IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.03.2010 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.2743 of 2009 Gandhipuram Sarvodaya Sangam, rep. by its Secretary, G.Jayakanthan, 348, 7th Street, Cross Cut Road, Gandhipuram, Coimbatore – 641 012. ... Petitioner vs. 1. The Assistant Labour Commissioner, Controlling Authority under the Payment of Gratuity Act, Office of the Deputy Commissioner of Labour, Coimbatore – 641 018. 2. K.Baladhandapani ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records relating to the order dated 27.11.2008 made in I.A.No.125 of 2008 in G.A.No.91 of 2007 on the file of the 1st respondent and quash the same and consequently direct the 1st respondent to decide the maintainability of G.A.No.91 of 2007 as a preliminary issue. For Petitioner : Mrs.Rita Chandrasekaran M/s. Aiyar & Dolia For Respondent : Mrs.Sneha, for R1 Government Advocate Mr.G.Vivekanand, for R2 O R D E R The petitioner Gandhipuram Sarvodaya Sangam, represented by its Secretary has questioned the order dated 27.11.2008 passed by the 1st respondent in I.A.No.125 of 2008 in G.A.No.91 of 2007 seeking to https://hcservices.ecourts.gov.in/hcservices/ quash the same and for a consequential direction to the 1st respondent to decide the maintainability of G.A.No.91 of 2007 as a preliminary issue. 2. The petitioner would state that the 2nd respondent was issued with a charge memo dated 04.02.2002 and was dismissed from service by an order dated 18.03.2002. On the basis of the order of a Division Bench of this court dated 23.01.2004, the petitioner Management conducted enquiry and ultimately, by an order dated 26.02.2004, the 2nd respondent was dismissed from the services of the petitioner Management. A notice under Section 4(6)(b) of the Payment of Gratuity Act (hereinafter called the 'Act'), 1972 was issued to the 2nd respondent to show cause as to why the gratuity amount payable to him should not be withheld on account of the gravity of the misconduct committed by him. As no reply was received from the 2nd respondent, by a letter dated 07.12.2007, the 2nd respondent was informed about the withholding of the gratuity amount payable to him. In the meantime, the 2nd respondent filed G.A.No.91 of 2007 claiming a sum of Rs.3,27,825/- towards gratuity. 3. In G.A.No.91 of 2007 filed by the 2nd respondent, the petitioner Sangam filed I.A.No.125 of 2008 stating that the application filed by the 2nd respondent claiming gratuity is not maintainable on the ground that since the 2nd respondent was terminated from the services of the Petitioner Sangam on the offence involving moral turpitude, he is not entitled for payment of gratuity and unless the order of termination is set aside in a manner known to law, the petitioner Management has right to forfeit the gratuity payable to the 2nd respondent. The said application was dismissed by the 1st respondent on 27.11.2008 on the ground that the preliminary issue shall be dealt with along with the main application. Aggrieved by the same, the petitioner Sangam is before this court. 4. Heard Mrs.Rita Chandrasekaran, learned counsel for the petitioner, Mrs.Sneha, learned Government Advocate for the 1st respondent and Mr.G.Vivekanand, learned counsel appearing for the 2nd respondent. 5. Learned counsel for the petitioner Sangam submits that the 2nd respondent has not challenged the order of termination. Unless the order of termination is set aside, there is no obligation on the part of the petitioner Management to pay any gratuity to the 2nd respondent/workman and therefore, the application in I.A.No.125 of 2008 filed by the petitioner has to be decided on the question of maintainability of the gratuity application. However, the authority under the Act has rejected the Interim Application on the ground that deciding the Interim Application would amount to allowing the Gratuity Application. 6. Per contra, learned counsel for the 2nd respondent/workman https://hcservices.ecourts.gov.in/hcservices/ would submit that there is no infirmity in the order passed by the authority, namely the 1st respondent. If the order of rejection of the Interim Application is considered, it will defeat the very object of the claim made by the 2nd respondent/workman. Now, the authority has proceeded in examining the witnesses and it is at the stage of cross- examination, the Management has filed the application to decide the question of maintainability. 7. I have considered the submissions made by the learned counsel on either side and perused the material documents. 8. It is seen from the records that the 2nd respondent/workman has challenged the exparte enquiry and the same was allowed by this court and thereafter, the petitioner Management went on appeal in W.A.Nos.3974 and 3975 of 2003 along with W.A.M.P.Nos.6527 and 6528 of 2003 and this court disposed of the Writ Appeals with a direction to the petitioner Management to conduct an enquiry and ultimately decide the issue. In the meantime, a notice under Section 4(6)(b) of the Act was issued to the 2nd respondent/workman to show cause as to why the gratuity amount payable to him should not be withheld on account of the gravity of the misconduct committed by him. In the meantime, the 2nd respondent/workman filed a Gratuity Application in G.A.No.91 of 2007 claiming a sum of Rs.3,27,825/- as Gratuity. 9. A perusal of the impugned order would reveal that the petitioner Sangam filed an application before the Controlling Authority, the 1st respondent herein to try the preliminary issue as to whether the application filed by the 2nd respondent/workman in G.A.No.91 of 2007 is maintainable or not, before determining the question of payment of gratuity to the petitioner and his eligibility. 10. The learned authority under the Act, i.e. the 1st respondent herein has taken up the application in I.A.No.125 of 2008 and has rejected it on the ground that deciding the Interim Application would amount to deciding the Gratuity Application itself. It appears that the application filed by the 2nd respondent/workman is under adjudication at the stage of cross-examining the witnesses to determine the amount of gratuity under the provisions of the Act. At this stage, the Management has filed an application questioning the maintainability as to whether the application filed by the 2nd respondent/workman claiming gratuity is a triable issue or not and therefore insisted the authority to determine the preliminary issue. While analysing the case, as the Gratuity Application has been filed in the year 2007 and has reached certain stage at this point of time, if the preliminary issue is decided, it will have some consequences on the main application. Therefore, the 1st respondent has rejected the interim application filed by the petitioner on the ground that deciding the preliminary issue will have impact on the main application. The reasoning of the authority for rejecting the interim application appears to be justifiable and therefore, I do not https://hcservices.ecourts.gov.in/hcservices/ find any infirmity in the order dated 27.11.2008 passed by the 1st respondent and the writ petition deserves no merit and it has to be rejected. However, learned counsel for the petitioner Sangam would submit that the Gratuity Application may be directed to be disposed of at an early date. 11. Accordingly, the 1st respondent is directed to dispose of the Gratuity Application in G.A.No.91 of 2007 in accordance with law and on merits within a period of three (3) months from the date of receipt of a copy of this order. The writ petition is dismissed with the above direction. No costs. Consequently, connected M.P.No.1 of 2009 is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar abe To : The Assistant Labour Commissioner, Controlling Authority under the Payment of Gratuity Act, Office of the Deputy Commissioner of Labour, Coimbatore – 641 018. +1 CC to M/s. Aiyar & Dolia Advocate Sr.No. 16075 +1 CC to MR. G. Vivekanand Advocate Sr.No. 16039 +1 CC to the Government Pleader Sr.No.16544 Order made in W.P.No.2743 of 2009 KK- CO KV- 26/03/2010 https://hcservices.ecourts.gov.in/hcservices/