WP/3880/2010 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3880 OF 2010 Business Combine Ltd. ... Petitioner V/s. Murlidhar Karbhari Mahale & Anr. ... Respondents Mr. R.V. Paranjpe for the Petitioner. Mr. Neel Helekar for Respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 19TH JULY, 2010 P.C.: 1. The Writ Petition has been filed against the order dated 16th December, 2008, passed by the Assistant Labour Commissioner cum Controlling Authority, Nasik. The Controlling Authority has directed the petitioner-Company to pay an amount of Rs.2,23,269/- as gratuity along with the interest at the rate of 10% per annum from 16.9.2003 till the date of payment. 2. The contention of the petitioner-Company is that due to certain difficulties faced by the petitioner-Company, it was WP/3880/2010 2 not possible for the petitioner-Company’s representative to be present before the Controlling Authority after they appeared initially. It is, therefore, contended that the order of the Controlling Authority should be set aside and an opportunity should be given to the petitioner-Company to contest the application on merits. 3. The petitioner-Company has not approached the appellate Court because there was a delay. The order passed by the Controlling Authority is dated 16.12.2008. The appeal ought to have been filed within 30 days which has not been done. The writ petition has been filed some time in January, 2010 only after the recovery certificate was issued on 16.6.2009. 4. It is contended on behalf of the petitioner-Company that the Controlling Authority has not taken into account the fact that there was a break in service of the respondent No.1- workman and his fresh tenure started from 1.12.1997. According to the petitioner-Company, the respondent No.1- workman was paid his gratuity till his services were terminated and that amount would have to be set off against the amount awarded by the Controlling Authority. Reliance is placed on the letter dated 5.5.1998 to substantiate this contention. This letter is addressed to the respondent No.1- WP/3880/2010 3 workman by the petitioner-Company in which they have stated that, on account of settlement reached between Kamgar Sabha, which was the recognized Union and the petitioner-Company, they had agreed to pay an amount of Rs.4,05,000/-. This amount was to be paid in respect of the past liability regarding the provident fund and gratuity upto the period from 30.11.1997 and thereafter the workman was to be taken in employment as a fresh hand, effectively from 1.12.1997. 5. Mr. Helekar rightly takes objection to this submission. He points out that this letter addressed to the workman has not been received by him. Moreover, he states that the Kamgar Sabha has no authority to sign any settlement on his behalf. According to him, the petitioner-Company, in fact, had pleaded in the Complaint (ULP) No.122 of 1982 before the Labour Court, Nashik, that when he was terminated from service, the workman had illegally instigated the other workers to agitate against the recognized Union. He points out that in the evidence as well it has been established that action was taken against the workman because he was acting in derogation of the interest of the Kamgar Sabha and in fact wanted to join another Union. WP/3880/2010 4 6. In these circumstances, it is difficult to accept that the workman had authorized the Kamgar Sabha to settle the dispute. In any case, the question of settlement would not arise as the respondent No.1-workman had an order in his favour which was passed in the year 1993 in Complaint (ULP) No.122 of 1982. In this order, the Labour Court, Nasik, had directed that the workman should be reinstated with continuity of service and consequential benefits including full back wages. The Labour Court also directed the petitioner- Company to deduct the amount payable as gratuity of Rs.10,757.44 from the amount of back wages. In my view, therefore, the question of settlement of dispute did not arise as the workman was reinstated in service by an order of the Court with continuity and back wages and other consequential benefits. 7. In my view, therefore, Mr. Helekar is right in contending that no case has been made out by the petitioner- Company for interference in the order dated 16th December, 2008, passed by the Assistant Labour Commissioner cum Controlling Authority, Nasik, much less, remanding back the matter to the Assistant Labour Commissioner cum Controlling Authority, Nasik, to decide it afresh. WP/3880/2010 5 8. The Writ petition is rejected. 9. The amount may be withdrawn by the respondent No.1- workman. 10. An application is made by Mr. Paranjpe, the learned Advocate for the petitioner-Company, for a stay of this order. The order is stayed for a period of four weeks from today. .....