THE DIVISIONAL CONTROLLER vs KRISHNAIAH

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 27TH DAY OF NOVEMBER, 2012

BEFORE

THE HON’BLE MR. JUSTICE A.N.VENUGOPALA GOWDA

W.P.NO.33431 OF 2011 (L-KSRTC)

BETWEEN:

THE DIVISIONAL CONTROLLER KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL DIVISION K.H.ROAD, SHANTHINAGAR BANGALORE REP. BY THE CHIEF LAW OFFICER K.S.R.T.C.

... PETITIONER

(BY SRI B.L.SANJEEV, ADV.)

AND:

SRI KRISHNAIAH S/O CHELUVEGOWDA AGE: MAJOR HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT.

THE ASSISTANT LABOUR COMMISSIONER AND CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT BANGALORE DIVISION – 2 KARMIKA BHAVAN BANNERGHATTA ROAD BANGALORE.

2 3. THE DEPUTY LABOUR COMMISSIONER AND APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT BANGALORE REGION – I KARMIKA BHAVAN BANNERGHATTA ROAD BANGALORE. ... RESPONDENTS

(BY SRI JAGADEESH MUNDARAGI, HCGP FOR R2 & 3 R3 – SERVICE H/S)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 9.4.2009 PASSED BY THE ASSISTANT LABOUR COMMISSIONER AND CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, BANGALORE DIVISION–2 (RESPONDENT NO.2) VIDE ANNEXURE-A, AND THE ORDER DATED 18.4.2011 PASSED BY THE DEPUTY LABOUR COMMISSIONER AND APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, BANGALORE REGION-1, BANGALORE (RESPONDENT NO.3) VIDE ANNEXURE-B.

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Respondent No.1 joined the service of the petitioner on 6.7.1979 and retired from service on 31.12.2007, upon attaining the age of superannuation. He was paid gratuity amount of Rs.2,63,045/- in terms of the gratuity regulations of the petitioner. Finding

3 that there is short payment, the workman filed an application before the second respondent, on 21.05.2008, to direct the employer to pay the balance of the gratuity amount. The second respondent, upon adjudication, found that there is short payment of Rs.16,535/- and as a result, ordered the employer- petitioner to pay the said amount with interest at 10% p.a. from 9.4.2009. Feeling aggrieved, the employer/petitioner filed an appeal before the third respondent on 5.10.2009. Since the appeal was filed beyond the period prescribed under sub-Section (7) of Section 7 and even beyond the period provided under the first proviso thereunder, the Appellate Authority rejected the appeal vide order dated 18.4.2011, Annexure-B. Assailing the said orders, the employer has preferred this writ petition.

In support of the writ petition, Sri. B.L.Sanjeev, learned Advocate contended that the third respondent is not justified in rejecting the appeal on the ground of

4 delay, when the delay was only marginal i.e., 18 days. Learned counsel further contended that the short payment of Rs.16,535/- to the workman was on account of remittance made towards income tax dues of the workman, which ought to have been taken into consideration by the second respondent – Appellate Authority. Learned counsel further submitted that, since there is non-application of mind and non- consideration of the matter in accordance with law by the authorities under the Act, interference in the matter is warranted.

Sri. Jagadeesh Mundaragi, learned HCGP, appearing for respondent Nos.2 and 3, on the other hand, supported the impugned orders. He submitted that the delay in filing the appeal is not 18 days but it is 59 days. Learned counsel submitted that no proof was produced before the Controlling Authority, that Rs.16,535/- which had been deducted from the gratuity

5 was the amount which had been remitted towards income tax dues of the workman.

Perused the record.

Second respondent passed an order at Annexure-A on 9.4.2009. Appeal, if any, ought to have been filed within 60 days therefrom. The appellate authority has been conferred with the power to condone the delay in filing the appeal to a maximum extent of 60 days as is clear from the first proviso under sub-Section

(7) of Section 7 of the Act. In the instant case, the delay is about 59 days. No doubt, in the impugned order, the delay has been shown as 18 days, which appears to be a typographical error. The appeal having been filed on 5.10.2009, the delay in filing the appeal is evidently 59 days. The second respondent has not been conferred with the jurisdiction to condone the delay beyond the period shown in the first proviso to sub-Section (7) of Section 7 of the Act. In the said view of the matter, the

6 rejection of the appeal by the third respondent cannot be termed as either arbitrary or illegal.

With regard to the deduction of Rs.16,535/- from the gratuity amount, on the ground that the same was remitted as income tax dues, no proof has been produced before the second respondent or in this writ petition. In the said view of the matter, the second respondent is justified in determining the balance of gratuity amount payable as Rs.16,535/-. The amount having not been paid, the same has been rightly directed to be paid with interest.

The impugned orders are neither perverse nor illegal warranting any interference. Writ petition is rejected.

Sd/-

JUDGE

THE DIVISIONAL CONTROLLER vs. KRISHNAIAH