IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10599 of 2006 M/S MAGADH HOTEL Hotel Gali, Frazer Road, Patna, P.S. Kotwali, District Patna through its Managing Director Sri Anil Kumar Singh, son of late Babu Bachu Singh, resident of village Pachaura, P.S. Harnaut, District Nalanda … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Labour Department, Patna, 2. The Secretary, Labour Department, New Secretariat, Patna, 3. The Deputy Labour Commissioner-cum-Controlling Authority, Patna Division, Bailey Road, Patna, 4. The Labour Commissioner-cum-Appellate Authority, Bihar, Patna, 5. Sri Nathuni Singh son of Sri Bahadur Singh, resident of village Salempur, P.S. Hajipur, District Vaishali… .. … Respondents For the Petitioner: Mr. Shailendra Kumar Jha, Advocate For the State: Mr. Anil Kr. Upadhyay, SC 20 ----------- 2 27.06.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks quashing of the order dated 20.07.2006 passed by the Labour Commissioner-cum- Appellate Authority, Bihar, whereby he has dismissed the appeal preferred by the petitioner against the order dated 03.06.2006 passed by the Deputy Labour Commissioner- cum-Controlling Authority, Patna in G.A. No. 6/2003. Learned counsel for the petitioner submits that without considering the objection of the petitioner, the 2 Deputy Labour Commissioner-cum-Controlling Authority, Patna Division has allowed G.A. No. 6/2003 and has ordered for payment of Rs. 28,240/- being gratuity payable to the respondent no. 5 along with 15% compound interest within thirty days from the date of the receipt of the order. It has further been submitted that the petitioner preferred an appeal before the Labour Commissioner-cum-Appellate Authority, Bihar, however, the same has also been dismissed without considering the merit of the case of the petitioner vide Annexure 2 dated 20.07.2006. It is also submitted on behalf of the petitioner that there has not been any relationship of employee and employer between the petitioner and the respondent no. 5. The respondent no. 5, in fact, was an employee of Magadh Hotel, which was later on purchased by the petitioner on 22.02.1991 and then he started the business of hotel in the name and style of Pradeep Hotel, however, on sympathetic ground he allowed the respondent no. 5 to live there and paid him some paltry amount. Learned counsel for the State submits that finding has been recorded by the Deputy Labour Commissioner- cum-Controlling Authority, Patna Division that the 3 respondent no. 5 has been employee of the petitioner for 33 years and 5 months till 31st of May, 2003 and, thus, was entitled for payment of the amount of gratuity to the tune of Rs. 28,240/- and in case of non-payment of the amount within time, the authority has rightly directed the petitioner for payment of the interest. From perusal of the order, as contained in Annexure 1, it appears that the petitioner, who was opposite party before the concerned authority, had appeared and cross-examined the respondent no. 5 and, thereafter, the matter was adjourned several times due to his absence. Moreover, when he remained absent on several occasions, the same was heard and decided upon consideration of the materials available on record. There is no whisper in the writ application to explain as to why the petitioner remained absent for such a long period during the proceeding. From perusal of the appellate order, as contained in Annexure 2, it appears that the appeal was dismissed as the petitioner did not deposit the amount equal to the amount of gratuity, which was mandatorily required for maintaining the appeal as per the proviso to Section 7 of the Payment of Gratuity Act, 1972. 4 Before this Court also, learned counsel could not point out any illegality in the impugned order passed even by the original authority. No document has been annexed to show as to what were the terms and conditions of the purchase of the concerned Hotel and to show that the respondent no. 5 never worked in his Hotel as an employee and also to refute the claim of the respondent no. 5 that he had worked till 2003 in the concerned Hotel and lastly has been paid an amount of Rs. 1765/- per month. Nothing has been brought on record also to show that the proprietors of the Hotel Pradeep and Magadh are different. From the conduct of the petitioner it appears that he has been evasive even before the original authority and he has not deposited the mandatory amount even before the appellate authority for consideration of the appeal. Neither the copy of objection, which has been filed before the Deputy Commissioner concerned nor the copy of the memorandum of appeal filed before the appellate authority has been brought on record to show as to what were the objections, which were required to be considered by the authorities and have not been considered. The petitioner has not also been able to establish his statement that the 5 respondent no. 5 was merely allowed to remain in the aforesaid Hotel and was being paid a paltry amount as a good-will gesture. As a result, this writ application fails and is dismissed. SC (Dr. Ravi Ranjan, J.)