LAMBHA BALIAKAKA PROPERTY TRUST Vs. TULSABEN DHARAMBHADUR SHAHI

JUDGEMENT

(1.) THE petitioner, president of a property trust, has invoked Articles 226 and 227 of the Constitution for a writ of certiorari or any other appropriate order, writ or direction to set aside the order dated 10. 4. 2006 in Gratuity Application No. 29 of 2005 of the Controlling Authority at Ahmedabad and the order dated 24. 2. 2007 dismissing the appeal preferred therefrom with the direction to quash the consequential notice of recovery of the amount of gratuity awarded to respondent No. 1 herein.

(2.) SIMPLE facts of the case are that respondent No. 1 had claimed gratuity from the petitioner on the basis that her husband had joined service as watchman since 2. 1. 1971 and, after he was discharged on 26. 2. 2001, he had passed away on 22. 2. 2003. On the basis of his last drawn salary of Rs. 2,000/- per month and service of 30 years, she claimed Rs. 34,650. 92 ps. by way of gratuity. An application in Form 'k' prescribed under the Payment of Gratuity (Gujarat) Rules, 1973 (for short "the Rules") was submitted to the petitioner on 22. 9. 2005 and an application in Form 'n' under the same Rules was submitted on 14. 10. 2005 to the Controlling Authority under the Payment of Gratuity Act, 1972 (for short, "the Act" ). Thumb impressions of the applicant were put on the said applications and an affidavit dated 18. 1. 2006 was submitted before the Controlling Authority to, inter alia, submit that she was the widow of the deceased employee, that she was the only heir of the deceased, her name was entered as such in respect of other assets of the deceased and she was maintaining the family of her husband. It was also stated by her that she was earning her livelihood by doing labour work and maintaining three sons, namely, Gangaram aged 30, Rajesh aged 26 and Khemraj aged 15, even as the former two sons were living separately. She categorically stated that she had not remarried and did not propose to remarry. However, an affidavit dated 23. 2. 2006 of Kanubhai alias Rajeshbhai claiming to be a son of the deceased was filed by the employer with the statements, inter alia, that he was the son of another wife of the deceased, that he had learnt that the respondent-widow had remarried and was living with her second husband; that he was employed in the place of his father and he and his two other brothers were the legal heirs of the deceased workman. He claimed ignorance about the whereabouts of the husband with whom the respondent-widow had remarried. The petitioner-employer also, on the same day, filed a detailed written statement raising objections about jurisdiction, applicability of the Act, status of the widow and non-jointer of the other heirs; and disputing the calculation of the amount claimed as also requesting to allow cross-examination of the widow.

(3.) BEING aggrieved by the aforesaid order, the petitioner preferred an appeal, after delay of about three months and 15 days, and raised the grievances, inter alia, that the Controlling Authority had ignored the affidavit of the son of the deceased, that it was required to determine the heirs and their share, that a will, succession certificate or an order of competent court was required to be placed on record before ordering payment of gratuity to any particular heir, that the factual basis of the claim of gratuity were not admitted by the appellant and were required to be proved and that the advocate had not given consent to payment of gratuity as recorded in the order of the Controlling Authority. Thereafter, a so-called brief note of the arguments was submitted to the Appellate Authority before the impugned order dated 27. 2. 2007 was made rejecting the appeal mainly relying upon the affidavit of the widow and the fact that the appeal was preferred when Controlling Authority had already issued a recovery certificate for recovering the amount as arrears of land revenue.