Raj Kumar Dhara vs Budge Budge Co. Ltd. & Ors.

This appeal is directed against a judgement and order dated October 5, 2016 passed in the writ application. The subject matter for consideration in the

writ application was that the order passed by the Controlling Authority under the Payment of Gratuity Act, 1972(hereinafter referred to as the said

Act, 1972) and the point of maintainability of the claim of the appellant/workmen for gratuity was not considered. The learned single judge after

hearing the parties passed the following order:-

“Having heard the parties and considering the materials on record, this Court is satisfied that the matter be relegated to the Controlling Authority

who shall decide this issue raised by the petitioner/Company first in the light of the Standing Orders of the Company(Supra|) and then proceed to

consider the other issues. Let such adjudication be concluded expeditiously without granting unnecessary adjournments and not later than 16 weeks

from the date of communication of this order. Since no affidavit has been called for, the allegations levelled in the writ petition shall be deemed not to

be admitted. W.P. No.20278(W) of 2016, W.P.20282(W) of 2016, W.P.20284(W) of 2016, W.P.20276(W) of 2016 & W.P.20274(W) of 2016 stand

accordingly disposed of.â€​

It is submitted by Mr. Rananeesh Guha Thakurta, learned Advocate appearing for the appellant that in view of the settled principles of law as decided

by a Division Bench of this Court in which one of us (Debasish Kar Gupta,J.), the presiding judge, M/s. Budge Budge Company Limited Vs. The

State of West Bengal & Ors.(In re: M.A.T. 1800 of 2017) the point of maintainability of a proceeding before the Controlling Authority under the said

Act, 1972 should be considered along with the claim of the workmen for gratuity on its merit. It is further submitted by him that the above judgement

was passed on December 21, 2017 relying upon a decision of the Hon’ble Apex Court in D.P. Maheshwari Vs. Delhi Administration & Ors.

reported in AIR 1984 SC 153.

It is submitted by Mr. Balai Chandra Paul, learned Advocate appearing on behalf of the respondents Company that the hearing of the point of

maintainability is in progress before the Controlling Authority under the said Act, 1972. The appellant had chosen not to adduce any evidence on the

point of maintainability in spite of participating. In view of the aforesaid facts and circumstances, it is not a fit case to direct the authority to hear the

claim of the appellant workmen on its merit at this stage.

Having heard the learned Counsel appearing for the respective parties at length as also we have given our anxious consideration to the facts and

circumstances of this case. It is not in dispute that the hearing of maintainability of the proceeding initiated by the appellant workmen under the said

Act, 1972 is not progress. It is also not in dispute that the appellant workmen had chosen to not adduce any evidence with regard to its preliminary

objection. In view of the above, there is no scope to interfere with the proceeding pending before the authority under the said Act, 1972. On perusal of

the order impugned to this appeal, we further find that the learned single judge directed the authority under the said Act, 1972 to arrive at a conclusion

with regard to maintainability of the claim of the appellant workmen within a period of 16(sixteen) weeks from the date of communication of this

order.

So far as the unreported decision of M/s. Budge Budge Company Limited is concerned on the basis of the distinguishable facts and circumstances in

that case, admittedly at the stage of cross examination of the proceeding in respect of the merits of the claim of the workmen, the Company preferred

to file a writ application for hearing of their objection with regard to maintainability of the claim of the workmen taking into consideration the peculiar

facts and circumstances of this case, the appeal was disposed of relying upon a decision of D.P. Maheshwari(Supra) with a direction upon the

authority under the said Act, 1972 to hear the objection with regard to the maintainability of the proceeding at the time of considering the claim of

workmen on its merit. It has no bearing on the facts and circumstances involved in this appeal.

Since no other issue is involved in this appeal, this appeal is treated as on day’s list and the same is disposed of along with the application bearing

C.A.N. 300 of 2017 modifying the order impugned to this appeal only to the extent that the authority under the said Act, 1972 shall dispose of the issue

of maintainability of the claim of the appellant workmen expeditiously and preferably within a period of eight weeks from the date of communication of

this order. There will be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.