Kamat Hotel vs Vaikunta and Others

P.S. Dinesh Kumar, J.—This appeal is preferred calling in question the Order of the learned Single Judge dated 30.1.2015 in W.P. No. 1336/2007 (L-PG).

Facts leading to filing of the instant writ appeal are, first respondent, an employee under the appellant-Hotel filed an application dated 9.6.2005 before the authority under the Payment of Gratuity Act, 1947 (''Act'' for short) (second respondent), for determination and payment of Gratuity, contending inter alia that he had worked for a period of 25 years from 17.9.1990 to 31.1.2005 with the appellant and the appellant had failed to pay gratuity amount due to him. Appellant contested the application. After due consideration of material on record, vide order dated 17.4.2006, the second respondent held that the first respondent - employee was entitled for a gratuity of Rs. 1,05,288/- with 10% interest p.a. Appellant challenged the said order before the second respondent/appellate authority, who by order dated 30.11.2006 allowed the said appeal, setting aside the order passed by the Controlling Authority. The said order passed by the Appellate Authority was challenged in a writ petition and the same was allowed by the learned Single Judge. Hence, this appeal.

Heard Sri A.S. Patil, learned Counsel for the appellant and Sri C.S. Patil, learned AGA for respondents No. 2 and 3.

Learned Counsel for the appellant contended that the employee - first respondent was entitled for only Rs. 34,693/- towards payment of gratuity and the same has been paid. He submitted that the Controlling Authority under the Act had erroneously held that the employee was entitled for a gratuity amount of Rs. 1,05,288/- and the same was rightly set aside by the Appellate Authority. However, the learned Single Judge without appreciating the material on record has restored the order passed by the Controlling Authority, even though the appellant had paid a sum of Rs. 34,693/-, due and payable under the Act. Accordingly he prayed for allowing this appeal.

Per contra, learned counsel for the first respondent submitted that, the employee has worked for 25 years with the appellant and entitled for payment of Gratuity under the Act. The Controlling Authority having rightly considered the matter had passed an order as per Annexure ''C'' directing payment of Rs. 1,05,288/-. Critically assailing the order passed by the Appellate Authority, learned Counsel submitted that the Appellate Authority wrongly assessed the wages earned by the first respondent as Rs. 2,577/-. He further submitted that the order passed by the Appellate Authority was palpably perverse as findings recorded therein was contrary to the material on record which has been rightly set aside by the learned Single Judge. Thus, supporting the impugned judgment of the learned Single Judge, he prayed for dismissal of this appeal.

We have given our anxious consideration to the rival contentions urged and perused the material papers.

The case of the first respondent is that he had worked for about 25 years with the appellant and his last pay drawn is Rs. 7,300/- per month. He had demanded payment of gratuity by issuing a statutory notice dated 20.5.2005 contending that his last pay drawn was Rs. 7,300/- per month. Thus, it has been his consistent stand the wages earned by him was Rs. 7,300/- per month. The evidence let in by the appellant in this regard has remained un-controverted. Based on the pleadings and evidence on record, the Controlling Authority had arrived at a conclusion that the first respondent was entitled for payment of Gratuity and accordingly determined the same at Rs. 1,05,288/-.

The Appellate Authority set aside the order passed by the Controlling Authority by upholding the contention urged by the Management Hotel that 1st respondent was not cross-examined and that the Controlling Authority had not rightly examined Management''s letter dated 31.01.2005 while accepting the salary of 1st respondent as Rs. 7,500/-. The Appellate Authority has further accepted the contention of the appellant and determined the wages of the first respondent at Rs. 2,577/-. It is also further accepted that a sum of Rs. 34,693/- was paid in the presence of one Sri Vilas Prabhu.

The learned Single Judge having bestowed his attention has also recorded a finding that the evidence tendered by the first respondent with regard to his wages as Rs. 7,300/- has remained un-impeached. He has also categorically held that no reference was made in the statement of objections filed by the appellant with regard to the actual wages nor there was any whisper with regard to the sum of Rs. 34,693/- said to have been paid to the first respondent. Accordingly, he has set aside the order passed by the Appellate Authority and restored the order passed by the Controlling Authority.

Appellant has not made out any legal ground for interference with the impugned order. The entire argument is based on factual aspects, which have been held against the appellant by the Controlling Authority as well as by the learned Single Judge. Having examined the material on record, we are of the considered view that there is no legal infirmity in the order passed by the learned Single Judge calling for interference in this intra - Court appeal.

Appeal fails and accordingly stands dismissed without any order as to costs.

In view of dismissal of main appeal, IA-2/2015 for dispensation and IA-1/2015 for Stay does not survive for consideration and the same stand disposed of accordingly.