IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 6903 of 2008 DATE OF DECISION : 26.08.2009 National Buildings Construction Corporation Limited, Jammu .... PETITIONER Versus The Appellate Authority, Chandigarh and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Bharat Bhushan Sharma, Advocate, for the petitioner. Mr. T.P.S. Bhatti, Advocate, for respondent No.3. * * * SATISH KUMAR MITTAL , J. The petitioner Corporation has filed the instant petition under Articles 226 and 227 of the Constitution of India for quashing the order dated 13.10.2003, passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as `the Act'), whereby the petitioner Corporation was directed to make payment of Rs. 6,960/- on account of Gratuity to respondent No.3 (workman) with interest at the rate of 10% per annum from 20.11.1997 till the date of payment. The petitioner Corporation has also prayed for quashing the order dated 26.3.2004, passed by the Controlling Authority, whereby the application filed by the petitioner CWP No. 6903 of 2008 -2- Corporation for review of the aforesaid order dated 13.10.2003, has been dismissed. The order dated 27.11.2007 passed by the Appellate Authority has also been challenged. I have heard counsel for the parties. In the present case, respondent No.3-workman had worked with the petitioner Corporation as Chowkidar from 13.9.1989 to 26.7.1997. On 26.7.1997, his services were terminated. When the petitioner Corporation did not pay the amount of Gratuity to the respondent-workman, which it was liable to pay under the Act, he filed an application on 28.11.1997 under the Act for directing the petitioner Corporation to make the payment of Gratuity. The petitioner Corporation contested the said application and denied the relationship of master and servant. The Controlling Authority, after taking into consideration the evidence led by both the parties, came to the conclusion that the relationship of master and servant has been proved. It was also found that the last draw wages of the respondent-workman was Rs. 1510/- per month. While keeping in view the service period of the respondent-workman, the amount of Gratuity was worked out as Rs.6,960/-. Accordingly, a direction was issued to the petitioner Corporation to make the said payment to the respondent-workman within one month from the date of order. On 9.12.2003, the petitioner Corporation filed a review application before the Controlling Authority to review the said order dated 13.10.2003. Vide order dated 26.3.2004, the said application was dismissed, CWP No. 6903 of 2008 -3- as there was no provision for review of its order by the Controlling Authority. After that, instead of filing an appeal under Section 7 (7) of the Act against the order dated 13.10.2003 passed by the Controlling Authority, the petitioner Corporation filed an appeal against the order dated 26.3.2004, whereby its review application was dismissed. The Appellate Authority dismissed the said appeal on two grounds. Firstly, that against the order of dismissal of the review application, no appeal lies under Section 7 (7) of the Act. Secondly, that even if it is taken that the appeal filed by the petitioner Corporation was maintainable, the same could not be entertained, as the petitioner Corporation had failed to comply with the mandatory provision of second proviso to Section 7 (7) of the Act, which provides that no appeal filed by the employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of Controlling Authority to the effect that the appellant has deposited with him an amount equal to the amount of Gratuity or deposits the same with the Appellate Authority. After hearing counsel for the parties, I do not find any illegality in the said order. Admittedly, against the order of the Controlling Authority, the aggrieved person can file an appeal under Section 7 (7) of the Act within a period of one month. Against the order dated 13.10.2003, no appeal was filed within the said prescribed period. Concededly, the petitioner Corporation filed an appeal on 10.6.2004 against the order dated 26.3.2004, whereby the application of the petitioner Corporation for reviewing the order dated 13.10.2003 was dismissed by the Controlling Authority. Against CWP No. 6903 of 2008 -4- such an order, no appeal has been provided under the Act. In my opinion, after the dismissal of the review application, the petitioner Corporation should have filed an appeal against the order dated 13.10.2003, passed by the Controlling Authority, with an application for condonation of delay. In the instant case, neither the order dated 13.10.2003 was challenged by filing an appeal nor any application for condonation of delay was filed. Therefore, the Appellate Authority has rightly dismissed the appeal of the petitioner Corporation against the order dated 26.3.2004. Regarding the non-deposit of the amount of Gratuity, as ordered by the Controlling Authority, it has been observed in the order that “Admittedly, the appellant has not produced any certificate in token of proof for depositing the ordered amount of gratuity.” Counsel for the petitioner Corporation argued that this observation is factually incorrect. He referred to the receipt dated 9.6.2004, copy of which has been annexed with the petition as Annexure P-8, which was issued by the Labour-cum-Conciliation Officer, Jalandhar-II to the effect that a demand draft for Rs. 6,960/- was received by the petitioner Corporation on 9.6.2004. From this receipt, it is not clear as to in whose favour the demand draft was issued. As per the provisions of the Act, the amount was to be deposited before the Controlling Authority and not before the Conciliation Officer. It was specifically mentioned by the Appellate Authority that admittedly, no certificate was produced. Therefore, I do not find any ground to interfere in the said finding. Even otherwise, the amount of gratuity is only Rs. 6,960/- CWP No. 6903 of 2008 -5- and a positive finding was recorded by the Controlling Authority that the respondent-workman has worked with the petitioner Corporation for 7 years 10 months and 13 days and his last pay drawn was Rs. 1,510/- per month. Though the relationship of master and servant was denied by the petitioner Corporation, but since no record was produced by it, a finding was recorded that the relationship of master and servant between the petitioner Corporation and the respondent-workman has been proved. In view of this finding and keeping in view the meager amount of Rs. 6,960/-, involved in the case, I do not find any ground to interfere in the impugned order dated 13.10.2003, passed by the Controlling Authority as well as the order dated 27.11.2007, passed by the Appellate Authority, in exercise of the writ jurisdiction of this Court. Dismissed. August 26, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE