Karnataka High Court
The State Of Karnataka vs Sri R Prakash Bin Rangappa on 5 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 05TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.43197 OF 2011 (L-PF)
BETWEEN :
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT,
DEPARTMENT OF ANIMAL HUSBANDRY & FISHERIES,
VIKASA SOUDHA,
BANGALORE
2. THE DEPUTY DIRECTOR,
AMRUTHA MAHAL THALI
SAMVARDHANA KENDRA, CBN FORM,
AJJAMPURA POST, THARIKERE TALUK,
CHIKKAMAGALURU DISTRICT.
...PETITIONERS
(BY SRI.JAGADEESH MUNDARGI, AGA.,)
AND:
1. SRI R. PRAKASH BIN RANGAPPA,
MALLENAHALLI VILLAGE, BOOGAHALLI POST,
THARIKERE TALUK,
CHIKKAMAGALURU DISTRICT
2. THE DEPUTY LABOUR COMMISSIONER
AND APPELLATE AUTHORITY UNDER
THE PAYMENT OF GRATUITY ACT,
HASSAN DIVISION, HASSAN.
2
3. THE ASSISTANT LABOUR COMMISSIONER,
CHIKKAMAGALURRU DIVISION,
CHIKKAMAGALURU.
... RESPONDENTS
(BY SRI.R.B.SATYANARAYANA SINGH,HCGP FOR R2 AND R3)
(R1 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 28.2.09 PASSED BY THE ASST. COMMISSIONER
AND THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF
GRATUITY ACT, CHIKKAMAGALURU DIVISION,
CHIKKAMAGALURU DIVISION, CHIKKAMAGALURU VIDE ANNX-A
AND ORDER DATED 7.9.09 PASSED BY THE DISABILITY
LABOUR COMMISSIONER AND APPELLATE AUTHORITY, HASSAN
REGION, HASSAN IN PGA/SR-30/2009-10 VIDE ANNX-B
WRIT PETITION COMING ON FOR PRELIMINARY HEARING
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have called in question order passed by the 2nd respondent in PGA/SR-30/2009-10 dated 07.09.2009 Annexure 'B' whereunder appeal filed by 2nd petitioner questioning the order passed by the 3rd respondent in PGA/SR-01/2007-08 Annexure 'A' dated 28.02.2009 allowing the applications filed by the petitioner under Section 7 of The Payment Of Gratuity Act, 1972 has been dismissed.
2. Heard Sri. Jagadish Mundaragi, learned Additional Government Advocate appearing for the petitioner, 3 Sri. Sathyanarayan Singh, learned Government Pleader appearing for respondent Nos.2 and 3. Respondent Nos. 1 is served and unrepresented.
3. 1st respondent herein filed an application under Section 7 of The Payment Of Gratuity Act,1972 claiming, there was short payment for payment of gratuity amount by the 2nd petitioner. The controlling authority i.e., 2nd respondent herein after adjudication of the claim allowed the application and ordered that 1st respondent is entitled for total sum of Rs.26,595/-. Aggrieved by this order 2nd petitioner preferred an appeal in PGA/SR-30/2009-10 before the Appellate authority that is 2nd respondent herein. 2nd respondent dismissed the appeal and affirmed order of the controlling authority by its order dated 07.09.2009. It is these orders which are impugned in the present petition.
4. It is submitted by the learned AGA that under identical circumstances where the respondents instituted a claim against Range Forest Officer and Deputy Conservator of Forest without making the State of Karnataka represented by 4 its Member Secretary, Department of Forest, Oncology and Environment as party respondent Division Bench of this Court has set-aside the order in the case of Assistant Executive Engineer Vs. J.Mahadevaiah & Another reported in ILR KAR 2004 225 and submits that said order of the Division Bench has been followed by this Court in WP No.833/2007 disposed of on 17.09.2008 wherein the order passed by the authority constituted under the Minimum Wages Act, 1948 also came to be set-aside and matter was remanded back to the said authority for adjudication afresh after impleading the State of Karnataka as a party and contends that principles laid down in these cases are applicable to facts on hand and prays for similar order being passed in the instant case also inasmuch as before the 3rd respondent controlling authority State was not made a party by the 1st respondent. He would further contend that 'employer' as defined under Section 2(f) of the Payment of Gratuity Act,1972 is analogous to the definition of employer as defined under Section 2(e) of the ID Act,1947 and contends that the principles laid down in of Assistant Executive 5 Engineer Vs. J.Mahadevaiah & Another reported in ILR KAR 2004 225 case referred to supra is squarely applicable to the facts of this case also.
5. 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 to the proceedings before the jurisdictional authority i.e., 3rd respondent so that State would have got an opportunity to defend the claim and place all its defence including the issue regarding maintainability of claim. In view of the admitted fact that State was not made a party before the 3rd respondent in the proceedings culminating in the order dated 28.02.2009 it would emerge that State did not have any knowledge of the proceedings before respondents 2 and 3 and as such the orders impugned in the writ petition would not be binding on it.
6. Division Bench of this Court in the case of Assistant Executive Engineer Vs. J.Mahadevaiah &Another reported in ILR 2004 KAR 225 in almost identical 6 circumstances, though under the provisions of the Industrial Disputes Act, has nevertheless 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 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 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".
7. In view of the law laid down by the Division Bench of this Court and the principles enunciated therein, having been followed by this Court in WP No.833/2007 (L-MW) disposed of on 17.09.2008 under the Minimum Wages Act, it equally applies to the facts and circumstances of the case and the said principles has also been followed by this Court in WP No.47591/11 disposed of on 04.06.2012 having due regard to 7 the definition of the term 'Employer' as defined under Section 2(f) of the payment of Gratuity Act. Hence, the orders impugned in the present writ petition cannot be sustained, in the absence of the State having been made as a party to the proceedings before 3rd respondent Authority.
8. In that view of the matter, writ petition deserves to be allowed. Hence, Order dated 28.02.2009 Annexure 'A' as affirmed by the 2nd respondent dated 07.09.2009 Annexure 'B' are hereby set-aside and proceedings are remitted back to 3rd respondent for consideration afresh, affording opportunity to both the parties and reserving liberty to both parties to lead evidence. 3rd respondent shall thereafter pass orders on merits in accordance with law. It is also made clear that 1st petitioner is deemed to have been arrayed as party to the proceedings before the 3rd respondent in PGA/SR-01/07-08 now pending on the file of 3rd respondent namely in the claim petition filed by the 1st respondent herein before the 3rd respondent authority. 3rd respondent shall dispose of the claim petition within an outer limit of five months from the date of appearance of the parties.
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All contentions of both the parties are kept open. Ordered accordingly.
Sri.R.B.Satyanarayana Singh is permitted to file memo of appearance on behalf of respondents 2 & 3 within a period of two weeks from today.
Sd/-
JUDGE GH