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Judgment
A.N. Venugopala Gowda, J.—The 1st Respondent filed an application u/s 7(4) and Rule 10(1) of Payment of Gratuity Act (''the Act'' for short) and Rules before the 2nd Respondent contending that, he joined the Petitioners'' office on 1.1.1966 as Lab Assistant and retired on 10.6.2004 and he is entitled to be paid Rs. 1,18,910/- towards gratuity. The application was accompanied by I.A.1 for condonation of delay. The 2nd Petitioner appeared before the 2nd Respondent and filed statement of objections wherein, it was contended that, the 1st Respondent was a daily wage worker from 16.12.1966 and was made permanent on 1.1.1990 and retired from service on 30.6.2004 by drawing salary of Rs. 3,300/- p.m. It was stated that, the employee was paid Rs. 47,415/- towards gratuity and Rs. 23,708/- towards DCRG for the period from 1.1.1990 to 30.6.2004 as per K.C.S. Rules. It was further contended that, for the daily wage service from 15.12.1966 to 31.12.1989, he was not liable to be paid any gratuity and other benefits as per K.C.S. Rules.
The 2nd Respondent allowed the application by an order dated 26.10.2009, determining the gratuity amount payable at Rs. 1,18,911/-. The said order has been questioned in this writ petition.
Sri Jagadeesh Mundargi, learned AGA appearing for the Petitioners firstly contended that, the 1st Respondent was not an employee as defined under the provisions of Payment of Gratuity Act and the provisions of the Act are not applicable and he being a government servant, the K.C.S. Rules are only applicable in terms of which, the D.C.R.G. was paid. Secondly, the State of Karnataka is a necessary and proper party and the 1st Petitioner having not been impleaded, the 2nd Respondent has erred in allowing the application in the absence of the necessary party. Thirdly, the impugned order is perverse and illegal and hence, interference is called for.
Sri V.S. Naik, learned Counsel appearing for the 1st Respondent on the other hand, firstly contended that, the writ petition is not maintainable for not filing an appeal as provided u/s 7(7) of the Act. Secondly, in view of the order passed in W.P.1806/1999 dated 18.8.1999, which was confirmed in judgment dated 6.12.2000 passed in W.A.2761/2000, the service rendered as a daily wager is also required to be counted and gratuity paid. Thirdly, in view of the order dated 30.8.2006, authorising the 2nd Petitioner to engage the services of the Government Advocate at Mysore to appear in the matter and take appropriate defence, the plea of the necessary party having not been accepted is too technical, since the State though being aware that it has not been impleaded as a party, as is evident from the taken from statement of objections, it ought to have come on record on its own, if interested in participating in the proceedings. Learned Counsel submits that, the writ petition is devoid of merit and hence, no interference with the impugned order is called for.
In view of the rival contentions, the point for consideration is:
Whether the impugned order is sustainable?
There is no dispute that, the 1st Respondent was a daily wage worker w.e.f. 16.12.1966 and was made permanent on 1.1.1990. The service rendered prior to 1.1.1990 was not taken into consideration while paying the gratuity. The payment which has been made was by only taking into consideration the period of service from 1.1.1990 to 30.6.2004.
In W.P. 1806/1999 decided on 18.8.1999, the claim made by a daily wager for payment of gratuity amount for the daily wage service, it was held that, the ''employee'' fall within the meaning of Section 2A of the Act and on that footing, the order passed by the authority under the Act being justified, the interference by the Appellate Authority having been found to be illegal, was set aside. An appeal filed there against by the employer in W.A.2761/2000, vide judgment dated 6.12.2000, it was held that, in case if the employee worked for more than one year or six months, in a calendar year and subsequently his services were to be regularised, the benefit comes back. In the said view of the matter, the writ appeal filed being found to he devoid of merit, was dismissed.
Indisputably, the 1st Petitioner was not impleaded as a Respondent in the application filed by the 1st Respondent before the 2nd Respondent, despite specific objection taken in the statement of objections filed by the 2nd Petitioner herein. It is no doubt true that, the 2nd Petitioner having made a reference to the Government on 25.8.2008, was authorised to avail the services of Assistant Government Pleader, Mysore, to appear in the matter and file statement of objections. Mere Knowledge of the action initiated by the 1st Respondent before the 2nd Respondent is not sufficient. When a specific ground was raised in the statement of objections filed by the 2nd Petitioner, the 1st Respondent ought to have impleaded the 1st Petitioner herein as an additional Respondent.
In W.P.4872/2008 decided on 20.9.2008, it has been held as follows;
Admittedly, the State of Karnataka is not a party to the proceedings and therefore, did not have the opportunity to put forth its defence, In the light of the definition of the term ''employee'' under Clause (e) of Section 2 and ''employer'' under Clause (f) of Section 2 of the Act, there can be no more doubt in my mind that the State Government was a proper and necessary party to the proceedings before the Controlling Officer. The failure to implead the State of Karnataka as party Respondent to the proceedings before the Controlling Officer, cannot but be said to have occasioned grave injustice to the State, calling for interference in exercise of jurisdiction under Article 226 of the Constitution of India.
In the said view of the matter, the contention urged that, the application filed before the 2nd Respondent by the 1st Respondent is bad for non joinder of necessary parties, is well founded.
The objection with regard to non filing of the appeal and non exhaustion of statutory remedy also gets covered from the order passed in W.P.4872/2008, wherein it has been held as follows:
Although the learned Counsel for the Respondent contends that the Petitioners would have to go through the rigmarole of filing an appeal under Sub-section (7) of Section 7 of the Act, in the facts and circumstances of the case, the State not arraigned as a party to the proceedings, it is appropriate that the State need not be driven to file an appeal while this Court, in exercise of jurisdiction under Article 226 of the Constitution of India, could interfere with the order impugned.
Following the said order, W.P.20117/2010 was allowed on 25.3.2011, wherein a similar contention was raised for consideration.
Since the 2nd Respondent has decided the application of the 1st Respondent in the absence of a necessary party, i.e., the 1st Petitioner herein, the impugned order is vitiated and is liable to be quashed.
In the result, the writ petition is allowed and the impugned order is quashed. The application filed by the 1st Respondent before the 2nd Respondent stands revived for consideration and decision afresh. The 2nd Respondent is directed to take up the application for consideration, suo motu implead the 1st Petitioner herein as 2nd Respondent in the application. The Petitioners are permitted to file statement of objections /additional statement of objections, if any within a period of 6 weeks from today.
The parties are directed to appear before the 2nd Respondent on 9.5.2011, without waiting for any notice from the 2nd Respondent, who is directed to decide the application as early as practicable and at any event within a period of 3 months from the date of first appearance of the parties, i.e., before 9.8.2011.
No costs.