Writ Petition No. 22218 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 22218 OF 2013 (L-PG) C/W WRIT PETITION NO. 7704 OF 2009 (L-PG) IN WP No. 22218/2013 BETWEEN: THE MANAGER, M/S BAHRATH BEEDI WORKS (P) LTD., ULLAL BRANCH, ULLAL BY B HOMENDRA, AGED ABOUT 58 YEARS, MANGALORE - 575001. (BY SRI UDAYA HOLLA, SENIOR ADVOCATE FOR SRI NATARAJA BALLAL, ADVOCATE) …PETITIONER AND: 1. THE DEPUTY LABOUR COMMISSIONER & APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972, HASSAN REGION, HASSAN, PIN -573201. 2. THE ASSISTANT LABOUR COMMISSIONER & CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 MANGALORE DIVISION, MANGALORE, PIN - 575002. Digitally signed by VANAMALA N Location: High Court of Karnataka - 2 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 3. SMT BHAVANI, W/O K RAVINDRA, MAJOR, DECAN HOUSE, KUTTARA PADAVU, MUNNARY POST, MANGALORE, PIN - 575003.
Legal Reasoning
4. SRI BABU SHETTY, MAJOR, BHARATH BEEDI CONTRACTOR, DESODI KUTTAR, MUNNARU GRAMA, MANGALORE, PIN - 575002. …RESPONDENTS (BY MS RASHMI RAO, HCGP FOR RESPONDENTS NO.1- 2, SRI K SHASHIKANTH PRASAD, ADVOCATE FOR R3, NOTICE TO RESPONDENT NO.4 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS. QUASH THE ORDER DATED 2.4.13 VIDE ANNX-A PASSED BY R1 AND ALSO ORDER DATED 10.2.12 VIDE ANNX-B PASSED BY R2. IN WP NO. 7704/2009 BETWEEN: THE MANAGEMENT OF M/S JYOTHI HOME INDUSTRIES, OLD TOLL GATE, # 261, MYSORE ROAD, BANGALORE, REP. BY ITS DIRECTOR. (BY SRI UDAYA HOLLA, SENIOR ADVOCATE FOR SRI. NATARAJA BALLAL.,ADVOCATE) ...PETITIONER AND: 1. THE DEPUTY LABOUR COMMISSIONER AND THE APPELLATE AUTHORITY - 3 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 UNDER THE PAYMENT OF GRATUITY ACT 1972, BANGALORE REGION I, KARMIKA BHAVAN, BANNERGHATTA ROAD, BANGALORE. 2. K G GHOUSE MOHIDDIN, CONTRACTOR, IST CROSS, TIPPU NAGAR, MYSORE ROAD, BANGALORE. 3. SMT ASIYABI, AGED ABOUT 62 YEARS, W/O ISHAQ SHERIFF, 17TH CROSS, HOSAHALLI D CROSS, PADARAYANAPURA, BANGALORE. 4. SRI SHAFIULLA, AGED ABOUT 60 YEARS, # 55, 11TH CROSS, PADARAYANAPURA, BANGALORE. (BY MS RASHMI RAO, HCGP FOR R1, NOTICE TO RESPONDENT NO.2 SERVED) ...RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN APPEAL NO. PGA:CR-20:2003-04 AND PGA:CR-22:2003-04 ON THE FILE OF THE DEPUTY LABOUR COMMISSIONER (REGION-1) CUM APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 VIDE ANNEX-A AND ETC. THESE PETITIONS, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD - 4 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 ORAL ORDER The petitioner, who is licensed under the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 [for short, 'the Beedi Act'], is aggrieved by a set of similar orders under the provisions of the Payment of Gratuity Act, 1972 [for short, 'the Gratuity Act']. The petitioner, in the writ petition in W.P.No.22218/2013, has called in question the second respondent’s order dated 10.02.2012 and the first respondent’s Order-in-Appeal dated 02.04.2013. The petitioner, in the W.P.No.7704/2009, has called in question the order dated 23.01.2009 and the rectification order dated 25.02.2009. 2. The Authorities, by the impugned orders in W.P.No.22218/2013, have concurrently held that the concerned private respondent [Smt. Bhavani], is entitled for gratuity under the Gratuity Act and the computation of the gratuity by the Controlling Authority is confirmed in appeal by the - 5 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 next order. In W.P.No.7704/2009, the contesting respondents [Smt. Asiyabi and Sri. Shafiulla] did not succeed before the Controlling Authority, but they have succeeded in the appeal, which is allowed by the order dated 23.01.2009 and rectified by the subsequent order dated 25.02.2009. In the order dated 23.01.2009, the Appellate Authority has opined that the contesting respondent [Sri. Shafiulla] would be entitled for Rs.37,600/- and this is rectified by the subsequent the order dated 25.02.2009 to read that he will be entitled for Rs.33,600/-. 3. It is undisputed that the amount determined by the Authorities in the second petition viz., W.P.No.7704/2009 is disbursed to the contesting respondents and the amount payable to the third respondent in W.P.No.22218/2013 is deposited with the Controlling Authority and is yet to be disbursed. The petitioners have called in question the aforesaid orders contending that the contesting - 6 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 respondents were hired through a contractor and therefore there is no Employer -Employee relationship, and in the absence of such relationship, the petitioner cannot be called upon to pay gratuity under the Gratuity Act. 4. Sri. Udaya Holla, the learned Senior counsel who leads Sri. Nataraja Ballal, the learned counsel on record for the petitioners, submits that the common questions for consideration in both these petitions will be: [a] Whether the contesting respondents could be granted any benefit under the Gratuity Act if the Act does not apply, and [b] Whether a belated claim for payment of gratuity could have been entertained without considering certain provisions of the Beedi and Cigar Workers (Conditions of Employment) - 7 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 (Mysore) Rules, 1969 [for short, 'the Beedi Rules']. The learned Senior counsel submits that the additional question for consideration in the second petition viz., W.P.No.7704/2009 would be, whether the Appellate Authority could have entertained a belated appeal without even an application for condonation of delay. 5. On the common questions, Sri. Udaya Holla proposes to contest the applicability of Gratuity Act inviting this Court's attention to Section 1(3) of the Gratuity Act contending that unless a notification is issued either under the law declaring the Home Space of a beedi worker as an Establishment or a notification otherwise by the Central Government, the house of a beedi worker where beedis are rolled would not be an Establishment to which the Gratuity Act applies. However, the question of applicability of the Act must be considered in the light of the following two - 8 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 decisions of this Court, which are relied upon by Sri. K. Shashikanth Prasad, the learned counsel for the third respondent in W.P.No.22218/2013. The details of these decisions are: i. M/s. Bagi Beedi Factory, Hubli Vs. Appellate Authority under Payment of Gratuity Act and Joint Labour Commissioner, Bangalore and Others1. ii. Wazeerkhan Kudachi Vs. Appellate Authority under Payment of Gratuity Act, Belgaum and Others2. 6. If M/s. Bagi Beedi Factory [supra], a Co-ordinate Bench of this Court has held that the definition of an 'Establishment' under Section 2(h) of the Beedi Act would apply to Section 2(e) of the Gratuity Act and therefore, the provisions of the Gratuity Act must apply to those who are engaged in 1 ILR 1997 KAR 2896 2 2005 SCC Online KAR 675 - 9 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 beedi rolling, a Division Bench in the next decision viz., Wazeerkhan Kudachi [supra], addressing whether the provisions of the Gratuity Act have no application to the beedi rollers, has held: "It is also necessary to point out that the learned Single Judge of this Court in the case of Bagi Beedi, has taken the view that so far as the beedi rollers are concerned, the provisions of the Act applies. Similar view is also taken by the Gujarat High Court in the case of Patel Hiralal Ramlal and Company. v. Smt. Chandbibi Pirubhai. Further, while considering the question whether the Gratuity Act would apply to a project undertaken by the Hydel Department of the Government of Punjab which has been described as the "Hydel Upper Bari Doab Construction Project", the Supreme Court in the case of State of Punjab v. Labour Court, Jullundur, took the view that the Payment of Gratuity Act applies to an establishment in which any work relating to construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or the generation, transmission and distribution of electricity or any other form of power is being carried on and it is not possible to give a limited meaning the Act and Section 1(3)(b) of the Act would apply to every establishment within the meaning of any law for the time being in force in relation in a State and such to establishments establishment would industrial establishment within the meaning of Section 2(g) of the Payment of Wages Act, 1936. to Section 1(3)(b) of relating include to - 10 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 Therefore, we are unable to accede to the submission of the learned Counsel for the appellant that the provisions of the Act has no application to the beedi rollers. Accordingly, question No. 1 is answered." This Court must opine that with this conclusion, the petitioners cannot succeed on the first ground. 7. The Authorities, in computing the gratuity payable, have essentially inferred the wages that could be paid to the contesting respondents because the petitioners have not produced materials to substantiate the actual number of beedis rolled per day by these respondents and the amounts payable based on such numbers. This Court must record that the Controlling Authority, in the orders called in question in W.P.No.22218/2013, has opined that it would be difficult to accept that the third respondent [Smt. Bhavani] who has been rolling beedis for the last eleven years could have rolled only 96 to 192 beedis a month as against an average of 2,500 to 5,000 beedis for this period. This inference, and a similar inference for computation in the other - 11 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 proceedings, is called in question relying upon certain provisions of the Beedi Rules. 8. Sri. Udaya Holla submits that in terms of Rule 33 of the Beedi Rules, an employer must preserve different registers for three years from the last entry in such Register and should be readily available for inspection during working hours, and that because the contesting respondents have filed their applications well after the three years period, the petitioners are not able to place on record these details. The learned Senior Counsel emphasizes that the contesting respondents, who are also required to make entries in the prescribed register, should have produced the details. 9. However, this Court is not persuaded to interfere on this ground in the light of the inferences made by the Authorities, and further, as observed by the Authorities, the petitioners, who are obliged in law to pay gratuity under the Gratuity - 12 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 Act, should have placed every material to justify its case that the inference drawn is exaggerated or totally unreasonable. The petitioners have not placed on record any material, and as such, the petitioners cannot succeed on the first ground. 10. The contesting respondents in the petition in W.P. No.7704/2009 have indeed filed their appeal as against the Certifying Authority's order belatedly. As is held by a Co-ordinate Bench of this Court in Bangalore Metropolitan Transport Corporation v/s The Deputy Labour Commissioner and the Appellate Authority and Others3, the application must be filed within 30 days, but in the circumstances where the amount has already been disbursed to these respondents, this Court is not inclined to interfere on this ground. This Court is categorical that this view as aforesaid is because of 3 2008 SCC Online Kar 8 - 13 - NC: 2025:KHC:14945 WP No. 22218 of 2013 C/W WP No. 7704 of 2009 the peculiarity as stated above and not to lay down any precedent.
Decision
The petitions stand disposed of accordingly. Sd/- (B M SHYAM PRASAD) JUDGE RB