Smt. Akkamma vs Sri. M. Balakrishna and The Deputy Commissioner of Labour and The Appellate Authority under the Payment of Gratuity, 1972, Hassan Region

Huluvadi G. Ramesh, J.—In these three petitions, the petitioners have sought for issuance of writ of certiorari quashing the order dated 8-6-2009 passed by the second respondent at Annexure-C and also to confirm the order passed by the Controlling Authority at Annexure-A.

These petitioners are claiming themselves to be the employees under the first respondent stating that they served for more than 10 years and they were refused employment illegally without paying any terminal benefits. The petitioners approached the Controlling Authority for payment of gratuity. The Controlling Authority allowed their applications filed by the workmen. Assailing the said order, an appeal was preferred before the Appellate Authority. The Appellate Authority set aside the order of the Controlling Authority an the ground of delay as well as on merits. The same has been assailed in these three petitions.

Heard the learned Counsel for the respective parties.

According to the learned Counsel for the petitioners, although the first respondent claim that he has maintained records, he could have produced the same before the Appellate Authority, but he did not produce. According to him, the Controlling Authority passed an appropriate order, but the Appellate Authority without any proper reasons reversed the same. It is also submitted that the service rendered by the petitioners have not been taken into consideration by the first respondent.

Per contra, learned Counsel for the first respondent submitted that after the death of his father, he was staying at Bangalore and there exists no relationship of employer and the employee, rather the petitioners are neighbours and they made an attempt the encroach the property belonging to him and when it was restricted, a false claim has been made by the petitioner claiming benefits without there being accrued right in the absence of any such relationship. It is also brought to ray notice that this Court has specifically held that a proceeding u/s 33-C(2) of the Industrial Disputes Act, 1947 is in the nature of Execution proceedings. When the relationship of employer and employee between the petitioners and the contesting respondent is not established, the question of payment of gratuity does not arise as such the Labour Court in the earlier round of litigation had rejected the claim of the petitioners and the same has been confirmed by this Court in W.P. No. 13756/2007.

In the light of the arguments advanced, the point that would arise for consideration is as to whether the impugned award needs interference?

The Appellate Authority has allowed the appeal and set aside the order of the Controlling Authority on the ground of delay. As per Rule 10 of the Payment of Gratuity Rules, the applications ought to have been filed within 90 days from the date of cause of action and they should have sought for condonation of delay. Since there is no such application filed seeking for condonation of delay by the applicants before the Competent Authority, an order passed without condoning the statutory delay becomes nonest. Further, it is found that no documents were produced to the effect that the petitioners were working under the first respondent and dismissed the claim of the applicants/petitioners. It is seen that the said order of the Labour Court passed on 22-11-2006 came to be confirmed by the court on 10-9-2008 in W.P. No. 13756/2007.

When the Appellate Authority dismissed the matter on merits as well as on the maintainability, the petitioners cannot insist for reversing the finding of the Appellate Authority and they have not made any attempt to produce necessary documents. Since they had suffered an order before the Labour Court as wall as before this Court wherein it is stated that there is no relationship of employer and employee, extending the benefit by the Controlling Authority appears to be unjust, as such, rightly the Appellate Authority has allowed the appeal and dismissed the claim of the petitioners.

For the foregoing reasons, these three petitions are dismissed.