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2016 DIGILAW 299 (GUJ)

Deek Printers v. Regina Samuel Christian

2016-02-08

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Thakkar, learned advocate for the petitioner, and Mr. Mishra, learned advocate for the respondent No. 1. 2. In present petition, the petitioner has brought under challenge order dated 30.6.2005 passed by the appellate authority constituted under the provisions of the Payment of Gratuity Act, 1972 [hereinafter referred to as "the Act"] in Gratuity Appeal No. 55 of 2004 whereby the appellate authority directed the petitioner to pay a sum of Rs. 2,33,653/- towards gratuity with interest at the rate of 10%. 3. The petitioner employer has challenged the said order on diverse grounds. 4. After hearing the petitioner, the Court passed order dated 1.8.2005 and by way of ad-interim relief, stayed the implementation and operation of the impugned order passed by the appellate authority. 4.1 Thereafter, vide order dated 23.12.2005, the Court admitted the petition and also confirmed the ad-interim relief granted vide order dated 1.8.2005. The said order has continued and enured until now. 5. One of the grounds of challenge against the impugned order is that a settlement was arrived at between the petitioner establishment and the workman under which all amounts payable to the workman, including the amount payable towards the gratuity were paid and that therefore, the claim raised under the provisions of the Act by the widow of the workman was not maintainable and should not have been entertained. 5.1 The second ground on which the petitioner employer assailed the impugned order was that after the establishment was closed and the dues were paid to all workmen, the concerned employee was awarded contract for executing certain jobs/works and he undertook the work as contractor for which amounts were paid to the concerned workman in accordance with the terms of the contract, however, the appellate authority failed to appreciate the said fact and misconstrued the agreement/contract and treated the amount paid in accordance with terms of the job contract as amount of salary and passed the award treating the said amount as salary. 5.2 It was further claimed by the petitioner employer to establish the fact that the amount was paid under an agreement/contract, the agreement itself was placed on record and before the controlling authority/appellate authority, and that even the Income Tax Returns filed by the concerned workman was placed on record since the returns filed by the concerned workman before the Income Tax Authority reflected that the amount paid to the concerned workman during the relevant period was, shown by the concerned workman as "income from other source" and not by way of "income from salary" and, according to the petitioner, the said description in the Income Tax Returns by the claimant himself supported the case that the amount paid during the relevant period was under terms of the job contract and not as salary and that therefore, could not have been made base for calculating and/or awarding any amount towards gratuity. 5.3 The petitioner employer also relied on the returns/forms filed by the petitioner under the provisions of the Contract Labour Act wherein name of the concerned workman was shown as one of the contractors working with the petitioner and the details about the contract awarded to the claimant and the fact that while executing the contract, the claimant himself was an employer and employed persons to execute the contract awarded to him and those details were mentioned in the said form filed under the provisions of the Contract Labour Act which, according to the petitioner, established its case that the claimant, after closure of the establishment, was undertaking job contracts and one of such contract was awarded to him by the petitioner. 5.4 According to the petitioner, the said documents and other relevant evidence which was available on record before the appellate authority was completely ignored by the appellate authority and the appellate authority passed the impugned order in total disregard to the evidence on record. 5.5 It was also contended that the controlling authority was right and justified in rejecting the application filed by the widow of the concerned workman, however, the appellate authority committed error in setting aside the order of the controlling authority and passing the impugned order. 6. 5.5 It was also contended that the controlling authority was right and justified in rejecting the application filed by the widow of the concerned workman, however, the appellate authority committed error in setting aside the order of the controlling authority and passing the impugned order. 6. This petition was listed for hearing before this Court on 22.1.2016 and thereafter, the hearing was adjourned at the joint request of the learned advocates for the parties who, considered, in light of the facts of the case and having regard to and after taking into account the contentions raised by the petitioner against the impugned order and after taking into consideration the documents on record considered that attempt for amicable settlement should be made so that litigation may be put to final end and the widow of the concerned workman, being the legal representative, can receive the amount at an early date and without further litigation. The parties being of such view entered into deliberations and negotiations. So as to enable the parties to discuss the possibility of the settlement, hearing of the petition was adjourned on couple of occasions. 6.1 The petition was listed on 25.1.2016 when below quoted order was passed:- "The daughter of the respondent is present in the Court. Upon instructions from her, Mr. Mishra, learned counsel, requested for some time to consider the offer of the petitioner, who has declared that the petitioner is ready to pay the principal amount of the decree passed by the appellate authority, i.e. Rs. 2,33,653/-, provided the respondent voluntarily forgoes the interest. Mr. Mishra, learned counsel, submitted that the respondent needs time to consider the offer. Therefore, at his request, hearing is adjourned. S.O. to 5.2.2016." 6.2 Accordingly, the petition was adjourned to 5.2.2016. 6.3 On 5.2.2016, the widow of the concerned workman and her daughter attended the hearing. In their presence, learned advocate for the petitioner and learned advocate for the respondent conducted further discussion and the Court was informed that after discussion in presence of the respondent, i.e. widow of the concerned workman and her daughter, the parties have arrived at an amicable settlement and the petitioner has agreed to pay the principal amount and the respondent has agreed to waive the interest component and to accept the principal amount as full and final settlement of the claim towards gratuity. 6.4 The parties and the learned advocates informed the Court that they will execute consent terms by incorporating the terms and conditions of the agreement and the duly signed and executed consent terms will be filed on record. 6.5 Accordingly, the parties have executed the consent terms dated 5.2.2016 which is signed by the daughter of the concerned workman and the respondent (the respondent is the widow of the concerned workman) and her signature is identified by the learned advocate for the respondent. 6.6 The learned advocate for the respondent has also signed the consent terms dated 5.2.2016. Mr. Thakkar, learned advocate for the petitioner, has also signed the consent terms. According to the consent terms, the petitioner has agreed to pay and the respondent (heirs and legal representatives of the employee) have agreed to accept Rs. 2,33,653/- as full and final payment in compliance of the impugned order. 7. Having regard to the principal amount towards gratuity as mentioned in the impugned order is Rs. 2,33,653/-, it was suggested to the petitioner that it may agree to pay a sum of Rs. 2,50,000/- instead of Rs. 2,33,653/-. The petitioner agreed to such modification in the consent terms and thereby, the settlement is finalized in Rs. 2,50,000/-. The parties have tendered the consent terms dated 5.2.2016 on record of this petition and jointly submitted that appropriate and necessary order in terms of the settlement may be passed and the petition may be disposed of in light of the settlement by modifying the impugned order accordingly. 7.1 The Court was informed that a cheque for the amount of Rs. 2,50,000/- will be handed over to the learned advocate for the respondent on 8.2.2016 (since the petitioner had brought a cheque in sum of Rs. 2,33,653/- as per the original agreement, a fresh cheque was required to be drawn). Therefore, though the consent terms was tendered on record of the petition on 5.2.2016 with a request to pass appropriate order, the proceedings were adjourned to 8.2.2016, i.e. today. 7.2 Today, the Court is informed that cheque in sum of Rs. 2,50,000/- is handed over to the learned advocate for the respondent. Mr. Mishra, learned advocate for the respondent, in turn, informed the Court that he has handed over the cheque to the daughter of the respondent. Accordingly, the agreed amount of Rs. 7.2 Today, the Court is informed that cheque in sum of Rs. 2,50,000/- is handed over to the learned advocate for the respondent. Mr. Mishra, learned advocate for the respondent, in turn, informed the Court that he has handed over the cheque to the daughter of the respondent. Accordingly, the agreed amount of Rs. 2,50,000/- is paid by cheque to the respondent which is accepted in full and final settlement of the claim towards the gratuity. 8. In this view of the matter, at the joint request of learned advocate for the petitioner and learned advocate for the respondent as well as in light of the submission by the daughter of the respondent that the cheque for agreed amount is received, the petition is disposed of in light of and on the basis of the terms of the consent terms dated 5.2.2016. 8.1 The order passed by the appellate authority is modified in terms of the said consent terms dated 5.2.2016. Present petition accordingly stands disposed of. Rule is made absolute to the aforesaid extent. Orders accordingly.