Sri Venkateshwar Automobiles, vs Shri B N Gopal on 17 August, 2021

[Cites 3, Cited by 1]

Karnataka High Court

Sri Venkateshwar Automobiles, vs Shri B N Gopal on 17 August, 2021

Bench: S.Vishwajith Shetty

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 17TH DAY OF AUGUST, 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

         WRIT PETITION NO. 62562/2011 (L-PG)
BETWEEN:

SRI VENKATESHWAR AUTOMOBILES,
PATEL NAGAR,HOSPET,
REP.BY ITS PARTNER
SHRI SHASHIKANT S/O GOPALACHAR,
PATEL NAGAR,HOSPET.
                                            ...PETITIONER
(BY SRI. ANANT P. SAVADI, ADVOCATE)

AND:

1.     SHRI B. N. GOPAL
       AGE: MAJOR, OCC: NIL,
       DOOR NO. 7589, SARASWATI KUTIR,
       JAWAHAR NAGAR, RAICHUR.

2.     THE ASSISTANT LABOUR COMMISSIONER,
       BELLARY DIVISION, DAVANGERE.

3.     THE DEPUTY COMMISSIONER,
       BELLARY DSITRICT,BELLARY.
                                          ...RESPONDENTS

(BY SRI. VINAYAK S. KULKARNI, AGA FOR R2 AND R3;
    SRI. SANTOSH NARAGUND, ADVOCATE FOR R1)
                                                       W.P.No.62562/2011

                                  2



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER OF RECOVERY CERTIFICATE DATED:15/11/2010 ISSUED
BY RESPONDENT NO.2 PRODUCED AT ANNEXURE-D.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:


                               ORDER

The petitioner has approached this Court with a prayer to quash the recovery certificate dated 15.11.2010 issued by respondent No.2 - The Assistant Labour Commissioner, vide Annexure-D, exercising his powers under Section 8 of the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act of 1972', for short).

2. The brief facts of the case as revealed from the material on record are:

The 1 s t respondent herein, who was an employee of the petitioner, had filed a petition for payment of gratuity and the same was allowed. The appeal filed by the petitioner challenging the said order was also dismissed. In spite of the same, the petitioner had not W.P.No.62562/2011 3 paid the gratuity amount to 1 s t respondent. It is under these circumstances, the 1 s t respondent moved the 2 n d respondent for the purpose of issuing recovery certificate as provided under Section 8 of the Act of 1972. Considering the said request, 2 n d respondent has issued the impugned recovery certificate dated 15.11.2010 directing the 3rd respondent Deputy Commissioner to recover the amount of `18,557/- with interest from the petitioner, as if it is arrears of land Revenue and to remit the same in the name of 2 n d respondent.

Being aggrieved by the same, the petitioner is before this Court.

3. Section 8 of the Act of 1972 reads as follows:

"8. Recovery of gratuity .-- I f the amount of gratuity payable under this Act is no t paid by the emplo yer, within the prescribed time , to the person entitle d thereto, the contro lling authority shall, o n an applicatio n made to it in this behalf by the aggrieve d person, issue a certificate fo r that amount to the Co llector, who shall re cover W.P.No.62562/2011 4 the same , to gether with compo und interest thereon at such rate as the Central Government may, by no tification, specify, from the date o f expiry o f the prescribe d time, as arrears of land revenue and pay the same to the pe rson entitle d there to:

Pro vided that the contro lling autho rity shall, before issuing a certificate under this section, give the emplo yer a reaso nable opportunity of sho wing cause against the issue of such certificate:

Pro vided furthe r that the amo unt of inte rest payable unde r this section shall, in no case excee d the amount of gratuity payable unde r this Act."

4. A reading of the first proviso to Section 8 of the Act of 1972 would go to show that the Controlling Authority shall, before issuing a recovery certificate under this Section, give the employer a reasonable opportunity of showing cause against the issue of such certificate. It is the specific case of the petitioner that, no such opportunity was given by the 2 n d respondent before issuing the recovery certificate vide Annexure-D and the petitioner has also raised a contention that he W.P.No.62562/2011 5 has remitted the entire amount of `18,557/-, much prior to the issuance of recovery certificate.

5. I have perused the recovery certificate dated 15.11.2010, which is produced at Annexure-D. It does not reflect that the 2 n d respondent has issued any show cause notice to the petitioner herein before issuing the said certificate. Learned Addl. Government Advocate appearing for respondents No.2 and 3 is also not in a position to point out to this Court that the 2nd respondent had issued a show cause notice to the petitioner herein in compliance of the requirements of first proviso to Section 8 of the Act of 1972.

6. Under the circumstances, the impugned certificate for recovery of gratuity dated 15.11.2010, issued by the 2 n d respondent cannot be sustained and the same is liable to be quashed. Accordingly, I proceed to pass the following:

W.P.No.62562/2011

ORDER Writ petition is allowed.

The impugned certificate for recovery of gratuity dated 15.11.2010 vide Annexure-D issued by the 2 n d respondent - The Assistant Labour Commissioner is quashed.

However, liberty is reserved to the 2 n d respondent to take necessary action in accordance with law for issuing fresh certificate of recovery of gratuity, if need arises, after issuing appropriate show cause notice, as provided under Proviso to Section 8 of the Act of 1972 and thereafterwards pass orders in accordance with law.

Sd/-

JUDGE g ab

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