Kolhapur Zilha Shetkari v. Shri.Pundlik Sakharam

.... Mr.K.S.Bapat Adv. i/b M/s.Desai and Desai Associates for Petitioner Mr.D.V.Sutar Adv. i/b Mr. Bhavesh Parmar for Respondent Nos.1 to 13 .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : 27th JULY , 2009 P.C.:

Heard the learned counsel for the petitioner and the learned counsel for the respondent nos.1 to 13. None appears for Respondent No.14 though served.

The petitioner had filed an appeal under Section 7(7) of The Payment of Gratuity Act, 1972 against the adjudication order dated 14th March, 2008 passed by the Controlling Authority, Ichalkaranji. The main ground on which the appeal had been filed is that the Controlling Authority decided the matter exparte without the support of cogent evidence and convincing reasons and therefore, the said order be set aside. On perusal of the order dated 17th 2 wp-3647-09 March, 2009, passed by the appellate authority whereby the appeal came to be dismissed, it is seen that this issue has not been considered by the appellate authority.

The learned counsel appearing on behalf of the petitioner submits that the impugned order dated 17th March, 2009 has been passed without giving hearing to the petitioner. It is further submitted that the appeal was kept for hearing on 17th March, 2009 at 4.30 p.m. And when the representative of the petitioner factory went there, without affording any hearing to the petitioner, certified copy of the order was handed over to the petitioner ’s representative and on the typed copy of the order, the date was put in hand. He invited my attention to the certified true copy which does indicate that the said date is put in hand. It is, therefore, submitted that the said order was already ready and only the date 17th was put after the representative of the petitioner appeared before the respondent no.

He submits that the matter was heard on two earlier dates and the petitioner herein had filed their written arguments and the matter was kept for submission on the next date. Thus, the case of the petitioner is that the matter was kept for hearing on 17th March, 2009 but that day, the petitioner was not heard at all and the copy of the judgment and order was directly handed over to the petitioner on that day. 3 wp-3647-09

The learned counsel for the respondent stated that on 5th December, 2008 written submissions were handed over and it was stated that the petitioner does not want to submit any further evidence and hence, the matter was kept for orders on 17th March,

2009. He relied on a copy of the Roznama to support his contention. The learned advocate for the petitioner pointed out that all the earlier Roznamas show the signature of the party but the Roznama dated 5th December, 2008 does not bear signature of the parties and the controversy is regarding this very Roznama. He has also filed affidavit of the office clerk who was present on 5th December, 2008 wherein it is stated that he just handed over written statement and specifically stated that on the next day, the advocate would make his submissions and hence, the matter was adjourned to the next date.

In view of the controversy involved, notices were issued to respondent no.14 i.e. the appellate authority under the Payment of Gratuity Act, 1972 however, despite notice, none appears for the respondent no.14. Hence, it is not possible to find out the true state of affairs. However, looking to the stand taken by both sides, in my view, the proper course would be to set aside the order dated 17th March, 2009. Accordingly, it is set aside. The matter is remanded back to the appellate authority for fresh hearing and decision in 4 wp-3647-09 accordance with law. All contentions of the parties are left open. Petition is disposed of with above directions.

Parties to appear before the appellate authority on 25th August,

2009. Record and proceedings be sent back to the appellate authority forthwith.

[ SMT.V.K.TAHILRAMANI,J.]