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2015 DIGILAW 1203 (KAR)

Khaja Education Society v. Abdul Baqi

2015-10-29

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. 1. The petitioner is before this Court assailing the order dated 17-5-2010 impugned at Annexure-D to the petition. The first respondent claiming that the petitioner had not paid him the gratuity amount, had approached the Controlling Authority under the provisions of the Payment of Gratuity Act, 1972. The Controlling Authority by the order dated 13-1-2006 had rejected the claim of the first respondent herein. The first respondent claiming to be aggrieved by the same was before the Appellate Authority in the appeal bearing No. CR-02/10/11. The Appellate Authority by the order dated 17-5-2015 has directed that the petitioner pay to the first respondent a sum of Rs. 1,10,100/- with interest thereon. The petitioner claiming to be aggrieved by the same is before this Court. 2. Though initially the contention had been raised by the petitioner that the first respondent does not answer the definition of workman, the same does not arise for consideration at this juncture as the said position is conceded. The only question for consideration is with regard to the quantum of the amount as has been ordered by the Appellate Authority. While arriving at the conclusion that the first respondent is entitled to the payment of gratuity, for the purpose of calculation the Appellate Authority has reckoned the monthly salary of the first respondent at Rs. 11,006/-. 3. The case of the petitioner herein is that the Appellate Authority has arrived at the conclusion without providing opportunity to the petitioner and also on the wrong assumption of the quantum of the salary that has been reckoned for the purpose of calculation. 4. Insofar as the denial of opportunity, it is contended that on receipt of notice at the first instance the petitioner had addressed a letter dated 17-4-2010 seeking adjournment but thereafter the Appellate Authority has not notified the conduct of the further proceedings and as such the petitioner was not in a position to appear and put forth their contentions. 5. With regard to the salary it is disputed that a sum of Rs. 11,006/- was been paid to the first respondent. The learned Counsel for the first respondent would however rely on a salary certificate to contend that the salary as reckoned by the Appellate Authority is justified. 5. With regard to the salary it is disputed that a sum of Rs. 11,006/- was been paid to the first respondent. The learned Counsel for the first respondent would however rely on a salary certificate to contend that the salary as reckoned by the Appellate Authority is justified. Apart from the fact that the petitioner herein is disputing the said salary certificate, what is also necessary to be noticed is that even in the said salary certificate to compute the sum of Rs. 11,006/-, the HRA has also been included. The said amount will not be available for the purpose of calculation. Hence this aspect be considered by the Appellate Authority. The correct salary paid to the first respondent is to be taken into consideration. Hence, to the said extent the order passed by the Appellate Authority is to be set aside and a direction is to be issued to reconsider the matter after providing opportunity to both the parties. Since as noticed, only the quantum of the salary is in dispute, in any event such reconsideration can only be subject to terms. Therefore, the petitioner shall pay 50% of the amount as ordered by the Appellate Authority through the impugned order dated 17-5-2010 to the first respondent within three weeks. The Appellate Authority shall thereupon restore the appeal, provide opportunity to the parties and dispose of the matter as expeditiously as possible but not later than three months from the date on which the parties appear before the Appellate Authority. Needless to mention if the 50% of the amount as ordered is not paid by the petitioner to the first respondent within three weeks, there would be no need for the Appellate Authority to restore the appeal and the order dated 17-5-2010 would be available for execution. In terms of the above, the petition stands disposed of.