Karnataka High Court
Bangalore Metropolitan Transport ... vs The Deputy Labour Commissioner And The ... on 7 January, 2008
Equivalent citations: 2008 LAB. I. C. (NOC) 555 (KAR.) = 2008 (2) AIR KAR R 328, 2008 (2) AIR KAR R 328
Author: Subhash B. Adi
Bench: Subhash B. Adi
ORDER Subhash B. Adi, J.
1. This writ petition is directed against the older passed by the first respondent dated 31.1.2007, allowing the appeal of the legal representatives of the deceased respondent No. 2.
2. The deceased respondent had filed an application before the Controlling Authority interalia, claiming for payment of gratuity, alleging that, he had worked for 37 years continuously and he is entitled for gratuity amount of Rs. 2,64,239/- and out of which balance of Rs. 1,50,050/- is not paid.
3. The Controlling Authority after hearing both the parties found that the claim petition is not accompanied by the application for condonation of delay, nor the claim petition shows any sufficient cause for making delayed claim. The said older of the Controlling Authority was called in question by the legal representatives of the deceased workman. The Appellate Authority allowed the appeal holding that, no separate application is necessary for condoning the delay and observed that the Controlling Authority has power to condone the delay. Accordingly, allowed the claim petition and directed the Corporation to pay the balance of the claim to the tune of Rs. 57,483/ along with interest
4. Learned Counsel for the petitioner submits that, as per the claim petition, the deceased workman claimed that, he had joined the service in the year 1965 and retired in the year 2002 and the claim petition is filed in the year 2005 i.e., nearly after three years. In this regard, she relied on the provisions of Rule 7 of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as the Rules') and submitted that the respondent was required to make an application for payment of gratuity within 30 days from the date on which it becomes payable in terms of Rule 7 Sub-rule (1) of the Rules. In case if there is a delay in making the application, the said claim should have been accompanied by an application showing sufficient cause for the delayed claim. In this regard, she relied on two judgments reported in 1995(1) LLJ page 348 in the matter of M. Devarajulu v. Asst. Commissioner of Labour and Ors. 2007(3) LLJ 106 in the matter of Dhanda, R.P. v. Regional Manager UCO Bank, Mumbai and submitted that, when claim is made before the Controlling Authority, it should be accompanied with an application for condonation of delay, as under Rule 10, the claim petition is required to be made within 90 days from the date of cause of action. Relying on these provisions and the judgments, learned Counsel further submitted that, the Controlling Authority considering the fact that the claim petition did not disclose the sufficiency of cause for the delay, has rejected the same. However, the Appellate Authority without considering the provisions of Rule 7 and Rule 10 has allowed the appeal on merit and further submitted that the said order of the Appellate Authority is illegal and contrary to Rule 7 and 10 of the Rules.
5. Learned Counsel for the legal representatives of the respondent No. 2 submitted that, Rule 7 only requires that a claim has to be made to the employer within stipulated time. If it is not made, the claimant has to show the cause for delayed application. There is no provision, which requires that the claimant to make a separate application for condonation of delay under Rule 7. He relied on Rule 10 and submitted that the power is conferred on the Controlling Authority to condone the delay, if the Controlling Authority finds sufficient cause, it can condone the delay. He further submitted that, the Appellate Authority taking into consideration the provisions of Rule 10 has allowed the appeal.
6. Learned Government Advocate for respondent No. 1 submits that, Rule 7 does not require any separate application to be filed for the purpose of condonation of delay. It is only an application for payment of gratuity, which statutorily a workman is entitled and in case if the payment is not made, the cause of action accrues to the workman to make a claim petition before the Controlling Authority and the Controlling Authority has power to condones the delay.
7. "Whether the question of delay required to be adjudicated before considering the matter on merit, and whether separate application is necessary for condonation of delay?"
8. In this case, the facts, which are not in dispute, are; The deceased respondent retired on 18.2.2005 and he issued legal notice on 29.1.2005 to the Corporation, for payment of gratuity and thereafter, a claim petition was filed before the Controlling Authority. The claim petition is not accompanied by any application for condonation of delay nor the said claim petition discloses any cause for the delayed claim.
9. Rule 7 confers right on the employee, who is eligible for payment of gratuity, to make an application within 30 days from the date on which the gratuity becomes payable in Form T. If there is any delay in making the claim, Rule 7 Sub-rule (5) confers power for accepting such delayed application, if sufficient cause is shown. Reading of Rule 7 shows that, an application is required to be made to the employer for payment of gratuity and even in case of delay, the employee is entitled to make an application showing the sufficiency of cause. Rule 7 does not by itself require a separate application to be made to the employer. However, in the case of delayed claim, the employee is required to show sufficient cause in order to entertain an application for the said claim. Rule 7 Sub-rule (1) specifically says that an application for claim of gratuity has to be made within 30 days. If 30 days' limitation is prescribed, the delayed claim can be entertained only on showing sufficient cause for the delay and in consonance with the same, Rule 7 Sub-rule (5) requires, that the employee to show sufficient cause for the delay. In the event if the said application is not considered, Rule 10 confers power on the employee to seek redressal before the Controlling Authority by making an application within 90 days from the day on which the cause of action accrued to the employee. Even if the application before the Controlling Authority is made beyond 90 days, the power is conferred on the Controlling Authority to entertain the same subject to the employee showing sufficient cause for the same. The Bombay High Court in the matter of Dhanda R.P. (supra) has observed that, Rule 10 prescribes for an application to the Controlling Authority for direction. Sub-rule (1) of Rule 10 prescribes that, if the employer has not issued notice under Rule 8 after having received application under Rule 7 and if the employer has issued notice under Rule 8 Sub-rule (1), but has paid the gratuity less than what is payable to the employee or the employer has refused to accept the nomination or to entertain an application sought for under Rule 7, the cause of action accrues to the employee under Rule 10 and the employee is required to make an application within 90 days in Form 'N', Form 'N' as prescribed under Rule 10 Sub-Rule (1) by itself does not show any column requiring the explanation of delay. However, the proviso to Rule 10 does show that, if the application is made beyond 90 days, sufficient cause is required to be shown. This presupposes that an application under Rule 10 is required to be made in Form 'N' and if that application is made beyond the period prescribed under Rule 10, an application showing sufficient cause is required to be made. This aspect of the matter is considered by the Bombay High Court relying on the judgment of the Apex Court at para-23 wherein it is held, in the absence of condoning the delay, the Controlling Authority to deal with the application on merit could be one without jurisdiction. The Bombay High Court has relied on a judgment of the Apex Court in the matter of Gagandeep Pratishthan Pvt. Ltd. v. Mechano.
10. In this case, learned Counsel appearing for the legal representatives of the respondent No. 2 does not dispute that, except claim petition in terms of Form 'N', no application is filed for condonation of delay by showing sufficiency of cause. It is also not disputed that, Form 'N' by itself does not provide for explanation of the delay. When reading of Rule 10 clearly indicates that, an application for claim under Rule 10 is required to be made in 90 days and any application made beyond 90 days requires sufficient cause and sufficient cause could be shown only by filing an application along with Form 'N'
11. Considering the foots and circumstances of the case and also the judgment of the Bombay High Court and also the Division Bench decision of the Madras High Court reported in 1995(1) LLJ 348 (supra), I am of the opinion that, if an application is made before the Controlling Authority beyond the stipulated time prescribed in Rule 10, then the said claim or application requires an application for condonation of delay showing sufficient cause, without there being such application, the Controlling Authority proceeding with the matter would be in violation of Rule 10 of the Rules. Hence, the petition requires to be allowed.
12. Since the Controlling Authority has rejected the claim petition of the deceased respondent only on the ground that, it did not accompany an application for condonation of delay, in the light of the same, justice has to be made to the legal representatives of the workman by permitting them to make a claim petition along with an application for condonation of delay showing sufficient cause. If such an application is made, the Controlling Authority is at liberty to consider the same in accordance with law.
13. Accordingly, the petition is allowed. The order passed by the first respondent dated 31.1.2007 is quashed. However, the petitioner is at liberty to make a fresh application in accordance with law. The amount in deposit is directed to be refunded to the petitioner.