Karnataka High Court
Bangalore Metropolitan Transport ... vs The Deputy Labour Commissioner on 16 January, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.7743 OF 2010 (LK)
BETWEEN:
BANGALORE METROPOLITAN
TRANSPORT CORPORATION
CENTRAL OFFICE, K.H. ROAD,
BANGALORE
BY ITS CHIEF TRAFFIC MANAGER
REPRESENTED BY ITS CHIEF LAW OFFICER
...PETITIONER
(BY SMT. H.R. RENUKA, ADVOCATE)
AND:
1. THE DEPUTY LABOUR COMMISSIONER
AND THE APPELLATE AUTHORITY
UNDER THE PAYMENT OF GRATUITY ACT
REGION 1, KARMEEKA BHAWAN,
BANNERGHATTA ROAD,
BANGALORE.
2. THE ASSISTANT LABOUR COMMISSIONER
AND CONTROLLING AUTHORITY
UNDER THE PAYMENT OF GRATUITY ACT
DIVISION - 2, KARMEEKA BHAWAN,
BANNERGHATTA ROAD,
BANGALORE.
3. SMT. NIRMALA,
W/O. LATE S.R. ANANTHRAO,
AGED ABOUT 48 YEARS.
2
4. MASTER PAVAN,
S/O. LATE S.R. ANANTHRAO,
AGED ABOUT 16 YEARS,
NO.11, 9TH MAIN ROAD, 6TH CROSS,
MATHRU CHAYA LAYOUT,
SRINIVASANAGARA,
BANGALORE - 28.
... RESPONDENTS
(BY SRI. D. ASHWATHAPPA, AGA, FOR R1 & R2
& SMT. S.B. LAKSHMI, ADV, FOR R3 AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER MADE IN
NO.ALCB.2/PGA/CR-48/2006-07 DATED 30.10.2007
PASSED BY THE SECOND RESPNDENT; TO QUASH THE
ORDER NO.DYLC.B1/GRATUITY APPEAL/CR-
44/2007.08 DATED 06.02.2009 PASSED BY THE FIRST
RESPONDENT AND TO QUASH THE ORDER MADE IN
NO.DYLC.B1/GRATUITY APPEAL/CR.44/2007.08 DATED
30.11.2009 PASSED BY THE FIRST RESPONDENT.
THIS WRIT PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
It is unfortunate that the Deputy Labour Commissioner, Bengaluru, committed a mistake for second time while passing the impugned order dated 30.11.2009 reiterating the order dated 06.02.2009, inspite of the order passed by this Court on 08.06.2009 setting aside the said order, directing the Deputy Labour Commissioner/Appellate Authority under the payment of 3 Gratuity Act to consider both the appeals filed by the management as well as the workman on merits and pass orders in accordance with law.
2. It is the case of the petitioner that the husband of respondent No.3 Sri. S.R. Ananth Rao, has joined the service as conductor on 20.12.1966 in the establishment of the B.M.T. Corporation and after attaining the age of superannuation on 30.06.1997, the workman was paid gratuity by taking into consideration the period of active service rendered by him.
3. It is the further case of the corporation that the workman was paid gratuity admissible that is a sum of Rs.90,188/-, who died on 21.08.1998. After lapse of 10 years, his LRs have filed an application before the respondent No.2 claiming difference of gratuity amount by placing reliance on the judgment of the Hon'ble Supreme Court in Krishna Reddy's case and the corporation filed objections. The respondent No.2 by an order dated 30.10.2007 determined (Annexure A) the payment of gratuity payable was a sum of Rs.82,972/- and interest at the rate of 10% p.a. by placing reliance on the Krishna 4 Reddy's case. Against the said order, the corporation filed an appeal before the Appellate Authority. The first respondent during the pendency of the appeal brought to the notice of the court that the workman died on 08.03.2008 and the LRs of respondent No.3 were not brought on record and the Appellate Authority proceeded to pass the order on 06.02.2009 dismissing the appeal filed by the corporation confirming the order passed by the respondent No.2. Against the said order passed by the Appellate Authority, the corporation filed W.P.No.6767/2009 before this Court, impleading the dead person as respondent No.3.
4. This court without filing any LR application by the petitioner corporation by an Order dated 08.06.2009 observed that the application was filed to bring the LRs of workman on record before the Appellate Authority. Without noticing the said fact, the Appellate Authority dismissed the said appeal and passed an order against the Deputy Labour Commissioner. Therefore, the same is non-est and accordingly this court allowed the writ petition and remanded the matter to the Deputy Labour Commissioner for consideration of both appeals 5 filed by the management as well as workman on merits and pass orders in accordance with law, after affording opportunities to both the parties. This court also directed to expedite the matter. Unfortunately, even for the second time the first respondent/Appellate Authority by impugned order dated 30.11.2009, without discussing the matter on merits proceeded to held that there is no need to modify the order dated 06.02.2009. This is patent illegality committed by the first respondent / Appellate Authority, in spite of the order passed by this Court dated 08.06.2009. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Smt. H.R. Renuka, learned counsel for the petitioner/corporation vehemently contended that the impugned order passed by the first respondent is erroneous, contrary to the materials on record and contrary to the very directions issued by this court in terms of the order dated 08.06.2009 made in W.P.No.6767/2009. Therefore, the impugned order 6 cannot be sustained and therefore she sought to allow the present writ petition by quashing the impugned order.
7. Per contra, Smt. S.B. Lakshmi, advocate appearing for respondent No.3 and 4 sought to justify the impugned order and contended that the first respondent/Appellate Authority passed order confirming the order dated 06.02.2009 as in accordance with law. Sri. D. Ashwathappa, learned A.G.A., fairly submits that there is a mistake of first respondent not noticing the fact that this court has directed the first respondent to pass orders on merits after hearing the parties and therefore the matter requires for re-consideration.
8. Having heard the learned counsel for the parties, the only point arises for consideration is:
Whether the impugned order passed by the Appellate Authority as per Annexure-F is justified in the facts and circumstances of the present case?
9. It is undisputed fact that the husband of the respondent No.3 joined the petitioner/corporation as 7 conductor on 20.12.1966 and after attaining the age of superannuation retired on 30.06.1997. Accordingly, the corporation have paid gratuity admissible that is a sum of Rs.90,188/- and subsequently he filed application for difference of gratuity placing reliance on the judgment of the Hon'ble Supreme Court in Krishna Reddy's case. The same has been considered by the second respondent Assistant Labour Officer and determined the gratuity amount payable by the corporation @ Rs.82,972/- with 10% interest per annum. Aggrieved by the said order both corporation as well as the deceased Sri. S.R. Ananth Rao filed appeal before the first respondent and it is also not in dispute. The respondent No.3 was also appellant before the Appellate Authority, who died on 08.03.2008. Without noticing the said fact of death of husband of respondent No.3, the Appellate Authority proceeded to pass order on 06.02.2009 dismissing both the appeals filed by the corporation as well as workman.
10. It is also not in dispute, that aggrieved by the said order, the corporation filed W.P.No.6767/2009 before this court. This court considered after hearing only 8 learned A.G.A. for respondent No.1 and 2 and the corporation without notice to the respondent No.3, even though he died long back, proceeded to pass an order on 08.06.2009 allowing the writ petition and directed the Deputy Labour Commissioner / Appellate Authority shall consider both the appeals on merits and pass orders in accordance with law, after hearing both the parties.
11. It is unfortunate that the first respondent without following the directions issued by this court stated supra has proceeded to reiterate that there is no need to modify the order dated 06.02.2009 by non- speaking impugned order which cannot be sustained. Admittedly, the respondent No.1 / Appellate Authority has not discussed anything on merits as directed by this court except reiterating the order dated 06.02.2009. In fact he has reiterated the order and only says there is no need to modify the order. When this court already set aside the said order dated 06.02.2009 on 08.06.2009, the Appellate Authority ought to have considered the entire matter on merits and should have passed a speaking order. The same has not been done. Therefore, for the 9 reasons stated above the impugned order passed by the Appellate Authority is not in accordance with law, hence the point for consideration raised in the Writ Petition has to be answered in the negative, holding that the Appellate Authority order, which is not a speaking order.
12. For the reasons stated above, the writ petition is allowed. The impugned order dated 30.11.2009 passed by the Assistant Labour Commissioner / Appellate Authority is quashed. Matter is remanded to the Appellate Authority for fresh consideration strictly in accordance with law. It is open for both the parties to the lis to produce documents, if any in support of their respective claims. The Appellate Authority shall consider and pass orders on merits, with a speaking order in accordance with law. The Appellate Authority is directed to give an opportunity to both the petitioners as well as LRs of workman i.e., respondent No.3 and 4 in the present writ petition and pass orders.
13. Both the parties are directed to appear before the Appellate Authority on 30.01.2017. This court only 10 hope and trust that the Appellate Authority shall not repeat such things in future.
Sd/-
JUDGE SV/KMV