IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.19234 OF 1999 G.Jagannathan Missier .. Petitioner Versus 1.Appellate Authority under the Payment of Gratuity Act Joint Commissioner of Labour Madurai. 2.Management M/s.Corera Shipping Corporation 159, Victoria Street, Tuticorin – 628 001. .. Respondents PRAYER : Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the impugned order made in P.G.A.No.39/99, dated 20.09.1999 on the file of the 1st respondent and quash the same. For Petitioner : Mr.K.S.Narayanan For Respondent-2 : Mr.Ashok Menon For Respondent-1 : Mrs.C.Krishnapriya, Additional Government Pleader O R D E R Heard the submissions made on either side. 2. The petitioner has filed the present writ petition challenging the order of the appellate authority in P.G.A.No.39/99 dated 20.09.1999 and after setting aside the same, seek for further orders as this Court may deem fit in the circumstances of this case. 3. The petitioner was an employee of the second respondent. He has filed a Gratuity Application before the Controlling Authority i.e. the Assistant Commissioner of Labour, Tirunelveli). His claim https://hcservices.ecourts.gov.in/hcservices/ was taken on file as P.G.No.57/97. 4. The case of the petitioner was that he joined service on 01.04.1972 and had worked for 24 years. On 20.03.1996, he resigned from the service and his last drawn salary was Rs.2,250/- per month. For the service rendered by him, he was eligible to get gratuity under the Payment of Gratuity Act, 1972 (for short "Gratuity Act"). 5. The authority issued notice to the second respondent. Before the second respondent, the petitioner examined himself as A.W.1 and on the side of the second respondent, one Mr.Winston Corera examined. In defence of the petitioner's claim, they stated that they are not covered by the Gratuity Act as they were employing less than 10 workers. 6. In the counter statement, they have stated that there were 10 workers in their establishment and hence, the Gratuity Act will not apply to them. It is also stated that the petitioner did not resign from his work. On the contrary, he stopped coming to work. He also did not send a form of notice and the petition was filed belatedly. His last drawn salary was only Rs.2,250/-. The authority held that the petitioner had joined duty in the year 1972. During March 1996, he stopped from work due to health reasons. On the question of applicability of the Gratuity Act, he said that the contention that they employed less than 10 workers cannot be accepted. He held that the Management did not dispute the length of service put in by the worker and therefore, it was taken as 24 years of service and his last drawn salary was accepted as Rs.2250/-. In that view of the matter, he held that the petitioner was entitled for Rs.31,150/-. 7. The second respondent filed an appeal under Section 7(7) of the Gratuity Act. As it requires pre-deposit, the amount was also deposited with the first respondent. Before the first respondent, they raised similar contentions. 8. The first respondent however held the fact that the petitioner was resigned from service was not proved and he had stopped on his own. There was no proof that the Management employed 10 workers. By saying so, the second respondent's appeal in P.G.A.No.39/99 was allowed. 9. Aggrieved by the same, the petitioner filed the present writ petition and the same was admitted on 03.12.1999. 10. The petitioner sought for an injunction against the second respondent from withdrawing the amount lying in deposit. But this Court dismissed the W.M.P.No.28171/1999 on the ground that if the petitioner succeeds, it always regard the amount as the second respondent was sound party. https://hcservices.ecourts.gov.in/hcservices/ 11. Taking advantage of the same, it is now claimed by the counsel, that the second respondent had withdrawn the amount lying in deposit with the Controlling Authority. 12. This Court directed first respondent to produce the original records and the same was circulated by the first respondent and this Court perused the same. 13. In the present case, the length of service and his employment with the second respondent of the petitioner was not in dispute. Even with reference to his last drawn wages, there is no serious dispute and the difference between the parties is nominal. 14. The three contentions which are raised by the counsel for the second respondent was (1) the application was belated (2) the application of the Act was not proved (3) the petitioner on his own stopped coming to work. With reference to the limitation, this Court finds that there is no delay on the part of the petitioner even otherwise this Court vide its judgment reported in 2008 (2) LLN 246 (K.P.BACKIASAMY VS. APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972 AND REGIONAL LABOUR COMMISSIONER (CENTRAL), CHENNAI AND OTHERS, in paragraph 8, had dealt with the bar of limitation and the same may be usefully extracted below: "8.In the present case, when the workman sent a notice in Form I under Rule 10(1), there is no reply from the employer and they have also not settled the gratuity within the due date. While for filing an appeal, S.7(7) itself prescribes a time-limit, for presenting an application before the controlling authority, under the Rule, no delegation has been given for the State to make the rule relating to limitation. In any event, the delay in filing the application is not unduly long. On the contrary, as held by the Patna High Court in its decision reported in Mineral Area Development Authority V. State of Bihar and others [1998 (3) L.L.N. 484], the scheme of the Act must be kept in mind and it is only then, the application will have to be decided. Similar view was also expressed by the Allahabad High Court in its decision reported in Rajendra Deva V. Additional Labour Commissioner (Accounts) Kanpur – cum - Appellate Authority, and another [1999(3) L.L.N. 62]........" 15.The third contention that the petitioner stopped on his own accord and therefore, the Act will not apply cannot be accepted in terms of the Gratuity Act. Gratuity become payable on the happening of anyone of the contingencies mentioned under Section 4(1) https://hcservices.ecourts.gov.in/hcservices/ of the Gratuity Act. Since the contingencies include resignation and the Act is silent on the mode or procedure for giving a resignation, it will have to be taken that the contract will get severed on the volition of the worker. Hence that act will be sufficient ground for construing it as a resignation. Resignation only means the disinclination of a workman to report for work. Since it relates to a private employment, the question of acceptance of a resignation may not arise. The only qualification was that the worker must have put in minimum five years of service without which he cannot get gratuity. In the present case, the petitioner has put in more than 25 years of service. 16. The third question of application of act is concerned, it is seen from the counter statement filed by the second respondent dated 05.08.1999 that in their office only 9 persons are working. But in the memorandum of appeal also, their contention was that not more than 9 persons are working in their establishment. 17. After the petitioner's deposition he was cross examined by the second respondent, he had stated that there are merely 100 workers were employed. The second respondent, being an establishment covered by the procedure of Shops Act, they did not file any documents to substantiate that they had employed less than 10 workers. But the management witness Wintson Corera said that there are not more than 5 workers in their establishment. This shifting stand of the Management was disbelieved by the second respondent. Unfortunately, the appellate authority without regard to the very same factors, reversed the findings of the Controlling Authority. 18. Though the first respondent has the power of an appellate authority but only for strong reasons alone, he can reverse the findings of the Controlling Authority. 19. In the present case, this Court is fully satisfied that the second respondent is covered by the provisions of the Payment of Gratuity Act and the petitioner's non-employment was due to his resignation and that he is eligible to get gratuity and the question of delay in moving the authorities did not arise. 20. In the light of the above, the writ petition stands allowed and the impugned order of the first respondent in P.G.A.No.39 of 1999 dated 20.09.1999 is set aside. The order of the Controlling Authority in P.G.No.57/97 dated 31.03.1999 will stand restored. The second respondent is hereby directed to pay the gratuity to the petitioner within four weeks from the date of receipt of this order, failing which the petitioner is entitled to invoke the machinery https://hcservices.ecourts.gov.in/hcservices/ provided under the Act to recover the amount. However, there will be no order as to costs. Sd/- Assistant Registrar /True Copy/ Sub Asst.Registrar TK To The Appellate Authority under the Payment of Gratuity Act Joint Commissioner of Labour Madurai. +1 CC to Mr.K.S.Narayanan, Advocate SR.No.8003 +1 CC to Mr.Ashok Menon Advocate Sr.No.7531 +1 CC to the Government Pleader Sr.No.8150 PRE-DELIVERY ORDER MADE IN W.P.NO.19234 of 1999 GR DRL (16/02/2010) https://hcservices.ecourts.gov.in/hcservices/