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Judgment
Subhash B. Adi
These writ petitions are by the Management, questioning the order of originally the Appellate Authority under the Payment of Gratuity Act, 1972. Respondent No. 1 had filed a claim petition u/s 4 sub-section (1) before the Controlling Authority under the Payment of Gratuity Act interalia claiming that he is entitled for gratuity to the tune of Rs. 1,31,728/- interalia contending that, he was appointed on 14.11.1984 and he tendered his resignation on 16.12.2002, as such, he had put in 18 years of service. The claim petition was opposed by the Management interalia alleging that the respondent No. 1 had committed misappropriation of an amount of Rs. 11,61,284/-. In this regard, a criminal case was also lodged. Though the respondent No. 1 had tendered resignation, but same has not been accepted. Further, the claim petition before the Controlling Authority is not maintainable.
Before the Controlling Authority, though such contention is raised, the Controlling Authority refers to the objection raised by the Management at para-6.1 and 6.2 and conveniently does not even hold whether the resignation is accepted or not, whether the service of the respondent No. 1 has come to an end or terminated, there is absolutely no finding as to on what basis, gratuity is calculated.
The first and foremost requirement to maintain the claim petition is that, the claimant must show that, he had put in such number of years of service and his services have been terminated with effect from so and so, if there is any dispute, the first issue for the claimant to prove is that there is valid termination. However, without there being any finding as regard to the termination, the gratuity amount has been determined by the Controlling Authority and the Appellate Authority mechanically has reiterated the same finding and has dismissed the appeal.
Learned Counsel for the petitioner submitted that, the Controlling Authority as well as the Appellate Authority, though have no jurisdiction, but have entertained the claim petition and passed the order. He also submitted that, the amount misappropriated is Rs. 11,61,284/-, it is not recoverable from the account of the respondent No. 1
Learned Counsel for the respondent No. 1 though tried to contest the matter, but was not able to show that there is any termination of service or resignation is accepted, however, did not dispute that the criminal proceedings are also pending. Since I do not have the complete records to show that the services of the respondent No. 1 have been terminated, it is appropriate to give one opportunity to the petitioner to prove that the services of the respondent No. 1 have been terminated and in law, he is entitled for gratuity.
Accordingly, the petitions are allowed. The order dated 9.9.2010 passed by the Controlling Authority, Bangalore as well as the order dated 5.12.2011 passed by the Appellate Authority, Bangalore, are hereby set aside. Matter is remitted to the Controlling Authority to decide whether there is termination of service of the respondent No. 1 in accordance with law or not, thereafter it may consider for calculation of gratuity.