Karnataka High Court
The Chairman-Cum-Manging Director Ors vs C Loky S/O Bhiku Naik on 25 September, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH, GULBARGA
DATED THIS THE 25TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION Nos.81600-602/2011
&
83338-514/2011 (L-PG)
BETWEEN:
1. THE CHAIRMAN-CUM-MANGING DIRECTOR
CEMENT CORPORATION OF INDIA LTD.,
CORE-V SCOPE COMPLEX,
LODI ROAD,
NEW DELHI 110 003
2. THE GENERAL MANAGER,
TANDOOR CEMENT FACTORY
TANDOOR POST
RANGA REDDY DISTRICT
ANDHRA PRADESH 501 158
3. THE SENIOR MANAGER,
CEMENT CORPORATION OF INDIA
KURKUNTA, SEDAM TALUK
GULBARGA DISTRICT. ..PETITIONERS
(BY SRI.AMEET KUMAR DESHPANDE, ADVOCATE)
2
AND:
1. C LOKY S/O BHIKU NAIK
2. CHANDRASEKHAR S. BASAVARAJ
3. ASHOK S/O RAMJI
4. GOPAL KRISHNA S/O USHAPPA
5. SHENKARNNA S/O NARASAPPA
6. H.SANGAPPA S/O VEERAPPA PATIL
7. K.NARSINGHLU S/O SAMAPPA
8. VASANTH RAO S/O SHANKAR RAO
9. C. MEHABOOB S/O MASAK ALI
10. JAGANNATHA S/O HANUMANTH RAO
11. MOULAN SAB S/O SHABUDDINI
12. MEHABOOB ALI S/O ALI SAB
13. MALLANNA BASABBA
14. E. IMAMAM SAB S/O AMIN SAB
15. RAM LING S/O SHARNAPPA
16. MOULAN SAB S/O MEHABOOB SAB
17. RUKUM PATEL S/O CHAND PATEL
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18. RUKMODDIN S/O NABI SAB
19. R. BALAPPA S/O BHIMAPPA
20. ASHOK S/O BHIMANNA
21. MEHABOOB S/O KHAJA SAB
22. C. HUSSAIN S/O KHADER SAB
23. SHANKAR S/O LAXMAN
24. CHANDRAIAH S/O SABANNA
25. CHUMMAVA W/O GURLING
26. T. BASAVARAJ MARIYAPPA
27. H. RAMESHA S/O SHIVSHARANAPPA
28. SANGANNA S/O SHARNAPPA
29. BASAVARAJ S/O TIPPAIAH
30. SAMA RAO S/O PEERAPPA
31. DASHRATH S/O MUKAN RAO
32. MAHADEVI W/O MAHADEV
33. MAHADEVAPPA S/O SHIVLINGAPPA
34. NAGENDRAPPA S/O SHIVSARNAPPA
35. NEELAYYA S/O NARSINGH RAO
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36. MANOHAR S/O MARUTI RAO
37. SHIVLINGAPPA S/O NAGAPPA
38. SHAM RAO S/O SHAMAPPA
39. LAL AHMED S/O MAKTUM SAB
40. DEVAPPA S/O SHARNAPPA
41. BASAREDDY S/O DEVINDRAPPA
42. MALLAMMA D/O ASHOK
43. K. BHIMANNA S/O SHANTAPPA
44. R. SHARNAPPA S/O ERAPPA
45. CHANDRA SEKHAR S/O SANGAPPA
46. MOGULAMMA W/O SHYLAPPA
47. A. RAZAK S/O MUSHAK
48. REVANAPPA S/O SIDRAMAPPA
49. BASAVARAJ S/O BASWANTH RAO
50. SHANKARAPPA S/O BASAPPA
51. RAMAPPA S/O CHANDRAPPA
52. PANTAPPA S/O YENKAPPA
53. TIPPAMMA W/O LATE BHIMSHA
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54. GOPAL S/O MANSINGH
55. SHIVAJI S/O AMBOJI
56. B. LUCKY S/O BHOJU
57. GOPAL S/O AMRU NAIK
58. SHARNAPPA S/O SAIBANNA
59. P. REDDY S/O BHIM REDDY
60. BHIMAPPA S/O NARSAPPA
61. BASAVARAJ S/O TIPPANNA
62. LAL AHMED S/O MASAK SAB
63. KISTAMMA W/O DEVANDRAPPA
64. NARASAMMA W/O RAMAPPA
65. GALIM S/O PEER SAB
66. L. SITA BAI W/O LAXMAN
67. SUMITRA W/O LATE HANMANTHRAY
68. YENKAPPA S/O TIMMANNA
69. BHIMSHA S/O SHABANNA
70. MAKBUL S/O KASHIM SAB
71. KAJA PATEL S/O MASTAN PATEL
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72. ASAHAMMA S/O ARUN
73. ARJUN S/O BHIMANNA
74. MAHADEVI S/O DEVINDRAPPA
75. GURANNA S/O BHIMANNA
76. SIDDAMMA W/O LATE SABANNA
77. NARSAPPA S/O SAYAPPA
78. BHIMAMMA W/O NAGAPPA
79. IMAM SAB S/O KASHIM SAB
80. BHIMALA S/O BHOJU
81. MOINUDDIN S/O MOULAN SAB
82. MALLAPPA S/O SOMASHEKAR
83. SITA BAI W/O HANUMANTHA
84. RAJABEE W/O BHIMSHA
85. KASHAMMA W/O HUSANAPPA
86. RAMESH S/O KUSHAPPA
87. LALU S/O HEMALA
88. SUBHASH S/O DARAMA
89. CHANDRAMMA W/O BALAYYA
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90. MOHD. ALI S/O HUSSAIN SAB
91. CHANNAYYA S/O NEELAKANTALU
92. VENKATESHA S/O SAYAPPA
93. HANUMANTHA S/O ERANNA
94. GURULINGAPPA S/O MALLAPPA
95. NARASAPPA S/O BHIMAPPA
96. JAYAMMA S/O SHARANAPPA
97. SMT. IMMAMBEE W/O MASAK SAB
98. B. RAJA SAB S/O HUSSAIN SAB
99. SMT. N. PARVATHI W/O ASHAPPA
100. AZMODDIN S/O PEERA AHMED
101. GALLAPPA S/O MARAPPA
102. JAINA BAI W/O LATE C. BALRAM
103. SIDDAPPA S/O SHIVAPPA
104. JAINA BAI W/O LATE BAL
105. VINAYAK RAO S/O PANDIT RAO
106. RAMA BAI W/O LATE SHARNAPPA
107. BHAGENDRA S/O SHARNAPPA
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108. SUSHILA BAI W/O LATE SITARAM
109. D. MALLIKARJUNA S/O REVANSIDDAPPA
110. C. REKHU S/O RUPALA
111. SHIVAMMA W/O LATE SHIVARAYA
112. P. TIPPANNA S/O SANGAPPA
113. MARYAMMA W/O LATE MAHADEVAPPA
114. NAGAPPA S/O CHANDRAPPA
115. SHARANAPPA S/O BHUTHOLI
116. GOVIND S/O THAURU NAIK
117. BHIMAPPA S/O LAXMAN
118. LAXMI BAI W/O TUKARAM
119. A. HAMEED S/O GANI SAB
120. DAWOOD S/O BURAN SAB
121. MAIBOOB S/O HASSAN SAB
122. BABU MIYAN S/O MASTAN PATEL
123. C. REKHU S/O RUPALA
124. RAJA S/O GAIB SAB
125. DEVINDRAPPA S/O NINGAPPA
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126. NIRANJANAPPA S/O HANMANTHA
127. RAMULU S/O BALAPPA
128. M.MAIBOOB S/O MOULANA SAB
129. TIPPANNA S/O HANUMU NAIK
130. K. KHIRU S/O JEEWAJI
131. ESHANNA S/O SHIVLINGAPPAS
132. SHEETU S/O DHAKU NAIK
133. HARI S/O HANUMU NAIK
134. VEERANNA S/O LAXMAPPA
135. RAMACHANDRA S/O VEERANNA
136. KHEERU S/O HANUMYU NAIK
137. JAIRAM S/O DEWAJI
138. GANNU S/O MITHU NAIK
139. TAKOOR S/O CHANDER NAIK
140. HARI CHANDRA S/O YOMULU NAIK
141. DESHU S/O AMRU NAI
142. MASHAK SAB S/O IMAM SAB
143. BASSAIAH S/O SHIVALINGAIAH
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144. NINGAPPA S/O BASAPPA
145. CHETRUY S/O AMBARA NAIK
146. BHEEM SINGH S/O DODHU NAIK
147. BHURGAN S/O RAHIMAN
148. NEELAYYA S/O SHARNAYYA
149. GUDU S/O KASI PATEL
150. NANDU S/O PREMSINGH
151. S. HUSSAIN S/O A. HAMEED
152. PUTLA BAI W/O SIDDAPPA
153. K. HANUMANTHA S/O NARSAPPA
154. D. KASHI SAB S/O MAIBOOB SAB
155. PANDU S/O LAXMAN
156. B. BABU MIYA S/O HAMEED SAB
157. MALLAMMA D/O BHAGWANTH
158. D. HUSSAIN BEE W/O DASTAGIRI
159. KISAN S/O RAMU
160. NAGAMMA S/O DEVAPPA
161. MAHADEVI W/O SHARNAPPA
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162. DEVAPPA S/O HANUMAPPA
163. MADUSUDAN S/O YELLAPPA
164. S. SITA BAI W/O SHANKAR
165. DEVAKI W/O MARIYAPPA
166. CHANDBI W/O RASUL SAB
167. KASHINATH S/O SIVALINGAPPA
168. TIPPAMMA W/O BHIMSHA
169. SHANTAMMA W/O M. SHANKAR
170. SHANKAR S/O LAXMAN
171. R. SITA BAI W/O B. REKHU
172. NAGAPPA S/O CHANDRAPPA
173. HANIFABEE W/O MASAK SAB
174. E.SWAMY S/O SIDDAYYA
175. RANGAMMA W/O NAGAPPA
176. MALLESHI S/O DURGAPPA
177. BASANNA S/O YENKAPPA
178. RUDRAPPA S/O RAYAPPA
179. SMT. BEESHA W/O MAKTUM SAB
ALL ARE MAJOR,
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OCC: EX. WORKERS, CCI KURKUNTA,
C/O. PRESIDENT
CCI WORKERS UNION, KURKUNTA
SEDAM TQ.
GULBARGA DISTRICT
180. THE CONTROLLING AUTHORITY
UNDER THE PAYMENT OF
GRATUITY ACT,1972 &
REGIONAL LABOUR
COMMISSIONER (CENTRAL)
BELLARY. ..RESPONDENTS
(BY SRI.S.V.DESHMUKH, ADVOCATE FOR R-16, R-56,
R-115 & R-117)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING TO QUASH THE SHOW CAUSE NOTICES
ISSUED BY THE RESPONDENT NO.180 IN FILE
NO.36(G)/2009/RLC/BLY AND 36 (G)/2011/RLC/BLY
DATED 23.03.2011 COPY OF WHICH ARE AT
ANNEXURE-F SERIES ETC.
THESE WRIT PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
13
ORDER
These writ petitions are filed by management calling in question order passed by Controlling Authority constituted under the Payment of Gratuity Act, 1972 who in exercise of power under sub-section (4) of Section 7 has determined the gratuity payable in respect of respondents herein vide Annexure-E series dated 11.06.2010.
2. Admittedly an order passed under section 7(4) is an appealable order under sub-section (7) of Section 7 of the Payment of Gratuity Act, 1972. Without exhausting the alternate and efficacious remedy available under the Act petitioners cannot invoke the extraordinary jurisdiction of this court under Article 226 of Constitution of India for exercise of such power. At this juncture Sri.Ameet Kumar Deshpande, learned counsel appearing for petitioners would contend that at 14 the time of preferring an appeal amount determined by the controlling authority to the extent of gratuity payable has to be deposited and as such it is not an efficacious remedy and since the petitioners herein are already before Board for Industrial and Financial Reconstruction (BIFR) in a proceeding under Section 15 of Sick Industrial Companies Act (SICA Act), 1985 and in view of said matter is pending before the BIFR sub- section (2) of Section 22 of the SICA gets attracted and all legal proceedings get suspended and no useful purpose would be served in going before appellate authority. This submission of the learned counsel for petitioners cannot be accepted for two reasons namely;
(i) no such ground has been raised in the present writ petition. (ii) The Co-ordinate Bench of this court had an occasion to consider similar plea raised by same petitioner in W.P.7422/2006 and connected matters which came to be disposed of on 21.03.2007 whereunder same petitioner had called in question 15 order passed by appellate authority under section 7(7) of Payment of Gratuity Act, 1972 contending that direction issued to the petitioners to deposit the amount of gratuity determined by controlling authority to examine the appeal as a condition precedent is erroneous. Said contention came to be examined by a Co-ordinate Bench of this Court and was negatived by relying upon the judgment of Hon'ble Apex Court in the case of Jay Engineering Works Limited Vs Industry Facilitation Council and another reported in 2006 (8) SCC 677 by concluding as under:
"8. It is not in dispute that the award was made by the Council in favour of Respondent 2. However, it is also not in dispute that the Board in terms of its order dated 08.04.2003 approved the scheme which inter alia envisaged the following:
"(xi) Rs.462 lakhs for settlement of `dormant trade creditors' on the basis of 25% principal amount,
(xii) Rs.540 lakhs for settlement of current overdues of suppliers to be paid over a period of 18 months".16
9. In the said scheme, the award made in favour of the respondents finds place in the category of "dormant creditors". The liabilities of the appellant vis-à-vis Respondent 2 were, therefore, indisputably a subject-matter of the said scheme. The High Court, in our opinion, committed an error in proceeding on the premise that the awarded amount had not been included and could not be included in the sanctioned rehabilitation scheme, the same being part of transactions which took place after 21.11.1997 ignoring the revised scheme made in the year 2003.
10. The High Court furthermore opined that inclusion of the respondent as a deferred creditor in the fresh rehabilitation scheme dated 08.04.2003 also did not affect the situation in favour of the appellant presumably on the premise that the 1993 Act was a special Act.
11. Before we advert to the contentions raised by the learned counsel for the parties, we may notice sub-section(2) of Section 6 of the 1993 Act which reads as under:
"6. (2) Notwithstanding anything contained in sub-section (1), any party to a dispute may make a reference to the Industry Facilitation Council for acting as an arbitrator or conciliator in respect of the matters referred to in that sub-section and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such dispute as if the arbitration or conciliation were pursuant to an 17 arbitration agreement referred to in sub- section (1) of Section 7 of that Act".
12. We may also notice that Section 19 thereof provides for a non obstante clause in the following terms:
"10. Overriding effect - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force".
Hence the contention of learned counsel for petitioner that appeal is not a alternate remedy cannot be accepted and same stands rejected. For the reasons aforesaid following order is passed:
ORDER
1. Writ petitions are hereby dismissed.
2. Dismissal of this order would not come in the way of petitioner challenging the impugned orders by filing an appeal under sub-section 7(7) of the Payment of Gratuity Act, 1972 before the Appellate Authority.18
3. In the event of such appeal/s being filed appellate authority shall consider the same and time spent by the petitioners before this court in prosecuting the present petitions shall be excluded for the purpose of computation of period of limitation.
4. No costs.
It would be needless to state that the appellate authority would take note of the judgment rendered by this court in W.P.7422/2006 and other connected matters on 21.03.2007 which also relates to the present petitioner.
Ordered accordingly.
Sd/-
JUDGE SBN