THE DIVISIONAL CONTROLLER vs. M M RASHEED

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 15TH DAY OF MARCH 2016 BEFORE THE HON’BLE MR. JUSTICE B.S. PATIL WRIT PETITION NO.107540 OF 2014 [L-PG] BETWEEN THE DIVISIONAL CONTROLLER NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION, GADAG DIVISION, GADAG R/BY ITS CHIEF LAW OFFICER NWKRTC, CENTRAL OFFICE, HUBBALLI ... PETITIONER (BY SRI P.R. BENTUR, ADVOCATE) AND 1. SRI M M RASHEED AGED ABOUT 71 YEARS, OCC: RETIRED PERSON, R/O. JAVALIGALLI, GADAG 2. THE ASSISTANT LABOUR COMMISSIONER AND THE CONTROLLER UNDER PAYMENT OF GRATUITY ACT, 1972. HUBBALLI DIVISION, HUBBALLI 3. THE DEPUTY LABOUR COMMISSIONER AND APPELLATE AUTHORITY UNDER

: 2 : PAYMENT OF GRATUITY ACT, 1972, AT BELAGAVI ... RESPONDENTS (R2 & R3-SERVED; R1-UNSERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS BEARING NO. UPAKA/CR- 1/09-10 DATED 17.08.2011 PASSED BY RESPONDENT NO.2 PRODUCED AS ANNEXURE-A AND ORDER BEARING NO. UKAABE/PGA/APPEAL/CR-24/2012 DATED 31.12.2013 PASSED BY RESPONDENT NO.3 PRODUCED AS ANNEXURE-C. THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY THE COURT MADE THE FOLLOWING:- O R D E R The Divisional Controller, North West Karnataka Road Transport Corporation, Gadag Division, Gadag has filed this writ petition challenging the order dated 17.08.2011 passed by the Assistant Labour Commissioner and the Controlling Authority under the provisions of Payment of Gratuity Act, 1972 confirmed in appeal by the Appellate Authority-Deputy Labour

: 3 : Commissioner, Belagavi vide his order dated 31.12.2013. 2. As the matter lies in a short compass I have heard the learned counsel for petitioner for preliminary hearing at the stage of orders itself. A perusal of impugned order discloses that respondent-workman has retired from service. He has been held entitled for payment of gratuity in terms of the provisions contained in Sub Section (5) of Section 4 of Payment of Gratuity Act, 1972 in a sum of Rs.2,22,828/-. He has been paid by the Corporation a sum of Rs.1,74,465/- and therefore balance amount of Rs.48,363/- being difference has been ordered to be paid with interest at 6% with effect from 30.03.2009. While coming to this conclusion both the authorities below have found that as per service particulars of the respondent-workman, he had worked for 31 years 29 days in the Corporation and his basic

: 4 : salary was Rs.3020/- and along with dearness allowance at Rs.5798/- the monthly wages paid to him was Rs.8,818/- and therefore in terms of Sections 4(2) and 4(5) of the Act, the amount to which he was entitled was Rs.2,22,828/- 3. According to petitioner, the total length of service of workman was only 30 years 10 months 15 days because he was absent from duty for a period of 50 days which was required to be excluded. It is further contended that the Corporation had deducted certain amount towards income tax and professional tax, which has been wrongly disallowed by the authority. It was further contended that the authority did not take note of the fact that though a sum of Rs.25,000/- had been deposited from out of the amount deducted by the Corporation in the gratuity, the deposited amount had not been given credit to. It was lastly contended that the amount of

: 5 : Rs.1,74,465/- was received by employee without any protest, in full satisfaction and therefore the authorities were not justified in passing the impugned order. 4. On careful consideration of the entire material on record I find that there is no justification in the contention taken by the petitioner-Corporation that for a period of 50 days the workman was absent and therefore the said period was required to be deducted out of the total length of service of the workman. No material has been produced to establish that workman was absent from duties for a period of 50 days. Therefore, in the absence of any material produced before the authorities, the concurrent findings recorded by both the authorities regarding length of service of the workman cannot be found fault with. As regards the alleged deduction made by the Corporation,

: 6 : the authorities have rightly held that no deduction could be permitted from the amount of gratuity payable to the workman and therefore the Corporation was not justified in making any such reduction. As regards the alleged deposit of a sum of Rs.25,000/-, no material was produced before the authority to show that any amount so deposited was towards the gratuity amount. In the absence of proof of such deposit the authorities have rightly come to the conclusion that assertion made by petitioner/Corporation could not be accepted. Mere fact that the workman has received a sum of Rs.1,74,465/- without any protest cannot defeat his right and entitlement to receive the amount payable to him towards gratuity as per the provisions of the Act. The Corporation cannot take such technical contentions and the workman cannot be deprived of the amount payable to him towards gratuity on the ground that he had not protested while

: 7 : receiving a lesser amount from the Corporation. Therefore, none of the grounds urged by the Corporation are tenable in law.

Both the authorities below have after appreciation of evidence on record, come to a right and just conclusion. 5. Hence, the petition being devoid of merits is dismissed. Sd/- JUDGE Sbs*