: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1736 OF 2008 M/s.Jyoti Metallizing Corpn. & Anr. ....Petitioners V/s. R.S. Jadhav, Controlling Authority . Under the Payment of Gratuity . Act and others ....Respondents Mr.A.D. Shetty for the Petitioners. Mr.B.H. Mehta, AGP for Respondent Nos.1 to 3 and 43. Mr.M.D. Nagal for Respondent Nos.4 to 42. CORAM : S.J. VAZIFDAR, J. DATED : 28TH JANUARY, 2009. P.C. : 1. The impugned order has rejected the Petitioner’s appeal under the Payment of Gratuity Act, 1972. The only question raised is whether the service effected on the proprietor of the concern was proper or not. If this issue is decided in favour of the Petitioners, the matter would have to be remanded for a decision on merits. 2. The establishment was closed on 1.11.2002. The summons was served at the premises in the year 2003. This summons was served at the premises which were closed. I will presume that the proprietor was : 2 : at that time ill. The order under the Act was ultimately passed on 19.8.2003. The proprietor had remained absent. 3. It is important to note however, that the proprietor had on 24.1.2004 filed an application for review of the order dated 19.8.2003. It is pertinent to note that it was expressly contended therein that there was no delay in filing the application for review as the proprietor was allegedly not served in accordance with law. It was alleged that he came to know about the proceedings for the first time only on 17.12.2003 when he was served with the show cause notice dated 6.12.2003 pursuant to the order dated 19.8.2003. In fact in paragraph 6 of this application, the proprietor contended that there was no delay in filing the review application in view of these facts. In other words, the contention was that the service not having been affected at all in accordance with the provisions of the Act and the Rules framed thereunder, the procedure was not followed and therefore, there was no question of any delay. 4. The application for review was dismissed by an order dated 17.9.2004. : 3 : 5. The proprietor filed Writ Petition No.3289 of 2004, challenging the orders dated 19.8.2003 and 17.9.2003. By an order dated 11.4.2005, the Writ Petition was disposed of in view of the alternate remedy of an appeal being available to the proprietor. 6. It is pertinent to note that no appeal was filed by the proprietor. The proprietor expired on 31.8.2005. It is only thereafter on 25.1.2007 that the appeal, in which the order presently impugned was passed, was filed by an heir of the proprietor. 7. In the circumstance, it is clear that the point presently contended viz. that the proprietor not having been served the order dated 19.8.2003 is bad in law, was raised in the application for review filed by the proprietor. That application was dismissed. The Writ Petition challenging this order was disposed of as aforesaid with liberty to the proprietor to pursue his remedy under the Act by filing an appeal. He chose not to do so. It will be a travesty of justice now to permit the same point to be agitated again and again. 8. In the circumstances, the Writ Petition is dismissed. The operation of this order is stayed for a period of eight weeks from today to enable the : 4 : Petitioners to challenge the same.