IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.Nos.6785 and 6786 of 2008 and MP.Nos.1 and 1 of 2008 V.Jayachandran ..Petitioner in both WPs Vs 1.The Joint Commissioner of Labour, (Appellate Authority under the Payment of Gratuity Act,1972) Labour Welfare Building, 6th Floor, Teynampet, Chennai – 600 006. 2.Assistant Commissioner of Labour (Controlling Authority under the Payment of Gratuity Act, 1972) Labour Welfare Building, 6th Floor, Teynampet, Chennai – 600 006. ...Respondents 1 and 2 in both WPs 3.Seetharama Reddiar 4.Jothi Prasath. ...Respondents 3 and 4 in W.P.No.6785/2008 5.K.Raju ...3rd respondent in W.P.No.6786/2008 Prayer :Petitions under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the records and quash the order dated 25.1.08 passed in P.G.A.Nos.49 and 48 of 2007 on the file of the 1st respondent Joint Commissioner of Labour, Chennai confirming the order dated 21.3.06 passed in P.G.224 and 225 of 2004 respectively on the file of the 2nd respondent, Assistant Commissioner of Labour Chennai. For Petitioner : Mr.Ravi For Respondents : Mr.R.Murali,G.A. For R1 and R2 C O M M O N O R D E R The petitioner in both the writ petitions is one and the same person. He is the Proprietor of Sri Rajarajeswari Bus Service at Vridhachalam. The petitioner challenges the order of the Appellate https://hcservices.ecourts.gov.in/hcservices/ Authority under the Payment of Gratuity Act, 1972 (R1) made in P.G.Nos.49 and 48 of 2007 dated 25.01.2008 respectively. 2. Both the writ petitions were admitted on 19.03.2008. Pending the writ petitions, an interim injunction was granted restraining the first and second respondents from permitting the contesting respondents from withdrawing any portion of the amount lying in deposit with the second respondent Controlling Authority. 3. The case of the petitioner was that he was a transport operator owning two buses plying in and around Vridhachalam. His father late Venkatasubramaniam Chettiar was also a bus operator. Since Vridhachalam is known for the Goddess Rajeswari, he and his father named after the transport as Sri Rajarajeswari Bus Service. His brothers were also carrying on the Motor Transport business and were having the same name. But they registered the business separately under the Motor Transport Workers Act. 4. In W.P.No.6785 of 2008, the contesting third respondent filed gratuity application in P.G.No.224 of 2002 against the 4th respondent as well as against the petitioner’s father Venkatasubramaniam Chettiar. He claimed gratuity on the basis of his continuous employment with the 4th respondent from 1969 to 1988 and thereafter, with Venkatasubramaniam Chettiar from 1988 to 1996, thereby rendered total service of 25 years. The petitioner’s father Venkatasubramaniam Chettiar died on 25.01.2004. The petitioner and other legal heirs numbering 6 were brought on record as legal heirs. On notice from the Controlling Authority, the petitioner entered appearance as the legal heir of his father and contested the proceedings. He stated that he has nothing to do with the business carried on by his late father as well as by the third respondent. In his evidence, the third respondent admitted that he had filed the case only against 4th respondent and Venkatasubramaniam Chettiar and he was employed only with the 4th respondent from 1969 to 1988 and thereafter with Venkatasubramaniam Chettiar from 1988 to 1996. The petitioner represented the case only as the legal heir and not as an Employer. 5. The Controlling Authority (R2) by an order dated 21.03.2006 found that the third respondent was only employed with Late Venkatasubramaniam Chettiar as well as the 4th respondent, in their transport service Sri Rajarajeswari Bus company. But inspite of the said finding, the second respondent computed a sum of Rs.25,139/- as payable to the third respondent together with interest at the rate of 10% from the date of his retirement. Aggrieved by the said order, the petitioner preferred an appeal to the 1st respondent Appellate Authority in P.G.A.No.49 of 2007. The first respondent by an order dated 25.01.2008 dismissed the appeal and directed the payment of amount. It is against that order W.P.No.6785 of 2008 came to be filed. 6. In W.P.No.6786 of 2008, the case of the petitioner was that in P.G.No.225 of 2002, the petitioner was made as a legal representative of late Venkatasubramaniam Chettiar and the contesting third respondent claimed gratuity for rendering 24 years https://hcservices.ecourts.gov.in/hcservices/ of service amounting to Rs.55,742/-. The petitioner contested his claim and stated that he had employed only 5 persons. The petitioner filed the permits for the two buses, which were marked as Exs.M1 and M2 to show that there were two buses owned by him, the attendance registers Exs.M3 and M4 to show that there are only 5 employees and the name of the third respondent found in Ex.M4. He also filed Exs.M5 and M6, attendance register and salary register. The petitioner contended that he had nothing to do with the father’s business. Notwithstanding the same, the Controlling Authority found the petitioner was liable to pay the amount and hence by an order dated 21.03.2006, directed the payment of Rs.26,188/- together with interest at the rate of 10% per annum. The presumption that Motor Transport undertaking will employ minimum 10 persons was unwarranted and by invoking Section 2A of the EPF Act, it cannot be held that the entire establishment is a single establishment. The petitioner’s appeal in P.G.No.48 of 2007 came to be dismissed by the Appellate Authority on 25.01.2008 and hence the writ petition. 7. The controlling Authority in his order examined the materials before him including the oral evidence and found that the Management witness were not telling the truth and whatever questions asked, they were stating that they can give the answer only after looking into the records. As per the Motor Transport Workers Act for running a bus, minimum of 2 Drivers and 2 Conductors are required on 2 shift basis as per Section 13 and for the purpose of granting necessary leave, it requires one more spare Driver and Conductor. Therefore, if there are two vehicles, operated by Motor Transport owner, they may require 7 drivers and 7 Conductors and further as per the legal requirement in the work shop, there must be a Mechanic and a Cleaner and for maintaining the office, there must be a Manager and Helper and without 20 workers, no Motor Establishment can run. Further Enforcement Officer from the office of the PF Commissioner in his inspection found that there were 28 workers and there was default in payment of Provident Fund. If during the year 1991 there were 28 workers in the establishment the Gratuity Act will apply even if there are 10 workers in that establishment. Though it was claimed that there was a partition in the house and out of 9 buses run by the father each have their own share, but at the same time, they were unable to state in whose name the vehicles were running. It is on the basis of these materials, the authority disbelieved the evidence of the petitioner and found that the establishment namely Rajarajeswari Transport is covered by the provisions of the Act and the petitioner being incharge of the establishment bound to pay the amount. In the appeal, very same contentions were raised by the petitioner. The Appellate Authority found that even though there may be several legal heirs, Rajarajeswari bus service and its 2 buses are under the control of the petitioner. When the petitioner is incharge of the Management, it is unnecessary for the worker to pursue the claim against the other legal heirs and it is the establishment will have to pay the gratuity on the retirement of its employees. It was admitted that in respect of one bus, there were 6 workers and in other bus there were 4 workers. Therefore, https://hcservices.ecourts.gov.in/hcservices/ the Act automatically applies to the petitioner and on the basis of records, salary received by the contesting respondents were ascertained. 8. Mr.Ravi of M/s.Gupta and Ravi, learned counsel for the petitioner made elaborate submissions contending that the order passed by the respondents are invalid and liable to be interfered with. He also admitted that if the contesting respondents had worked in his company, he is liable to pay gratuity only for that period and the contesting respondent must make their claim against other legal heirs of his father’s business. 9. However, this Court is not inclined to entertain the writ petitions. The petitioner was unable to convince both the authorities about the independent business that they are carrying on. The contention that he had only 2 buses and employed less than 10 workers will not take away the liability to pay the gratuity to the 2 contesting respondents. The contesting respondents are only employed by the bus company and not by any of the sons of late Venkatasubramaniam Chettiar. The transport company is continued to be operated in the name of Rajarajeswari bus service. When opportunity was given to the petitioner, he could not satisfy the authorities by letting in proper evidence. Hence, this Court is not inclined to entertain the writ petitions on the grounds urged before this Court. 10. In the light of the above, both writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To 1.The Joint Commissioner of Labour, (Appellate Authority under the Payment of Gratuity Act,1972) Labour Welfare Building, 6th Floor, Teynampet, Chennai – 600 006. 2.The Assistant Commissioner of Labour (Controlling Authority under the Payment of Gratuity Act, 1972) Labour Welfare Building, 6th Floor, Teynampet, Chennai – 600 006. 2 ccs To M/s.Gupta & Ravi, Advocate, SR.11456 & 1157 1 cc To The Government Pleader, SR.8285 W.P.Nos.6785 and 6786 of 2008 BVN (CO) RH (2.3.11) https://hcservices.ecourts.gov.in/hcservices/