Karnataka High Court
The State Of Karnataka vs Smt Madevi W/O Siddaiah on 4 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
W.P. No.47591/2011(L-PG)
BETWEEN :
1 THE STATE OF KARNATAKA
REP BY TIS SECRETARY
DEPARTMENT OF ANIMAL HUSBANDRY
AND FISHERIES VIKASA SOUDHA,
BANGALORE 560 001
2 THE VETERINARY MEDICAL OFFICER,
PALAHALLY SRIRANGAPATNA TALUK
MANDYA DISTRICT, MANDYA ...PETITIONERS
( BY SRI. JAGADEESH MUNDARAGI, AGA)
AND :
1 SMT MADEVI W/O SIDDAIAH
R/AT C/O GIRIGAMMA
BASAVESHWARAPURAM
RAILWAY STATION ROAD,
K R SAGAR
2 THE ASSISTANT LABOUR COMMISSIONER,
AND CONTROLLING AUTHORITY
UNDER PAYMENT OF GRATUITY ACT
MYSORE DIVISION
MYSORE ...RESPONDENTS
2
( BY SMT.MADEVI, ADV., FOR R1)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF
INDIA WITH A PRAYER TO CALL FOR RECORDS AND
QUASH THE JUDGEMENT DATED 16.03.2011 IN
CASE NO.ALCM/PGA/CR/2008 PASSED BY THE R2,
ASST. LABOUR COMMISSIONER, & CONTROLLING
AUTHORITY UNDER PAYMENT OF GRATUITY ACT,
MYSORE DIVISION MYSORE VIDE ANNEXURE-A, BY
ALLOWING THIS W.P.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY THE COURT MADE
THE FOLLOWING:
ORDER
Heard Sri.Jagadeesh Mundaragi, learned Additional Government Advocate appearing for petitioners. Respondent No.1 though served is un- represented. Respondent No.2 is the Assistant Labour Commissioner and Controlling Authority under the Payment of Gratuity Act who has passed the impugned order, at Annexure-A.
2. First respondent herein filed an application seeking payment of gratuity on 20.06.2008 under the 3 Provisions of Payment of Gratuity Act, 1972, before the second respondent. Second petitioner herein alone was arrayed as respondent before the Controlling Authority in the application filed by first respondent which came to be numbered as PGA/CR-98/2008. Controlling Authority by order dated 16.03.2011, Annexure-A allowed the application and directed second petitioner herein to pay a sum of Rs.79,346/- towards gratuity. Aggrieved by this order above writ petition is filed by the petitioners before this Court without exhausting alternate remedy of appeal available under the Act on the ground that the impugned order passed by the second respondent is without jurisdiction.
3. It is submitted by the Additional Government Advocate that under identical circumstances where respondents / employees instituted a claim against Range Forest Officer and 4 Deputy Conservator of Forest without making State of Karnataka represented by its Secretary as party and on such application being allowed same came to be set aside by order of Division Bench of this Court in the case of Assistant Executive Engineer Vs. Mahadevaiah, reported in ILR 2004 Kar. 225 and submits that said order passed by the Division Bench has been followed by this Court in W.P.No.833/2007 disposed off on 17.09.2008 whereunder order passed by the authority constituted under the Minimum Wages Act, 1948, came to be set aside on the ground that State was not made a party and matter was remitted back to the said authority for adjudication afresh by impleading State as a party and contends that principles laid down in these two judgments is squarely applicable to the facts of the instant case also since first respondent herein had filed application for grant of payment of gratuity without making State as a party before the controlling 5 authority and contends that 'employer' as defined under Section 2(e) of the Industrial Disputes Act, 1948, is analogous to the definition of the 'employer' as defined under Section 2(f) of the Payment of Gratuity Act and as such contends that in the absence of state being made a party impugned order cannot be sustained and prays similar order as held in above referred cases be passed in the present case also.
4. Having regard to the definition of the term 'employer' as defined under Section 2(f) of Payment of Gratuity Act it would emerge that State was required to be made as a party in the proceedings before the Controlling Authority - second respondent herein so that State would have had an opportunity to defend its rights and put forth its plea including the maintainability of claim. Admittedly, State was not made a party in the proceedings PGA/CR-98/2008 6 namely in the application filed by the first respondent on 20.06.2008 before the Controlling Authority - second respondent herein. In view of the said fact the State did not have knowledge of the proceedings before the second respondent. As such it cannot be held that impugned order would be binding on the first petitioner herein i.e., the State.
5. Division Bench of this court in the case of Asst. Executive Engineer vs. J.Mahadevaiah & Another reported in ILR 2004 KAR 225 in identical circumstances, though under the provisions of the Industrial Disputes Act, has held as follows:
"If the 'employer' as defined is not impleaded and only a subordinate who is not authorised to represent the State/Local Authority is impleaded, the State/Local Authority will be entitled to challenge the award as not binding on them as they did not have an effective opportunity to defend the claim, and in some cases, they may also contend that the Award is not executable against them. In that event the Union or the workmen concerned may have to establish that the concerned 7 Authority authorised to represent the State/Local Authority had notice and knowledge of the proceedings and had in fact contested the matter before the Labour Court through the person impleaded as party."
6. In view of the law laid down by the Division Bench of this Court in Mahadevaiah's case referred to supra and followed by this Court in W.P.No.833/2007 (L-MW) disposed off on 17.09.2008 under the Minimum Wages Act and also subsequently followed in W.P.No.41852/2011 (L-PG) disposed off on 18.04.2012 the principles laid down therein would squarely apply to the facts and circumstances of the case the order impugned in the present writ petition cannot be sustained in the absence of the State having not been made party to the proceedings.
In the result, I pass the following:
ORDER i. Writ petition is hereby allowed. ii. Order dated 16.03.2011 (Annexure-A) in case 8 No.ALCM/PGA/CR-98/2008 passed by the second respondent is hereby set aside. Matter is remitted back to second respondent for consideration afresh after affording an opportunity to both the parties including permitting the parties to lead evidence, if any sought for.
iii. First petitioner herein is deemed to have been made as a party in the proceedings No.ALCM/PGA/CR-98/2008 i.e., in the claim petition filed by the first respondent before the second respondent authority.
iv. Second respondent shall dispose off the claim petition within an outer limit of four months from the date of appearance of the parties. v. All contentions of both the parties are left open. Ordered accordingly.
Sd/-
JUDGE DR