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Judgment
A.N. Venugopala Gowda, J.—Respondent No. 3 was an employee of the petitioner, having joined service as a badli driver on 17.05.1975. He was dismissed from service on 14.06.1976 and the same was questioned in I.D. No. 93/1984. The reference was allowed in part on 30.06.1986 and reinstatement of the workman to the post held by him as on the date of termination with consequential benefits as permissible in law was awarded. In pursuance thereof, the respondent - workman was reinstated on 11.05.1987 and he was confirmed in service by an order dated 18.11.1987. Respondent attained the age of superannuation on 31.05.1997 and filed an application before the 2nd respondent claiming difference of gratuity. By an order dated 11.01.2000, the 2nd respondent determined the difference of gratuity payable by the petitioner to the workman at Rs. 23,051/-. An appeal filed by the petitioner - Corporation against the said order having been dismissed on 28.05.2011, the petitioner deposited Rs. 24,077/- together with interest. 3rd respondent having filed application in PGA/CR-128/2004-05 claiming difference of gratuity before the 2nd respondent, the same was allowed directing deposit of Rs. 2,92,059/- as difference of gratuity amount payable by the petitioner. An appeal filed there against by the petitioner before the 1st respondent having been dismissed on the ground that it was filed beyond the condonable delay period vide order at Annexure-J, this writ petition has been filed to quash the orders passed by the respondents 1 & 2 vide Annexures - J & H.
Smt. H.R. Renuka, learned advocate appearing for the petitioner contended that in view of the orders passed by the respondents 1 & 2 vide Annexures-B & C, principles of res judicata are attracted and the 2nd respondent is unjustified in passing the order as at Annexure-H and that the 1st respondent has committed illegality in mechanically rejecting the appeal by passing the order as at Annexure-J. She further submitted that the matter requires consideration by the Appellate Authority, in view of the attraction of principles of res judicata and the appeal having been dismissed on a technical ground, interference is warranted. Learned counsel placed reliance on an order dated 20.01.2006 passed in W.P. No. 2550/2005 vide Annexure-K.
Smt. B.P. Rupa, learned Government Pleader appearing for respondents 1 & 2 submitted that the appeal having been filed beyond the condonable delay period, the 1st respondent is justified in passing the order as at Annexure-J. She made submissions in support of the view taken by the 1st respondent in the order as at Annexure-J.
3rd respondent though served with the notice of the writ petition has remained unrepresented.
Perused the writ petition record.
3rd respondent had approached the 1st respondent in the matter of payment of gratuity. By an order dated 28.05.2001 as at Annexure-B, the gratuity amount payable by the petitioner to the workman was determined. An appeal filed by the petitioner questioning the said order having been found to be devoid of merit was dismissed by the 1st respondent on 10.01.2003 vide order at Annexure-C. The 3rd respondent having again approached the 2nd respondent, an order dated 01.08.2009 as at Annexure-H has been passed. The petitioner has not placed before the 2nd respondent the pleadings which led to the passing of the order as at Annexure-B and also its confirmation by the Appellate Authority on 10.01.2003 vide Annexure-C. The 1st respondent has rejected the appeal only on the ground that the same was filed beyond the condonable delay period.
In W.P. No. 2550/2005, an identical situation had come up for consideration. Appeal filed after delay period of 305 days had been rejected by the Appellate Authority, which became the subject matter of consideration in the said writ petition. After noticing that the Appellate Authority did not have the power to condone the delay and though rightly rejected the appeal, it was held that the court cannot shut its eyes in a situation wherein it is required to prevent injustice to happen when public money is involved and the matter cannot be allowed to end on mere technicalities. It was further held that while exercising the jurisdiction under Articles 226 and 227, the Court can interfere with such orders with a view to prevent misuse of public money and as a result, while quashing the impugned order, the delay in filing the appeal was condoned and the Appellate Authority was directed to decide the appeal on merits after issuing notice to both parties.
In this case also, the claim made by the 3rd respondent in the matter of payment of gratuity was determined by the 2nd respondent who passed the order as at Annexure-B and the appeal filed there against by the Management was dismissed by the Appellate Authority i.e., the 1st respondent herein, vide order at Annexure-C. In the second round of litigation, respondents 1 and 2 ought to have taken into consideration the orders as at Annexures - B & C. The 1st respondent has rejected the appeal filed by the petitioner against the order as at Annexure-H on mere technicality i.e., on account of the appeal having been filed beyond condonable limit of delay. Since the appeal has been rejected on technicality and as the appeal prima facie requires consideration, in my opinion, the petitioner is entitled to succeed, as otherwise, there would be denial of justice in an appeal which requires consideration on merit.
In the result, writ petition is allowed and the order passed by the 1st respondent as at Annexure-J is quashed. The delay in filing Appeal No. PGA/CR-170/2009-10 by the petitioner is condoned. Consequently, the 1st respondent is directed to decide the said appeal on its merit and in accordance with law, expeditiously and within a period of 3 months from the date both the parties enter appearance.
The petitioner is directed to appear before the 1st respondent on 30.11.2013 and receive orders. The 1st respondent shall issue notice to the 3rd respondent herein and thereafter decide the appeal.
No costs.