IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.2037 of 2008 The Management B&C Mills Limited (Unit of Binny Ltd) Perambur, Chennai – 600 012 rep. by its Company Secretary .. Petitioner Vs. 1. The Joint Commissioner of Labour (Appellate Authority) Teynampet, Chennai – 600 006. 2. The Assistant Commissioner of Labour (Controlling Authority) Teynampet, Chennai – 600 006. 3. M.T.Rajamanickam .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the 1st respondent in P.G. Appeal No.13/07 and quash its order dated 16.10.2007. For Petitioner : Mr.S.Raveendran for M/s.T.S.Gopalan & Co. For Respondents : Mr.T.Seenivasan Additional Government Pleader for respondents 1 and 2 No appearance for third respondent ORDER The writ petition is directed against the order of the first respondent passed in the appeal filed by the third respondent under the Payment of Gratuity Act, 1972 (for brevity, "the Act"). https://hcservices.ecourts.gov.in/hcservices/ 2.1. The short facts leading to the passing of the impugned order by the first respondent are that the petitioner/Company has suspended its operation from 13.6.1996. On an application filed by the third respondent for payment of gratuity in P.G.Case No.2 of 2004, the second respondent allowed the same by order dated 15.4.2004. That happened to be an exparte order and on receipt of a copy of the said order, it is stated that an application was filed on 4.10.2004 by the petitioner/company to condone the delay and set aside the exparte order dated 15.4.2004. The condone delay application as well as the application to set aside the exparte order came to be allowed by the second respondent on 27.12.2004 on payment of cost of Rs.300/- to the third respondent. It is stated that the petitioner has paid the said cost to the third respondent and the P.G.Case No.2 of 2004 was restored to the file of the second respondent. 2.2. It was the case of the petitioner before the second respondent that the claim of gratuity by the third respondent for the period from 22.5.1958 to 31.3.1990 is not permissible and the third respondent ceased to be an employee from 7.12.1985 due to abandonment and cessation; and that the third respondent challenged the same by filing I.D.No.317 of 1985 which was allowed by award dated 25.11.1989 by ordering reinstatement with backwages and other benefits and the petitioner has challenged the same in W.P.No.18159 of 1990 and this Court, by order dated 24.11.2000, has set aside the said award and it is stated that as against the said order writ appeal has been filed and the same is pending. 2.3. The second respondent passed orders on 31.12.2006 in P.G.Case No.2 of 2004 dismissing the application of the third respondent on the ground that since writ appeal is pending no further order can be passed. It was against the said order of the second respondent dated 31.12.2006, the third respondent has filed P.G.Appeal No.13 of 2007. By the impugned order dated 16.10.2007, the first respondent, while dealing with the appeal filed by the third respondent against the final order passed by the second respondent dated 31.12.2006 which was after condonation of delay in filing a petition to set aside the exparte order, held that the second respondent was not justified in condoning the delay and setting aside the exparte order dated 15.4.2004, since the application of the petitioner to set aside the exparte order is belated and directed that the petitioner should pay the gratuity to the third respondent in terms of the order of the second respondent dated 15.4.2004 with interest at the rate of 10% per annum. 3. The impugned order passed by the first respondent dated 16.10.2007 is challenged on various grounds, including that the third respondent, who has received the cost in the application filed by the petitioner earlier to set aside the exparte order passed by the second respondent dated 15.4.2004, has not challenged the said order https://hcservices.ecourts.gov.in/hcservices/ by his conduct of receiving the cost and thereafter, the second respondent has passed the order in P.G.Case No.2 of 2004 on merits dismissing the same on 31.12.2006 and in the appeal filed by the third respondent against the merit of the final order dated 31.12.2006 passed by the second respondent, the first respondent ought not to have reopened the original order dated 15.4.2004 which is no more in existence by virtue of the subsequent final order dated 31.12.2006 and therefore, the impugned order of the first respondent is beyond jurisdiction. 4. On a reference to the impugned order of the first respondent passed under the provisions of the Payment of Gratuity Act as an Appellate Authority and in the undisputable facts it is clear that originally the third respondent filed P.G.Case No.2 of 2004 demanding gratuity amount of Rs.83,076/- with interest at the rate of 12% and the same was defended by the petitioner/company on the basis that the third respondent has abandoned the service from 30.1.1985; that the petitioner/company itself has ceased to operate; and that the cessation of service of the third respondent was challenged by him in the Labour Court which has passed an award in his favour and that came to be set aside by this Court by order dated 24.11.2000 in W.P.No.18159 of 1990, thereby dismissing the Industrial Dispute and it is against that order the third respondent has filed W.A.No.1708 of 2001 and the same is pending before this Court. 5. It is also not in dispute that the order passed by the second respondent dated 15.4.2004 in P.G.Case No.2 of 2004 filed by the third respondent is an exparte order. On record, it is seen that the petitioner/company has filed applications to condone the delay and to set aside the exparte order dated 15.4.2004 so as to restore P.G.Case No.2 of 2004 on file to decide the same on merit. Those applications were allowed by the second respondent on direction to the petitioner/company to pay a cost of Rs.300/- to the third respondent and after payment of the said cost, which has been received by the third respondent, the applications came to be allowed by the second respondent and the original exparte order passed by the second respondent dated 15.4.2004 directing the petitioner to pay the gratuity amount stood set aside and the matter was heard on merits. 6. It was after hearing P.G.Case No.2 of 2004 on merit, the second respondent has passed final order on 31.12.2006, of course dismissing the claim of the third respondent on the basis that the writ appeal filed by the third respondent is pending before this Court. Therefore, by virtue of the final order passed by the second respondent on 31.12.2006 in P.G.Case No.2 of 2004 on merit, namely after hearing both the parties, the original exparte order passed by the second respondent dated 15.4.2004 is no more in existence and certainly it is not open to the first respondent to reopen that order. When the restoration of P.G.Case No.2 of 2004 was ordered by the second respondent on payment of cost of Rs.300/- to the third https://hcservices.ecourts.gov.in/hcservices/ respondent, the same has not been questioned by the third respondent at any point of time. It is only the final order passed by the second respondent on 31.12.2006 in P.G.Case No.2 of 2004 that was questioned by the third respondent by way of appeal in P.G.Appeal No.13 of 2007 before the first respondent. In such circumstances, it is certainly not open to the first respondent to presume as if the original exparte order of the second respondent dated 15.4.2004 is still in existence. It is equally not open to the first respondent to hold that the second respondent ought not to have allowed the application to condone delay to set aside the original exparte order dated 15.4.2004 for the simple reason that those orders were never questioned by the third respondent, who is the affected party before the first respondent. Therefore, on jurisdictional issue, the first respondent has no jurisdiction to reopen that at all. It would have been different if the first respondent, being the appellate authority, by considering the order passed by the second respondent dated 31.12.2006 has set aside the order and directed the petitioner to pay the gratuity amount, but in the order passed by the first respondent it is clear that the first respondent has taken a stand that the second respondent ought not to have allowed the condone delay application and restored the P.G.Case No.2 of 2004 in which the exparte order was passed on 15.4.2004. In fact, the first respondent has raised it as an issue to the effect that the second respondent ought not to have entertained the application filed by the petitioner to set aside the order dated 15.4.2004 after the lapse of 30 days. When that was not an issue before the first respondent, the first respondent is not having jurisdiction to decide the same. 7. In such view of the matter, the impugned order of the first respondent is set aside and the matter is remanded to the first respondent to decide the appeal filed by the third respondent in P.G.Appeal No.13 of 2007 against the order of the second respondent dated 31.12.2006 passed in P.G.Case No.2 of 2004 on merit and pass appropriate orders after giving opportunity to the parties expeditiously, in any event within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition stands allowed in the above terms. No costs. sasi Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Joint Commissioner of Labour (Appellate Authority) Teynampet, Chennai – 600 006. 2. The Assistant Commissioner of Labour (Controlling Authority) Teynampet, Chennai – 600 006. + 1 cc to M/s. T.S. Gopalan & Co., Advocate SR.59764 W.P.No.2037 of 2008 RS(CO) EU 23.11.2009. https://hcservices.ecourts.gov.in/hcservices/