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Judgment
Mr. Justice Aravind Kumar
Petitioner - KSRTC has called in question the Order dated 12.5.2010 passed in No.ALCMY/PGA/CR-15/2005-06 by the second respondent - Assistant Labour Commissioner and Controlling Authority under the Payment of Gratuity Act, determining the total gratuity payable to the 3rd respondent at Rs. 1,11,438/-which has been affirmed by the appellate authority i.e. first respondent herein by order dated 31.1.2011 at Annexure-H. 3rd respondent who claims to have been appointed in the year 1971 was on probationary and he was dismissed in the year 1979. On a dispute being raised by the workman before the Labour Court and said dispute having been allowed by the Labour Court directing the Corporation to reinstate the workman into service he was taken into service with effect from 1.2.1988 as probationary conductor. On attaining the age of superannuation, 3rd respondent - workman retired from service on 31.10.1999. Petitioner -Corporation determined the gratuity payable to 3rd respondent by calculating the total number of years of service rendered by him as 11 years 8 months and 4 days and deducted break in service period of 5 months 14 days and arrived at the active Service as 11 years 2 months 20 days and thereby determining the gratuity payable at Rs.39,140/- by taking into consideration the last drawn basic pay at Rs.3,479/-. The 3rd respondent has received the cheque for the said amount and same is not in dispute.
After a period of 6 years i.e. on 24.6.2005 a claim was lodged with the 2nd respondent - Controlling Authority by the 3rd respondent contending that he had put in 25 years of active service and his actual basic pay was Rs.4,665/- and claimed that gratuity amount of Rs. 1,16,625/- is to be paid by the Corporation and sought for payment of difference amount of Rs.77,685/-(Rs. 1,16,625-00 less paid Rs.38,940-00). The 2nd respondent - Controlling Authority determining the active service of 20 years by taking into consideration the date of initial appointment as probationary in the year 1971 till the date of superannuation in 1999 calculated total active service and accepted the plea of workman that his last drawn basic pay was Rs. 4,665/-and accordingly, determined the total amount payable by Corporation at Rs. 1,11,438/- which is inclusive of interest on the principal amount Rs.93,300/-. The calculation made by Controlling Authority is as under. 4,665X20=93,300/- vide order dated 12.5.2010 at Annexure-G.
Aggrieved by this order, petitioner -Corporation preferred an appeal before the first respondent appellate authority and a specific contention was taken in ground No. 11 that application filed by workman was belated namely it was filed after a period of six years and without there being an application for condonation of delay, 2nd respondent Controlling Authority could not have entertained the application and as such, Corporation sought for dismissal of the application and the order passed by the Controlling Authority amongst other grounds. However, the appellate authority having noticed this fact of workman not having filed an application seeking condonation of delay still proceeded to reject the appeal without delving upon the said issue. It is these two orders which have been impugned in the present Writ Petitions.
It is the contention of Smt. H.R. Renuka, learned counsel appearing for Corporation that impugned orders are liable to be set aside since admittedly, workman had not filed an application seeking condonation of delay in raising a claim and as such, order of the 2nd respondent - Controlling Authority is erroneous and contends that though this ground was specifically urged before appellate authority which also came to be observed by the Appellate Authority, but it did not delve upon said issue at all and as such she contends the order of the appellate authority affirming the order of the controlling authority is liable to be set aside.
Per contra, Sri L. Shekar, learned counsel appearing for workman would support the order passed by the Controlling Authority and contends that when the difference of amount in the gratuity is claimed, Rule prescribing the limitation for raising the claim for Controlling Authority is not attracted and as such, he contends that impugned orders does not suffer from any infirmity and prays for dismissal of the Writ Petition.
Having heard the learned advocates appearing for parties, I am of the considered view that following points arise for my consideration:
(1) Whether the Controlling Authority was justified in entertaining the claim lodged by the 3rd respondent workman on 26.4.2005 after a period of six years from the date of attaining superannuation and appellate authority was right in affirming order of Controlling Authority.
(2) What order.?
3rd respondent -Workman having worked from 1971-79 as a probationary conductor for alleged misconduct came to be discharged on 17.10.1979 by Corporation. On account of there being no enquiry conducted, dispute came to be raised by workman in Ref. No.85/1985 and reference was answered in favour of the workman and Labour Court directed the petitioner Corporation to reinstate the workman as a Probationary Conductor by Award dated 30.6.1987 at Annexure-A but without backwages and continuity of service. Implementing the award of the Labour Court the workman was taken into service by the Corporation as a Probationary Conductor with effect from 1.4.1989 and he continued to discharge his work. On attaining the age of superannuation, 3rd respondent retired from service on 31.10.1999.
It is not in dispute that 3rd respondent on attaining the age of superannuation, Corporation determined the gratuity payable as per the regulations prevailing in the Corporation which was more beneficial to the workman rather than the provisions of the and as such a sum of Rs.39,140/- was held to be the amount to which the 3rd respondent was entitled to. 3rd respondent does not dispute the receipt of the said amount. The receipt of cheque for the said amount has been accepted by the 3rd respondent from 1999 itself. However, for reasons best known workman did not raise any dispute with regard to determination of gratuity payable to him by the Corporation as per the adjudication order which came to be marked before the Controlling Authority as Exhibit. R3 and R5 respectively.
Thereafter, on 26.4.2005 i.e. after a period of six years, an application was filed by 3rd respondent -workman before the 2nd respondent - Controlling Authority claiming that he is entitled for difference of gratuity amounting to Rs.77,685/- on the premise that he had put in 25 years of service and his last drawn basic salary was Rs.4,665/-. A person eligible for payment of Gratuity under the Act is required to send a written application to the employer under sub section (1) of section 7 within 30 days as prescribed under sub Rule (1) of Rule 7. When there is a dispute with regard to any matter, the employee or the employer can make an application to the controlling authority for deciding the dispute under clause (b) of sub section (4) of section 7. Sub Rule (1) of Rule 7 of the Payment of Gratuity Rules, 1972, mandates an employee who is eligible for payment of Gratuity should make an application to the employer within 30 days from the date of Gratuity becomes payable by the employer. The employee, nominee or legal heir as the case may be can seek for a direction under sub section (4) of section 7 to the employer within 90 days of occurrence of the cause for filing the application. Under proviso to sub section (1) if the employee were to file a claim belatedly, Controlling Authority is empowered to entertain an application under sub rule (1) of Rule 10 even if the application is belated and subject to sufficient cause being shown by the employee as to why such application could not be filed in time. If sufficient cause is shown, the Controlling Authority would be entitled to condone the delay and entertain the application on merits.
In the instant case 3rd respondent workman retired from service on 31.10.1999 and filed an application before 2nd respondent on 26.4.2005 u/s 7(4) read with Rule 10(1) claiming that petitioner-employer had made short payment of gratuity amount and seeking payment of said amount. Thus, there was delay of more than 6 years in filing application. Admittedly, in the instant case no application was filed seeking condonation of delay even though claim was made belatedly viz., after a period of six years. In fact, Corporation in the appeal before the first respondent authority has raised this issue as a specific ground namely in ground no. 11 of its Appeal Memorandum contending that applicant had not filed application seeking condonation of delay, claim being belated and without there being an application for condonation of delay, such claim could not have been entertained by Controlling Authority. Though appellate authority in its order dated 31.10.2011 at Annexure-H has also made an observation that records do not disclose about applicant namely the workman having filed such an application it did not proceed to delve upon the said issue and give a finding, and it has failed to answer the said issue for the reasons best known. Learned Counsel for the workman also does not dispute the fact that workman had not filed an application for condonation of delay while filing application claiming gratuity. The fact remains that workman has admittedly not filed any application for condonation of delay and without such an application being filed, claim of workman could not have been entertained by 2nd respondent on merits and as such, order of the Controlling Authority as affirmed by the appellate authority cannot be sustained without going into the merits of the case. In the result, I pass the following:
ORDER
(1) Writ Petition is hereby allowed.
(2) Order of the second respondent -Assistant Labour Commissioner and Controlling Authority dated 12.5.2010 passed in No.ALCMY/PGA/CR-15/2005-06 at Annexure-G as affirmed by the appellate authority by order dated 31.1.2011 at Annexure-E are hereby quashed.
(3) The amount in deposit made by the petitioner Corporation before 2nd respondent - Controlling Authority is directed to be refunded to petitioner forthwith.
(4) However, this order would not come in the way of 3rd respondent - workman filing fresh application before 2nd respondent claiming Gratuity explaining the cause of delay if so advised.
(5) No costs.
(6) Ordered accordingly.