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Judgment
A.N. Venugopala Gowda, J.—B. Krishna/1st Respondent filed an application u/s 7(4) and Rule 10(1) of Payment of Gratuity Act, 1972 and the Rules made thereunder alleging that, he joined the 2nd Petitioner''s office as Laboratory Assistant and retired on 30.10.2005. According to him, he was drawing a salary of Rs. 8,281/- p.m. at the time of retirement. The claim made in the application was for directing the 2nd Petitioner to deposit/pay Rs. 1,86,322/- towards gratuity amount for the period of service i.e., 39 years. The application having been filed belatedly, the application seeking condonation of delay was filed. The 2nd Petitioner which was shown as the Respondent in the application, filed statement of objections and contested the claim. It was stated that, B. Krishna was working on daily wages with effect from 1.5.1969. as Laboratory Assistant and he became permanent servant on 1.1.1990 and retired on attaining the age of superannuation on 30.10.2005. It was further stated that, at the time of retirement from service, the salary drawn was Rs. 3,300/- p.m. and Rs. 44,058 was paid towards gratuity and Rs. 26,400/- towards DCRG i.e., for the period from 1.1.1990 to 31 10.2005. It was stated that, the period of service between 1.1.1969 to 31.10.1989 cannot be reckoned for payment of gratuity and other benefits in terms of the Karnataka Civil Service Rules.
The 2nd Respondent/Controlling Authority, allowed the application, by an order dated 26.10.2009, determining the gratuity amount payable at Rs. 1,45,978/-. This writ petition is directed against the said order.
Sri Jagadeesh Mundargi, learned AGA appearing for the Petitioners contended that, the 1st Petitioner herein was not made a party in the application filed by the 1st Respondent before the 2nd Respondent and hence, the Petitioners had no effective opportunity to defend the claim putforth by the 1st Respondent herein. The application being bad for non joinder of necessary parties, ought to have rejected by the controlling authority. To decide the claim putforth by the 1st Respondent before the 2nd Respondent, the 1st Petitioner herein/State, is a necessary party since the funds towards payment, if held liable, has to paid out the State Exchequer. It was submitted that m identical circumstances, an order passed by the Controlling Authority., when challenged, was held to be bad i.e., in W.P.4872/2008 decided on 20.9.2008.
Sri K. Govindaraj, learned Counsel appearing for the 1st Respondent on the other hand, firstly contended that, the writ petition is not maintainable since the Petitioners have not exhausted the alternate statutory remedy of appeal u/s 7(7) of the said Act. Secondly, the 2nd Petitioner being the only necessary party was impleaded and has defended the interest of the 1st Petitioner also. Learned Counsel contends that, in W.P.3197/2010 decided on 7.1.2011, the Petitioners i.e., the State and the Taluka Social Welfare Officer, had questioned similar order. The Petitioners were reserved with liberty of filing of appeal against the order of the Controlling Authority and appeal was directed to be disposed of on merit without reference to the question of delay and hence, the Petitioners herein can also be directed to file an appeal and same be ordered to be disposed of on merit, without referring to the question of delay.
Sri jagadeesh Mundargi, submitted that; review petitions have been filed by both the parties to W.P.3197/2010, seeking review of the order dated 7.1.2011 and further in view of the judgment dated 15.6.2009 passed in W.A.2055/2008, the Appellate Authority being not vested with the power to entertain the appea1 filed beyond 120 days, has no jurisdiction to condone the delay and the order passed in W.P.3197/2010, being one without taking notice of the judgment in W.A.2055/2008 dated 15.6.2009, the appeal if filed would be futile and in view of the grave injustice likely to be caused to the Petitioners, the impugned order may be quashed and the Controlling Authority may be directed to dispose of the matter in accordance with law.
Having heard the learned Counsel on both sides, I have perused the record.
Matter in issue is squarely covered by the order dated 20.9.1998 passed in W.P.4872/2008. Following the said order and for the reasons recorded therein, this writ petition is liable to be allowed.
Since both the parties to the order dated 7.1.2011 passed in W.P.3197/2010 have filed review petitions and said order does not take note of the judgment in W.A.2055/2008 dated 15.6.2009 and the order dated 20.9.2008 passed in W.P.4872/2008, I deem it appropriate to dispose of this writ petition in terms of the order dated 20.9.2008 passed in W.P.4872/2008.
In the result, the writ petition is allowed and the impugned order is quashed. The application filed before the 2nd Respondent by the 1st Respondent stands revived. The 2nd Respondent is directed to take up the matter for re-consideration. The 1st Petitioner herein be impleaded as Respondent No. 2 in the application of the 1st Respondent within two weeks of the application being taken up for consideration. The Petitioners are permitted to file their statement of objections/additional statement of objections, if any, within a period of six weeks from today.
The parties are directed to appear before the 2nd Respondent on 15.4.2011 without waiting for any notice from the 2no Respondent. The 2nd Respondent is directed to decide the application as early as practicable and at any event within a period of three months from the date of first appearance of the parties i.e., on 15.4.2011.
Contentions of both parties are kept open for consideration before the 1st Respondent.