RATTAN BROTHERS Vs. APPELLATE AUTHORITY

JUDGEMENT

(1.) Challenge in the present writ petition is to order dated 3.12.2007 (Annexure P/8) whereby respondent no.3 has been held entitled to a sum of Rs. 46153/- as gratuity along with interest at the rate of 10% from the date of filing of application. Thereafter review application was filed which was dismissed on 22.9.2008 (Annexure P/9). The said order was further upheld in appeal on 21.5.2009 (Annexure P/11) by the Appellate Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as "the Act")..

(2.) A perusal of the paper-book would go on to show that initially the application was filed on 23.6.2003 (Annexure P/2) by the respondent no.3- workman that his services had been terminated on 20.6.2003 and he was entitled to gratuity as he had worked since January, 1983. His last drawn wages were Rs. 4000/- and a sum of Rs. 48510/- was claimed in the application. The defence of the petitioner-management was that he was not on the rolls and was only a stitcher who used to get material to take to his home to stitch with the help of his family members. There was no relationship of master and servant between the workman and the management. Initially the application was dismissed on the ground that there was nothing on record to show that he had continuous service of 21 years and the Act was not applicable. The respondent- workman preferred an appeal which was allowed on 28.8.2006 (Annexure P/5) and the matter was remanded on the strength of the judgment of the Apex Court in Gopal Krishnji Ketkar Vs. Mohamed Haji Latif and others, 1968 AIR(SC) 1413by drawing adverse inference against the petitioner-management due to non production of record. On remand, the Controlling Authority noticed that the management did not file any document or evidence to show that the applicant used to take material at his home for manufacturing of footballs on piece rate basis and neither produced any record in the form of attendance/wages register, cash book, ledger, voucher which were in their possession to prove their case. Accordingly, it was held that the respondent-workman was an employee and in continuous service for the said period and entitled for gratuity to the tune of Rs. 46153/- along with 10% interest from the date of filing of the application. Thereafter, the review application was filed on the ground that proper opportunity has not been given which was rightly rejected on the ground that the proceedings had remained pending for more than one year and the management could not be allowed to take advantage of its own fault. The appeal was rejected on 21.5.2009 (Annexure P/11) on similar grounds. Resultantly, the present writ petition was filed.

(3.) Counsel for the respondent-workman submits that in pursuance of the order dated 3.12.2007 (Annexure P/8) passed by the Controlling Authority payment of principal amount has already been made on 22.7.2009 and this fact was not brought to the notice of this Court when order of stay was passed subsequently on 9.11.2009.