JUDGMENT : K.M. THAKER, J. 1. Heard Mr. Dave, learned advocate for the petitioner and Mr. Mishra, learned advocate for the respondent workman. 2. In present petition, the order passed by the controlling authority in Gratuity Claim Application No. 119 of 2009 and the order passed by the appellate authority in Appeal No. 14 of 2011 are placed under challenge. 3. By the impugned orders, the controlling authority has directed present petitioner to pay Rs.66,000/- towards gratuity to the respondent with interest at 10% from 24.7.1990 4. Feeling aggrieved by the said order dated 13.1.2011 passed by the controlling authority, the petitioner filed appeal before the appellate authority who rejected the appeal vide order dated 30.8.2011 5. The factual background involved in present petition can be summarized thus:- 3.1 The respondent was appointed by Gujarat Matsya Udhyog Vikas Nigam Limited [hereinafter referred to as “Nigam”] vide appointment order dated 30.3.1979 In pursuance of the said appointment order, the respondent joined the service with the said Nigam w.e.f 11.4.1979 Thus, the respondent's date of joining in service is 11.4.1979 3.2 It appears that somewhere in 1983-1984, a criminal complaint for the charge of misappropriation of amount was filed against the respondent and subsequently, in connection with the said allegation, Criminal Case No. 829 of 1984 was filed against the respondent. 3.3 The learned trial Court convicted the respondent vide judgment dated 31.1.1989, however, the learned trial Court also granted probation to the respondent under the Act. 3.4 After the learned trial Court convicted the respondent, the said Nigam dismissed present respondent from service vide dismissal order dated 16.7.1990 3.5 It appears that a private party (complainant) filed criminal revision application (which was registered as criminal revision application No. 366 of 1989) against the decision dated 31.1.1989 the said criminal revision application came to be disposed of by this Court vide order dated 24.1.1996 3.6 Before proceeding further, it is relevant to mention that the respondent did not challenge the said termination order dated 16.7.1990 and the said order has attained finality. 3.7 It is pertinent that even after the High Court dismissed the criminal revision application vide order dated 24.1.1996, the respondent did not challenge the said termination order and did not take any steps for seeking reinstatement in service on the ground that he was granted probation by the learned trial Court. 3.7 It is pertinent that even after the High Court dismissed the criminal revision application vide order dated 24.1.1996, the respondent did not challenge the said termination order and did not take any steps for seeking reinstatement in service on the ground that he was granted probation by the learned trial Court. 3.8 It is pertinent to note that 13 years after the High Court disposed of the criminal revision application, the respondent suddenly woke-up from his slumber and submitted Form I to present petitioner, i.e. demand for gratuity to the employer in February 2009. 3.9 At this stage, it is relevant to note that the respondent's parent organization i.e. the Nigam where the respondent was appointed and employed and wherefrom his service came to be terminated came to be merged by Government's order with the petitioner Gujarat Fisheries Central Cooperative Association Limited [hereinafter referred to as “Cooperative Association”]. 3.10 The said merger took place in 1998 i.e. almost 8 years after the service of the respondent was terminated. 3.11 As mentioned above, the respondent submitted Form I dated 24.2.2009 to present petitioner. The petitioner did not entertain the claim of present respondent and that therefore, in June 2009, the respondent filed gratuity claim application before the controlling authority. The said gratuity claim application (Form N) was registered as Gratuity Claim Application No. 199 of 2009. 3.12 The petitioner appeared before the controlling authority, however, did not file any reply. 3.13 It appears that the controlling authority decided the said application on the ground and belief that the respondent was acquitted by the learned trial Court and even criminal revision application was dismissed. 3.14 The controlling authority also did not take into account the fact that the application was filed against the Cooperative Association where the respondent was never employed and where he had never worked. 3.15 The controlling authority proceeded on the premise and belief that the claimant was acquitted and the Cooperative Association had not passed any order of forfeiture of gratuity and that therefore, the claimant is entitled for gratuity. 3.15 The controlling authority proceeded on the premise and belief that the claimant was acquitted and the Cooperative Association had not passed any order of forfeiture of gratuity and that therefore, the claimant is entitled for gratuity. 3.16 The controlling authority being of such view passed order dated 13.1.2011 with direction to present petitioner to pay Rs.66,000/- with interest at 10% from 24.7.1990 The said order is confirmed by the appellate authority vide his order dated 30.8.2011 The appellate authority has also proceeded on the premise that since the employer had not passed any order of forfeiture of gratuity, the claimant is entitled for gratuity. 6. Mr. Dave, learned advocate for the petitioner, submitted that both the orders are erroneous and unjustified and arbitrary. According to learned advocate for the petitioner, the authorities have failed to appreciate that the claimant was not employee of the Cooperative Association and that his service was terminated in 1990 by the Nigam and that therefore, his claim against the Cooperative Association was not maintainable. He also submitted that the claim application which was filed after inordinate delay of more than 13/15 years could not have been terminated in absence of any application seeking condonation of delay and in absence of sufficient cause. He submitted that even the criminal revision application was dismissed in January 1996 and even thereafter, the claimant had not taken any steps for almost 13 years and thereafter filed the proceedings, which could not have been entertained in absence of application seeking condonation of delay and that too against an establishment where he was never employed and where he never worked. He also submitted that the claimant was not transferred to the petitioner Cooperative Association and without appreciating the said fact, the authorities passed the impugned orders. According to learned advocate for the petitioner, the respondent never challenged his termination order and any order directing reinstatement of the respondent is not passed and that therefore also, the claim by the respondent against the petitioner is unjustified and orders against present petitioner could not have been passed. 7. Mr. Mishra, learned advocate for the respondent claimant, could not dispute and could not deny the fact that any application seeking condonation of delay was not filed alongwith the gratuity claim application No. 199 of 2009 and even in claim application, any request for condonation of delay was not made. 7. Mr. Mishra, learned advocate for the respondent claimant, could not dispute and could not deny the fact that any application seeking condonation of delay was not filed alongwith the gratuity claim application No. 199 of 2009 and even in claim application, any request for condonation of delay was not made. With reference to petitioner's contention that the respondent was not employed by the petitioner, Mr. Mishra, learned advocate for the respondent submitted that after merger all assets and properties of the Nigam have been transferred to and taken over by present petitioner Cooperative Association and that therefore, the respondent's claim against the petitioner is justified and maintainable. He also did not dispute the fact that the dismissal order is not challenged by the claimant and any order directing his reinstatement in service is also not passed by any Court. 8. I have considered the submissions by learned advocates for the petitioner and respondent. I have also considered the material on record and impugned orders. 9. Initially, upon considering the petitioner's objection that the controlling authority and the appellate authority entertained the application without accompanying request for delay condonation, this Court was inclined to remand the proceedings to the controlling authority for fresh consideration after taking into account the request for condonation of delay and the justification in support of the request. 10. However, when the learned advocate for the petitioner narrated other relevant details, it has emerged that the proceedings in entirety are not sustainable and the controlling authority as well as the appellate authority have not considered relevant facts. 11. Even for consideration of relevant facts in light of proper evidence, the proceedings could have been remanded, however, on proper examination of relevant facts, it appears that the remand of the proceedings before the controlling authority would be exercise in futility and would result into unnecessary consumption of time. 12. From the material on record and submissions by learned advocates, following undisputed facts have emerged:- [a] The respondent claimant was appointed by the Nigam vide appointment order dated 30.3.1979 and the respondent joined the service w.e.f 11.4.1979 Therefore, he was employee of said Nigam. [b] A criminal case against the respondent came to be instituted in 1984. The said criminal case was registered before the learned JMFC, Rajula as Criminal Case No. 829 of 1984. The respondent/claimant was accused in the said case. [b] A criminal case against the respondent came to be instituted in 1984. The said criminal case was registered before the learned JMFC, Rajula as Criminal Case No. 829 of 1984. The respondent/claimant was accused in the said case. [c] The said Nigam placed the respondent under suspension after institution of said criminal case. [d] The learned trial Court passed judgment dated 31.1.1989 in said Criminal Case No. 829 of 1989 and convicted the respondent, however, the learned trial Court also granted probation vide said judgment dated 31.1.1989 [e] Having regard to the said fact, above mentioned Nigam dismissed the respondent from service vide order dated 16.7.1990 [f] The said dismissal order has attained finality, inasmuch as the respondent never challenged the said termination order. [g] Thus, the respondent's service stood terminated w.e.f July 1990. [h] A private party, probably the complainant, filed criminal revision application against the judgment dated 31.1.1989 passed by learned trial Court. The said criminal revision application No. 366 of 1989 was dismissed vide judgment dated 24.1.1996 [i] In the meanwhile, somewhere in 1998 i.e. almost 8 years after present respondent's service was dismissed by the Nigam, the said Nigam merged with present petitioner Cooperative Association. [j] At that time also, i.e. even in 1998, the respondent herein did not raise any claim, demand or dispute against termination of his service against present petitioner or for retiral benefits including gratuity. [k] Even after the order dated 24.1.1996 whereby the criminal revision application came to be rejected, the respondent did not take any action either against his termination from service or for demanding gratuity. [l] It was as late as in 2009 i.e. almost 19 years after his dismissal from service, the respondent raised claim for gratuity by submitting Form I dated 24.2.2009 When he filed application (Form-N) before the controlling authority, any request for condonation of delay was not made. It is in this background, that the respondent's claim is to be considered. 13. It is in this background, that the respondent's claim is to be considered. 13. On perusal of the impugned orders, it becomes clear that the authorities have not considered any relevant issue including as to whether the claimant can at all be considered employee of present petitioner Cooperative Association, more particularly when he was not in service of the Nigam since about 8 years before the merger, and the issue with regard to maintainability of gratuity claim by present respondent is also not considered in light of the fact that the claimant came to be dismissed from service in 1990 and the said order is not challenged and has not been set aside and since 1990, the claimant never raised any demand for gratuity against the said Nigam. 14. The case of the claimant was also required to be examined in light of the fact that the claimant was never transferred to present petitioner Cooperative Association and that therefore, his claim for gratuity against present petitioner would not be maintainable when there was no employer-employee relationship between the parties. 15. On examination of impugned orders, it becomes clear that the aforesaid and such other relevant aspects have not been addressed and decided by the authorities. 16. The question, which, therefore, arise is whether for decision by the controlling authority, the case should be remanded. 17. On consideration of facts and circumstances of the case and above mentioned chronology of events and the legal consequences on account of respondent's dismissal from service and absence of any challenge against the dismissal order and fact that the claimant was not employee of present petitioner, it appears that any order remanding the proceedings to controlling authority for consideration of facts would be an exercise in futility. In this context, it is relevant to note that even in this petition any substantial ground is not made out in light of which it can be said that the workman has strong case on merits and bright chance of success. Actually, the respondent has failed to make out even prima-facie case in his favour or in support of the request to remand the case. In this context, it is also relevant to note that:- [a] The respondent's claim is hit by inordinate delay of 19 years. Neither before the authority nor in the petition any explanation with regard to such inordinate delay is offered by the respondent. In this context, it is also relevant to note that:- [a] The respondent's claim is hit by inordinate delay of 19 years. Neither before the authority nor in the petition any explanation with regard to such inordinate delay is offered by the respondent. [b] The service of the respondent did not come to an end by any of the mode mentioned under Section 4(1) of the Act. Entitlement for gratuity arises upon cessation of service by any of the mode mentioned under Section 4(1) of the Act. [c] The service of the respondent was never transferred to the cooperative society. He was appointed by the Nigam and until end of his service, he continued as employee of the Nigam. [d] The service of the respondent was terminated while he was employed by the Nigam. The establishment of the Nigam merged with and was transferred to present establishment, almost 8 years after the respondent's service was terminated. 18. For all these reasons, the respondent cannot have any claim against the cooperative society i.e. the petitioner herein. 19. The service of the respondent came to be terminated by way of dismissal on the ground of involvement in commission of criminal offence. The respondent came to be terminated from service after conviction and the said conviction has attained finality. 20. The authorities under the Act failed to appreciate above mentioned relevant factual aspects and passed impugned orders by overlooking and disregarding relevant aspects mentioned above. Consequently, the orders by the authorities are vitiated on the ground of non-application of mind and also on the ground that relevant aspects have been disregarded and also on the ground that the authorities misconstrued the provisions under the Act and misapplied relevant provisions. 21. The learned advocate for the respondent tried to justify his demand only on the ground that the assets and properties of the erstwhile Nigam are taken over by present petitioner. Merely on that ground, his claim against present petitioner would not become maintainable, more particularly when the claim is hit by vice of inordinate delay of 19 years and when his service did not come to end by any of the modes mentioned under Section 4(1) of the Gratuity Act, but his service came to an end on account of dismissal after conviction and the said conviction has attained finality, (though the respondent was granted probation). 22. 22. For all these reasons, this Court is of the view that remand of the proceedings in present case would not be proper course of action or remedy. 23. On overall consideration of facts and circumstances of the case, this Court is of the view that the respondent's claim of gratuity almost 19 years after his dismissal from service after conviction for commission of offence and almost 13 years after the dismissal of revision application is unjustified and unsustainable and such claim cannot be entertained. Therefore, this petition should succeed. Consequently, following order is passed:- 24. The petition is allowed. The impugned orders passed by the controlling authority and the appellate authority are set aside. Rule is made absolute to the aforesaid extent.