The Management, Srinivas Fire Works vs The Appellate Authority, Under the Payment of Gratuity Act, Joint commissioner of Labour, The Assistant Commissioner of Labour, Authority under the Payment of Gratuity Act and G. Koodammal

K. Chandru, J.—Heard Mr. Karthikeyan, learned Counsel for the Petitioner and Mr. S.C. Herold Singh, learned Government Advocate, who takes notice for R1 and R2 and the third Respondent not having been served.

The Petitioner, who is a management, is manufacturing fire works at Sivakasi. The Writ petition is filed against the order passed by the 2nd Respondent, Controlling Authority in P.G. No. 45 of 2003 dated 02.11.2004 and confirmed by the first Respondent, Appellate Authority in P.G.A. No. 50 of 2005 dated 29.12.2006. The third Respondent, who was employed by the Petitioner management, claimed gratuity for having worked for 13 years in their establishment. When the gratuity was not paid, she sent a legal notice. The Petitioner Management sent a reply dated 08.06.2002 stating that she had stopped on her own and therefore, they need not pay pay and reply for other allegations in the notice.

Thereafter, the 3rd Respondent has filed a gratuity application before the 2nd Respondent and the same was taken on file as P.G. No. 45 of 2003. Notice was issued to the Petitioner Management. During the pendency of the P.G. case, an application in I.A. No. 77 of 2004 was filed seeking a direction to the Petitioner Management to produce the attendance register for the period from 1988 to 1993 and also sought for acquaintance register for the period 2001. The Petitioner Management took up the contention that they are not having those documents and they are having documents only for a period of three years. Thereafter, before the Controlling Authority, the 3rd Respondent examined herself as P.W.1 and on the side of the Petitioner Management the deponent appeared, who is also a proprietor, was examined himself as R.W.1. On the side of the 3rd Respondent, 5 documents were filed and the same were marked as Exs.P1 to P5 and on the side of the Petitioner Management 3 documents were filed and the same were marked as Exs.R1 to R3. The record was summoned from the P.F. Office, which was marked as Court Exhibit No. 1. On the basis of both the oral and documentary evidence, the authority framed three issues.

i) Whether the delay in filing the application can be condoned?

ii) Whether the 3rd Respondent is eligible for gratuity? and

iii) if so, the amount to be quantified.

With reference to the condonation of delay, the authority condoned the delay stating that there were sufficient reason in not approaching the authority. With reference to the second issue the authority found that the defence taken by the Petitioner that they have already paid Rs. 3,700/- towards gratuity was not acceptable as there was no receipt for having paid the said amount. With reference to the service rendered by the third Respondent, it was contended that she has worked only for 4 years that too on a peace rate basis and she had been settled. The authorities disbelieved the stand of the Petitioner and held that even on the basis of summoning the record that the Petitioner had worked continuously from 1988 to till October 2001. He also found that since the management did not produce the crucial statutory register, adverse inference was also drawn regarding their stand.

The authority having found that the 3rd Respondent''s salary was Rs. 1,300/- per month directing the gratuity for 13 years period, to be paid at a total sum of Rs. 5,750/- together with 10% interest and cost of Rs. 1,000/-. As against the said order dated 02.11.2004, the Petitioner Management filed an appeal u/s 7(7) of the Payment of Gratuity Act. The said appeal was taken on file as P.G.A. No. 50 of 2005 and notice was issued to the 3rd Respondent. She had filed a counter affidavit dated 30.06.2006. The Petitioner has also filed written brief before the Appellate Authority. The Appellate Authority on the basis of the records came to the conclusion that there was no case to interfere with the order passed by the Controlling Authority. He found that the 3rd Respondent has proved on the basis of the available records that she had worked for 13 years. The third Respondent has also proved that she was drawing a salary of Rs. 1,300/- and the payment of Rs. 3,700/- paid towards gratuity was not supported by any stamped receipts. Therefore, the same cannot be accepted. It is on the basis of these records, the appeal was rejected and hence, the Petitioner is before this Court.

Notice of motion is ordered on 28.03.2007 and an interim stay was also granted by this Court. Subsequently, the interim stay was extended until further orders by a subsequent order dated 08.06.2007. Though the 3rd Respondent was served, she did not appear either in person or through any counsel.

The learned Counsel for the Petitioner reiterated the same contentions, which were raised before the two authorities below. In the affidavit filed in support of the Writ petition, it was contended that the order of the authority was violative of Article 14 of the Constitution as it is arbitrary and the authority ought to have accepted the plea of the management that the third Respondent did not work for the period claimed by her. The payment for gratuity paid to her was entered into the general ledger, which was marked as Ex.R3 and the reliance placed upon Ex.P5 series was erroneous. However, this Court is unable to countenance anyone of the arguments addressed by the Petitioner.

In the present case, the Petitioner has not produced the relevant statutory records. The plea made by them that those registers are maintained only for 3 years. Under the relevant statutory enactment, the said plea cannot be accepted because even under the Income Tax Act, such documents are relevant and there is no period of 3 years prescribed therein.

In any event, when a document was summoned before the Court and when the person who is in possession of the document, find their inability or refusal to produce, it is always open to the authority to draw adverse inference. The authorities are not entitled to do only by a self maintained registered and if the receipt which are bound to be stamped, are not under a stamp receipt, it is always open to the authority to reject such payment and it is only a question of matter of evidence.

Under these circumstances, this Court is not inclined to entertain the Writ petition. Hence, the Writ petition stands dismissed. No costs. Consequently, connected M.P. is closed.

It is open to the third Respondent to apply to the 2nd Respondent to withdraw the amount already deposited, since it is a condition precedent for filing an appeal. Since the third Respondent is not before this Court, a direction is issued to the first and 2nd Respondent to send notice to the 3rd Respondent and also to make her to withdraw the amount. This exercise will be completed within 8 weeks from the date of receipt of a copy of this order.