitioner is before this Court for the relief sought for.

The 3rd Respondent has not filed any objections in the present Petition. Very curiously, the State Government has filed Objections in the present Writ Petition stating that the Order, dated 28.2.2012 has to be taken into account as informed by the 1st Respondent to the 2nd Respondent after obtaining clarification from the 1st Respondent. The Petitioner instead of questioning the Order, dated 28.2.2012 passed by the Labour Commissioner, Bangalore has approached this Court challenging the said Order. It is also contended that after a thorough detailed verification of the documents, 1st Respondent has passed the Order. Therefore, the Order, passed by the Respondent Nos. 1 & 2 are in accordance with law.

I have heard the learned Counsel for the parties to the lis.

Sri K. Srinivas, learned Counsel for the Petitioner vehemently contended that it is not in dispute that the Workman has served for more than 35 years as a Driver and he was entitled for a sum of Rs. 1,80,114, but the Corporation has paid only a sum of Rs. 1,08,014. Therefore, the 2nd Respondent/Controlling Authority was justified in determining the difference Gratuity amount of Rs. 80,636 with 10% Interest. He further contended that the 1st Respondent/Appellate Authority while dismissing the Appeal filed by the 3rd Respondent as per Annexure ''F'' dated 28.2.2012 made in Appeal No.DLC-1/PGA/CR-53/2009-10, passed another Order on the same day on the same number reiterating all the reasons/verbatim of the previous Order and modified the subsequent Order on the same day only changing three lines of the operative portion of the order holding that the 3rd Respondent is liable to pay only Rs. 10,874 with 10% Interest which is erroneous, contrary to the facts and circumstances of the present case.

He further contended that when the Appellate Authority had dismissed the Appeal and passed the 2nd Order without Notice, without hearing and without recalling the earlier Order which is erroneous is totally arbitrary, one sided and illegal. The Labour Commissioner has acted beyond his power. He further contended that in view of the two Orders passed by the Appellate Authority on the same day, in one order he has not looked into Ex.R1 & R2, whereas in another Order of the same date, he has looked into Ex. R1 & R2 and he modified the said Order. Because of the erroneous, illegal order passed by the 1st Respondent, unnecessarily the Petitioner is before this Court who is a widow, it is nothing but totally abusing the power of the Appellate Authority. Therefore, he sought to allow the Writ Petition by setting aside the Annexure ''G''.

Per contra, Smt. H.R. Renuka, learned Counsel for the 3rd Respondent fairly submits that she is not in a position to support both the Orders passed by the Appellate Authority. She further contended that the 3rd Respondent has paid a sum of Rs. 51,291 at the time of dismissal and on two occasions, a sum of Rs. 18,471 and a sum of Rs. 1,08,014 (in all Rs. 1,80,116) paid as per Ex. R-1, R-2 & R-5. The said material documents has not been considered by the Authorities.

Sri Munigangappa, learned HCGP for the Respondent Nos. 1 & 2 sought to justify the impugned Order and contended that the 1st Respondent-Authority was justified in passing two Orders on the same day and contended that the Petitioner has not challenged the Order, dated 28.2.2012 passed by the Labour Court, on verification of the documents, the impugned Order has been passed. Therefore, he sought for dismissal of the Writ Petition.

In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration in this Petition is:

"Whether the Appellate Authority is justified in passing two Orders on the same day one dismissing the Appeal and one allowing the Appeal in part in the facts and circumstances of the present case".

I have given my anxious consideration to the submission made by the learned Counsel for the parties and perused the material on Record.

It is not in dispute that the husband of the Petitioner Sri Puttaswamy was appointed as a driver of 3rd Respondent in the year 1982 and it is also not in dispute, on certain charges he came to be dismissed from the service in the year 1999. It is also undisputed fact that the Dismissal Order was subject matter of adjudication in I.D. No.70/1999 and the Labour Court has set aside the Dismissal Order in the year 2004 and directed the 3rd Respondent to reinstate the Workman with all consequential benefits. It is an admitted fact that in the meanwhile, the Workman/Driver - husband of the Petitioner died on 25.8.2004. It is the case of the Petitioner that the 3rd Respondent has paid only a sum of Rs. 1,08,014 towards Gratuity amount. Therefore, she was constrained to file Application before the 2nd Respondent/Controlling Authority and the 2nd Respondent considering the entire material on Record as per Annexure ''C'' dated 5.2.2009 determined that the difference of Gratuity amount of Rs. 80,636 with 10% Interest payable by the 3rd Respondent to the Petitioner.

It is also a fact that being aggrieved by the said Order, the 3rd Respondent filed an Appeal before the 1st Respondent in Appeal No.DLC-1/PGA/CR-53/2009-10. The 1st Respondent, after considering the entire material on Record passed an Order, dated 28.2.2012 dismissing the Appeal. It is also not in dispute the very Appellate Authority on the same day in respect of the same Appeal Number has passed another Order modifying the Order of the Controlling Authority and directed the 3rd Respondent to pay the difference amount of ? 10,874 with 10% Interest on the said amount.

On careful perusal of the two Orders passed by the Appellate Authority as per Annexure ''F'' & ''G'' on the same day, it is clear that the reasons and contents of the Annexure ''F'' has been repeated in its entirety/verbatim, but last three lines of the operative portion was changed in Annexure ''G'' which is under challenge. It clearly indicates that the Appellate Authority without application of mind has proceeded to pass two Orders on the same day in the absence of any Application filed by the 3rd Respondent or in the absence of the Review Petition filed. It is unknown in the Quasi-Judicial proceedings, how the Appellate Authority has passed two Orders on the same day is not forthcoming and it is not substantiated by the learned Counsel for the 1st Respondent. The way in which the Statement of Objection filed clearly indicates that there is totally no application of mind on the part of the 1st Respondent-Appellate Authority while passing two orders on the same day, is nothing but abusing the power of Deputy Labour Commissioner/Appellate Authority. The conduct of the Appellate Authority is nothing but harassing the litigant who come to the Court with great expectation. The Order passed by the Appellate Authority is nothing but hanging sword both on the Petitioner as well as the 3rd Respondent and there is no clarity either in the statement of objection or in the submission made by the learned HCGP for the 1st and 2nd Respondent.

The attitude of the Appellate Authority is unnecessarily creating frivolous litigations thereby creating the pendency of the proceedings before this Court. It is nothing but abusing the process of law and interference of administration of judicial system. The Officers while discharging their duties as Appellate Authority under the provisions of Section 7(7) of the Payment of Gratuity Act, 1972 has to decide the Appeal only in accordance with law. Admittedly as could be seen from Annexures ''G'' & ''F'' clearly depicts that he has no respect to the law or life of the citizens. The way in which, he passed two Orders clearly indicates that he was very negligent while exercising his power as an Appellate Authority. It is high time for the State Government to take proper action against the erring Appellate Authorities in order to do justice to the needy litigants who approach the Court with great expectation. The Annexure ''J'' produced along with Writ Petition, wherein subsequently Appellate Authority clarified that only the 2nd Order on the basis of the Memo filed by the 3rd Respondent has to be considered. This is also without application of mind and contrary to law.

The Order passed by the Appellate Authority is in utter violation of Principles of Natural Justice without Notice or without application of mind which is contrary to the material on record which cannot be sustained.

Because of the mistake committed by the Appellate Authority by passing two Orders confusing both 3rd Respondent and the Petitioner and not deciding the rights of the parties one way or other, unnecessarily the Appellate Authority has dragged the Petitioner/widow before this Court from the year 2007 till today more than nine years for the Gratuity amount payable to her deceased husband. Therefore, the concerned Officer/Appellate Authority has to pay the Cost of the litigation to the Petitioner for dragging the matter. This Court is of the considered opinion that the Cost of Rs. 10,000 shall be paid by Sri J.M. Jayadevaiah, who passed two Orders as Appellate Authority, from his pocket and not from the State Government. If he is already retired from the service, the State Government is directed to deduct the said amount from his Pension amount payable to the Petitioner in the interest of justice.

For the reasons stated above, the impugned Order passed by the Appellate Authority as per Annexure ''G'' dated 28.2.2012 made in Appeal No.DLC-1/PGA/CR-53/2009-10 is hereby quashed. The matter is remanded to the 1st Respondent - Appellate Authority to reconsider the matter afresh on merits strictly, in accordance with law.