KARNATAKA STATE ROAD TRANSPORT CORPORATION MYSORE DIVISION MYSORE BY ITS DIVISIONAL CONTROLLER REPRESENTED BY ITS CHIEF LAW OFFICER Vs. THE DEPUTY LABOUR COMMISSIONER AND THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT REGION-2, KARMEE

JUDGEMENT

(1.) PETITIONER - KSRTC has called in question the Order dated 12.5.2010 passed in No.ALCMY/PGA/CR -15/2005 -06 by the second respondent - Assistant Labour Commissioner and Controlling Authority under the Payment of Gratuity Act, determining the total gratuity payable to the 3rd respondent at Rs. 1,11,438/ -which has been affirmed by the appellate authority i.e. first respondent herein by order dated 31.1.2011 at Annexure -H. 3rd respondent who claims to have been appointed in the year 1971 was on probationary and he was dismissed in the year 1979. On a dispute being raised by the workman before the Labour Court and said dispute having been allowed by the Labour Court directing the Corporation to reinstate the workman into service he was taken into service with effect from 1.2.1988 as probationary conductor. On attaining the age of superannuation, 3rd respondent - workman retired from service on 31.10.1999. Petitioner -Corporation determined the gratuity payable to 3rd respondent by calculating the total number of years of service rendered by him as 11 years 8 months and 4 days and deducted break in service period of 5 months 14 days and arrived at the active Service as 11 years 2 months 20 days and thereby determining the gratuity payable at Rs.39,140/ - by taking into consideration the last drawn basic pay at Rs.3,479/ -. The 3rd respondent has received the cheque for the said amount and same is not in dispute.

(2.) AFTER a period of 6 years i.e. on 24.6.2005 a claim was lodged with the 2nd respondent - Controlling Authority by the 3rd respondent contending that he had put in 25 years of active service and his actual basic pay was Rs.4,665/ - and claimed that gratuity amount of Rs. 1,16,625/ - is to be paid by the Corporation and sought for payment of difference amount of Rs.77,685/ -(Rs. 1,16,625 -00 less paid Rs.38,940 -00). The 2nd respondent - Controlling Authority determining the active service of 20 years by taking into consideration the date of initial appointment as probationary in the year 1971 till the date of superannuation in 1999 calculated total active service and accepted the plea of workman that his last drawn basic pay was Rs. 4,665/ -and accordingly, determined the total amount payable by Corporation at Rs. 1,11,438/ - which is inclusive of interest on the principal amount Rs.93,300/ -. The calculation made by Controlling Authority is as under. 4,665X20=93,300/ - vide order dated 12.5.2010 at Annexure -G.

(3.) IT is the contention of Smt. H.R. Renuka, learned counsel appearing for Corporation that impugned orders are liable to be set aside since admittedly, workman had not filed an application seeking condonation of delay in raising a claim and as such, order of the 2nd respondent - Controlling Authority is erroneous and contends that though this ground was specifically urged before appellate authority which also came to be observed by the Appellate Authority, but it did not delve upon said issue at all and as such she contends the order of the appellate authority affirming the order of the controlling authority is liable to be set aside.