The ManagementB&C Mills Limited (Unit of Binny Ltd)Perambur, Chennai – 600 012 v. The Joint Commissioner of Labour (Appellate Authority) Teynampet, Chennai – 600 006

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.2037 of 2008The ManagementB&C Mills Limited (Unit of Binny Ltd)Perambur, Chennai – 600 012rep. by its Company Secretary.. Petitioner Vs.1. The Joint Commissioner of Labour (Appellate Authority) Teynampet, Chennai – 600 006.2. The Assistant Commissioner of Labour (Controlling Authority) Teynampet, Chennai – 600 006.3. M.T.Rajamanickam.. RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of writ of Certiorari to call for the records of the 1strespondent in P.G. Appeal No.13/07 and quash its order dated16.10.2007.For Petitioner:Mr.S.Raveendranfor M/s.T.S.Gopalan & Co.For Respondents:Mr.T.SeenivasanAdditional Government Pleaderfor respondents 1 and 2No appearancefor third respondent ORDERThe writ petition is directed against the order of the firstrespondent passed in the appeal filed by the third respondent underthe Payment of Gratuity Act, 1972 (for brevity, "the Act"). https://hcservices.ecourts.gov.in/hcservices/

2.1. The short facts leading to the passing of the impugnedorder by the first respondent are that the petitioner/Company hassuspended its operation from 13.6.1996. On an application filed bythe third respondent for payment of gratuity in P.G.Case No.2 of2004, the second respondent allowed the same by order dated15.4.2004. That happened to be an exparte order and on receipt of acopy of the said order, it is stated that an application was filed on4.10.2004 by the petitioner/company to condone the delay and setaside the exparte order dated 15.4.2004. The condone delayapplication as well as the application to set aside the exparte ordercame to be allowed by the second respondent on 27.12.2004 on paymentof cost of Rs.300/- to the third respondent. It is stated that thepetitioner has paid the said cost to the third respondent and theP.G.Case No.2 of 2004 was restored to the file of the secondrespondent.2.2. It was the case of the petitioner before the secondrespondent that the claim of gratuity by the third respondent for theperiod from 22.5.1958 to 31.3.1990 is not permissible and the thirdrespondent ceased to be an employee from 7.12.1985 due toabandonment and cessation; and that the third respondent challengedthe same by filing I.D.No.317 of 1985 which was allowed by awarddated 25.11.1989 by ordering reinstatement with backwages and otherbenefits and the petitioner has challenged the same in W.P.No.18159of 1990 and this Court, by order dated 24.11.2000, has set aside thesaid award and it is stated that as against the said order writappeal has been filed and the same is pending.2.3. The second respondent passed orders on 31.12.2006 inP.G.Case No.2 of 2004 dismissing the application of the thirdrespondent on the ground that since writ appeal is pending no furtherorder can be passed. It was against the said order of the secondrespondent dated 31.12.2006, the third respondent has filedP.G.Appeal No.13 of 2007. By the impugned order dated 16.10.2007,the first respondent, while dealing with the appeal filed by thethird respondent against the final order passed by the secondrespondent dated 31.12.2006 which was after condonation of delay infiling a petition to set aside the exparte order, held that thesecond respondent was not justified in condoning the delay andsetting aside the exparte order dated 15.4.2004, since theapplication of the petitioner to set aside the exparte order isbelated and directed that the petitioner should pay the gratuity tothe third respondent in terms of the order of the second respondentdated 15.4.2004 with interest at the rate of 10% per annum. 3. The impugned order passed by the first respondent dated16.10.2007 is challenged on various grounds, including that the thirdrespondent, who has received the cost in the application filed by thepetitioner earlier to set aside the exparte order passed by thesecond respondent dated 15.4.2004, has not challenged the said order https://hcservices.ecourts.gov.in/hcservices/ by his conduct of receiving the cost and thereafter, the secondrespondent has passed the order in P.G.Case No.2 of 2004 on meritsdismissing the same on 31.12.2006 and in the appeal filed by thethird respondent against the merit of the final order dated31.12.2006 passed by the second respondent, the first respondentought not to have reopened the original order dated 15.4.2004 whichis no more in existence by virtue of the subsequent final order dated31.12.2006 and therefore, the impugned order of the first respondentis beyond jurisdiction.4. On a reference to the impugned order of the first respondentpassed under the provisions of the Payment of Gratuity Act as anAppellate Authority and in the undisputable facts it is clear thatoriginally the third respondent filed P.G.Case No.2 of 2004 demandinggratuity amount of Rs.83,076/- with interest at the rate of 12% andthe same was defended by the petitioner/company on the basis that thethird respondent has abandoned the service from 30.1.1985; that thepetitioner/company itself has ceased to operate; and that thecessation of service of the third respondent was challenged by him inthe Labour Court which has passed an award in his favour and thatcame to be set aside by this Court by order dated 24.11.2000 inW.P.No.18159 of 1990, thereby dismissing the Industrial Dispute andit is against that order the third respondent has filed W.A.No.1708of 2001 and the same is pending before this Court.5. It is also not in dispute that the order passed by thesecond respondent dated 15.4.2004 in P.G.Case No.2 of 2004 filed bythe third respondent is an exparte order. On record, it is seen thatthe petitioner/company has filed applications to condone the delayand to set aside the exparte order dated 15.4.2004 so as to restoreP.G.Case No.2 of 2004 on file to decide the same on merit. Thoseapplications were allowed by the second respondent on direction tothe petitioner/company to pay a cost of Rs.300/- to the thirdrespondent and after payment of the said cost, which has beenreceived by the third respondent, the applications came to be allowedby the second respondent and the original exparte order passed by thesecond respondent dated 15.4.2004 directing the petitioner to pay thegratuity amount stood set aside and the matter was heard on merits. 6. It was after hearing P.G.Case No.2 of 2004 on merit, thesecond respondent has passed final order on 31.12.2006, of coursedismissing the claim of the third respondent on the basis that thewrit appeal filed by the third respondent is pending before thisCourt. Therefore, by virtue of the final order passed by the secondrespondent on 31.12.2006 in P.G.Case No.2 of 2004 on merit, namelyafter hearing both the parties, the original exparte order passed bythe second respondent dated 15.4.2004 is no more in existence andcertainly it is not open to the first respondent to reopen thatorder. When the restoration of P.G.Case No.2 of 2004 was ordered bythe second respondent on payment of cost of Rs.300/- to the third https://hcservices.ecourts.gov.in/hcservices/ respondent, the same has not been questioned by the third respondentat any point of time. It is only the final order passed by thesecond respondent on 31.12.2006 in P.G.Case No.2 of 2004 that wasquestioned by the third respondent by way of appeal in P.G.AppealNo.13 of 2007 before the first respondent. In such circumstances, itis certainly not open to the first respondent to presume as if theoriginal exparte order of the second respondent dated 15.4.2004 isstill in existence. It is equally not open to the first respondentto hold that the second respondent ought not to have allowed theapplication to condone delay to set aside the original exparte orderdated 15.4.2004 for the simple reason that those orders were neverquestioned by the third respondent, who is the affected party beforethe first respondent. Therefore, on jurisdictional issue, the firstrespondent has no jurisdiction to reopen that at all. It would havebeen different if the first respondent, being the appellateauthority, by considering the order passed by the second respondentdated 31.12.2006 has set aside the order and directed the petitionerto pay the gratuity amount, but in the order passed by the firstrespondent it is clear that the first respondent has taken a standthat the second respondent ought not to have allowed the condonedelay application and restored the P.G.Case No.2 of 2004 in which theexparte order was passed on 15.4.2004. In fact, the first respondenthas raised it as an issue to the effect that the second respondentought not to have entertained the application filed by the petitionerto set aside the order dated 15.4.2004 after the lapse of 30 days.When that was not an issue before the first respondent, the firstrespondent is not having jurisdiction to decide the same. 7. In such view of the matter, the impugned order of the firstrespondent is set aside and the matter is remanded to the firstrespondent to decide the appeal filed by the third respondent inP.G.Appeal No.13 of 2007 against the order of the second respondentdated 31.12.2006 passed in P.G.Case No.2 of 2004 on merit and passappropriate orders after giving opportunity to the partiesexpeditiously, in any event within a period of twelve weeks from thedate of receipt of a copy of this order. The writ petition standsallowed in the above terms. No costs.sasi Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1. The Joint Commissioner of Labour (Appellate Authority) Teynampet, Chennai – 600 006.2. The Assistant Commissioner of Labour (Controlling Authority) Teynampet, Chennai – 600 006.+ 1 cc to M/s. T.S. Gopalan & Co., Advocate SR.59764W.P.No.2037 of 2008RS(CO)EU 23.11.2009.