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Judgment
Aravind Kumar, J. - Heard Sri K. Govindaraj, learned Counsel appearing for petitioner and Sri S.B. Pavin, learned Counsel appearing for respondent 2 in W.P. No. 30417 of 2014.
Respondent 2 in all these petitions claiming to be the employees under petitioner initiated proceedings before the Controlling Authority under Section 4 of the Payment of Gratuity Act, 1972 claiming that gratuity amount due and payable to them had been withheld by the petitioner-employer.
Petitioner herein appeared, filed statement of objections contending that there is no relationship of'' employer'' and ''employee'' between them. It is the stand of writ petitioner before Controlling Authority that he was working in the cinema theatre as Manager and as such, question of payment of gratuity amount to the applicants i.e., former employees of cinema theatre does not arise. Adjudicating Authority, by the impugned orders allowed the applications and directed the petitioner and fifth respondent to pay gratuity amounts as indicated in the impugned orders, by fixing joint and several liability on both petitioner and fifth respondent.
Impugned orders are appealable under sub-section (7) of Section 7 of Payment of Gratuity'' Act, 1972. Petitioner having not availed the efficacious and alternate remedy available under the Act, these writ petitions are liable to be dismissed on the said short ground itself.
This Court would have considered the prayer of the petitioner to grant liberty'' to avail the alternate remedy of filing an appeal before the Appellate Authority, if the petitioner had filed these writ petitions within an outer limit of 120 days on receipt of a copy of the order impugned in these writ petitions. Undisputedly, petitioner has filed these writ petitions beyond the period of 120 days, which is the upper limit provided under the proviso of sub-section (7) of Section 7 of the Act for filing an appeal. In that view of the matter, question of granting liberty to the petitioner to file an appeal before the Appellate Authority would also not arise and it would be an exercise in futility. Therefore, these writ petitions are liable to be dismissed on the ground of petitioner having not availed the alternative remedy of appeal
However, this Court has also examined the case on merits. It is the contention of Sri. K. Govindaraj, that when there is no relationship of ''employer'' and ''employee'' between petitioner and workmen (respondent 2 in all these cases), liability cannot be fastened on petitioner which requires to be considered with utmost circumspection for reasons more than one. Firstly, it is seen from the records, that undisputedly petitioner had entered into a lease agreement with the owners of the theatre to run the said theatre M/s. Mallikarjuna Theatre on lease basis under Memorandum of Agreement dated 1-1-1978. Said document was produced before the Controlling Authority as per Ex. P. 2. Pursuant to the said Agreement, petitioner has continued to run the theatre in question i.e., ''Mallikarjuna Talkies'' and the Statutory Authorities having found that cinema theatre is not being maintained as per the Cinematographic Act, has prohibited exhibition of films in the theatre in the year 2008. In this background, petitioner got issued a legal notice on 6-5-2009 to his lessor namely, Sri C.R. Chandrashekar, the Managing Partner of partnership firm ''Mallikarjuna Talkies'', who has been arrayed as 4th respondent in these writ petitions. In tire said legal notice Annexure-Q2 petitioner has sought for refund of security deposit from lessor and also claimed damages. Said legal notice came to be marked as Ex. R. 2 before Controlling Authority. The said legal notice is also duly signed by the petitioner and in his evidence tendered before the Controlling Authority petitioner has admitted that signature found on the Agreement and as well as legal notice as his signature vide cross-examination dated 21-9-2012. When petitioner himself has got issued legal notice in the year 2009 claiming refund of security deposit on the ground that he has stopped exhibiting films, he cannot be heard to contend that he is not liable to pay the dues of the employees on the ground that he is not their employer namely, gratuity amount from 1-1-1978 to 1-10-2008. The liability having been fixed on the petitioner and fifth respondent (Smt. Lakshmidevamma), which is joint and several, petitioner cannot be absolved of such liability, as ordered by the Controlling Authority.
Secondly, petitioner having been unable to place any material before the Controlling Authority to establish that he was not running the theatre in question as indicated in Agreement dated 1-1-1978 (Ex. P.2), petitioner would be jointly and severally liable to indemnify the amount as ordered to be paid under the impugned orders. Hence, this Court finds that even on merits, the petitioner would be entitled to any relief.
For the reasons afore stated, I proceed to pass the following:
ORDER
(i) Writ petitions are hereby dismissed.
(ii) Orders of the Controlling Authority all dated 30-11-2013 Annexure-R are hereby affirmed.
No order as to cost.