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2016 DIGILAW 1407 (GUJ)

Tara Explosive Ltd. v. Husen Abdul Jari

2016-07-20

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Vyas, learned advocate for the petitioner and Mr. Chaudhari, learned advocate for the respondent. 2. In this petition, after having delayed the submission of appeal against the order passed by the Controlling Authority on 5.1.2008, the petitioner has taken out present petition and challenged the decision of the Appellate Authority of not entertaining the appeal on ground of delay and has also challenged the order dated 5.1.2008 passed by the Controlling Authority on the ground that the Controlling Authority failed to examine two factual issues viz. (a) that the opponent before the Controlling Authority is a partnership concern and at relevant time the concern employed less than 10 persons and therefore the Act would not be applicable; and (b) that the claimant had worked with the firm only for 10 years and not for 35 years as claimed by the claimant. On such contentions, the order dated 5.1.2008 is also placed under challenge. 3. So far as the factual aspects are concerned, it has emerged from rival submissions and also from the record that the respondent herein, i.e. original claimant had approached the Controlling Authority with the allegation that though he was eligible for gratuity, the opponent establishment did not pay gratuity in accordance with the provisions of the Act. 4. With such claim and allegation, the respondent herein filed application before the Controlling Authority and demanded Rs. 44,923/-. 5. The application was filed in or around July 2007. In the application, the original claimant demanded gratuity for 35 years on the basis that he was appointed in 1972 and his service was discontinued with effect from 17.7.2007 and his last drawn salary was Rs. 200/-. 6. It appears that the opponent establishment, i.e. present petitioner opposed the said claim and allegation on the ground that the Act is not applicable to the establishment since it employs less than 10 persons and even otherwise the claimant had worked only for 10 years and not for 35 years. 7. The Controlling Authority heard the contesting parties and passed the order dated 5.1.2008. In the said order dated 5.1.2008, the Controlling Authority has recorded the defence of the establishment and its explanation as to why the gratuity was not paid to the claimant. 7. The Controlling Authority heard the contesting parties and passed the order dated 5.1.2008. In the said order dated 5.1.2008, the Controlling Authority has recorded the defence of the establishment and its explanation as to why the gratuity was not paid to the claimant. At the same time, i.e. after having recorded the contentions of the establishment, the Controlling Authority has also recorded that the establishment failed to lead any evidence and failed to establish that at the relevant time it employed less than 10 persons. 8. The Controlling Authority decided the application only on single ground that present petitioner, i.e. opponent establishment failed to place any evidence on record to prove its factual contentions. 9. Feeling aggrieved by the said order dated 5.1.2008, the petitioner herein, i.e. opponent establishment approached the Appellate Authority with an appeal. However, the appeal was filed beyond period of limitation. Therefore, the Appellate Authority did not entertain the appeal and rejected the appeal without entering into the merits of the allegations of the claimant and the contentions raised by the establishment only on the ground of limitation. 10. Now the petitioner is before this Court against the said orders. 11. Mr. Vyas, learned advocate for the petitioner submitted that the Controlling Authority failed to appreciate the petitioner's contention that the Act is not applicable to the establishment and that the workman had failed to place any evidence to prove that he had worked for 35 years, whereas actually he was in service with the establishment for only 10 years. 12. Per contra, Mr. Chaudhari, learned advocate for the respondent, i.e. original claimant submitted that it was for the petitioner, i.e. opponent to prove that it employed less than 10 persons at the relevant time and therefore, the Act was not applicable, but the petitioner establishment failed to prove the said aspect. He also submitted that according to the claimant, he had worked from 1972 and the establishment did not place any material on record to prove that he had not worked from 1972. 13. I have considered the material on record and rival submissions and I have also examined the order passed by the Controlling Authority. 14. He also submitted that according to the claimant, he had worked from 1972 and the establishment did not place any material on record to prove that he had not worked from 1972. 13. I have considered the material on record and rival submissions and I have also examined the order passed by the Controlling Authority. 14. So far as the decision of the Appellate Authority is concerned, the said decision cannot be faulted in light of the decision by Hon'ble Full Bench of the Court in the case of J.N. Doshi vs. State of Gujarat [2015 (1) GLH 67], wherein it is held that in cases where the power of statutory authorities to condone delay is circumscribed and restricted, then such authority cannot condone the delay beyond prescribed period of limitation. 15. In present case the appeal was, undisputedly, filed beyond prescribed period of limitation and therefore, the appellate authority could not have condoned the delay. 16. In this view of the matter, the decision of the Appellate Authority cannot be faulted. The petition against the appellate authority's order, therefore, deserves to be rejected and it is hereby rejected. 17. Since, the petitioner has also challenged order passed by the Controlling Authority it may be mentioned that actually after the petitioner challenged said order in statutory appeal and the appeal is rejected, there is neither scope nor basis nor justification to consider challenge against the order passed by original adjudicating authority. Besides this, so far as the order of the Controlling Authority is concerned, the Controlling Authority itself has recorded that the petitioner had not placed any document on record to establish that at the relevant time, the establishment employed less than 10 persons. 18. If the petitioner establishment had actually employed less than 10 persons at the relevant time or it was continuously employing less than 10 persons, then the establishment would have and should have placed sufficient evidence, documentary and/or oral evidence e.g. pay register and/or attendance register to establish the said fact. 19. However, for some reasons, which do not come out from the record, the petitioner did not place any evidence on record. 20. In absence of any evidence, there was no option for the Controlling Authority but to accept the claim of the workman and therefore, the order dated 5.1.2008 came to be passed. 21. 19. However, for some reasons, which do not come out from the record, the petitioner did not place any evidence on record. 20. In absence of any evidence, there was no option for the Controlling Authority but to accept the claim of the workman and therefore, the order dated 5.1.2008 came to be passed. 21. In backdrop of facts and circumstances of the case, more particularly in view of the fact that the order is passed on account of absence of evidence from the side of the petitioner, the said decision of the Controlling Authority in final order cannot be faulted by this Court. 22. Further, this Court cannot permit the petitioner to place any evidence, more particularly such evidence (material) which do not form part of record before the controlling authority and/or appellate authority, on record of the petition to establish factual aspect. 23. The said opportunity was required to be taken before the Controlling Authority and such opportunity cannot be granted by this Court at this stage, and that too after so many years. 24. Further, this Court would not enter into the process of examination and re-appreciation of evidence. 25. For all these reasons, the order of the Controlling Authority cannot be interfered with at this stage. 26. Under the circumstances, the petitioner has failed to establish that the order passed by the Controlling Authority deserves to be set aside. It is true that the said order dated 5.1.2008 is passed on account of absence of evidence and not on the basis of the appreciation of evidence. In the order, any conclusion after due appreciation of evidence by both sides is not recorded. The conclusion is essentially passed on account of absence of evidence. Under the circumstances, the said decision cannot act as precedent but at the same time it cannot be faulted in present proceeding. 27. The petition, therefore, fails and deserves to be rejected and is accordingly rejected. Rule is discharged.