Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1181 (KAR)

Karnataka TV Accessories v. J. H. Vanishri

2019-06-10

P.B.BAJANTHRI

body2019
ORDER : In these two writ petitions, petitioners have assailed Annexure ‘A’ dated 30.4.2014 and Annexure ‘B’ dated 30.9.2015 by which the Controlling Authority and Appellate Authority have passed an order in favour of the 1st respondent-employees. 2. The undisputed facts are that 1st respondent in both the petitions are said to have been appointed with the petitioner on 2.3.1991 and 10.6.1996 respectively. They have resigned the post held by them on 29.3.2006. For the first time, they issued a notice in the year 2012 claiming gratuity. Application for payment of gratuity was decided on 30.4.2014 by the Controlling Authority while appraising the fact that petitioners could not produce attendance register and payment register of the employees for the relevant period 2005-06. Thus, both the Authorities have proceeded to pass orders in favour of the 1st respondent in both the petitions on the presumption that petitioner is liable to pay gratuity to them. 3. Learned counsel for the petitioner vehemently contended that management is not required to maintain the documents of the year 2005-2006 in the year 2012-2013 in view of Section 13A(2) of the Payment of Wages Act, 1936. He has also pointed out to Rule 24 of the Karnataka Shops and Commercial Establishments Act, 1961, where management is required to maintain such documents for a period of one year. Since the respondents’ claim is belated by six years from the date of their resignation, the question of maintaining the records in the year 2005-06 is impracticable. Therefore in not producing the attendance and payment of register documents of the year 2005-06 in view of statutory provisions cited supra is beyond the control of the petitioner. It was also contended that there is delay on the part of the respondents in both the petitions in not claiming the gratuity within reasonable period of three years and both the authorities have committed an error in not appreciating the aforesaid contention taken by the petitioner. 4. Per-contra, learned counsel for the respondents while supporting the orders of the Controlling Authority and Appellate Authority has contended that even though respondents in both the petitions have resigned the post on 29.3.2006, they were demanding gratuity from the petitioner from time to time. Since there was no response from the petitioner, consequently they were compelled to issue show cause notice in the year 2012 claiming for gratuity. Since there was no response from the petitioner, consequently they were compelled to issue show cause notice in the year 2012 claiming for gratuity. Hence, question of delay and laches do not arise. For want of records, rightly, both the Authorities have come to the conclusion that respondents in both the petitions are entitled for payment of gratuity. 5. Heard the learned counsel for the parties. 6. The question for consideration in the present petitions are: (i) Whether respondents in both the petitions are entitled for payment of gratuity ? (ii) Whether belated claim of the respondents in both the petitions could be entertained by the Controlling Authority and Appellate Authority? 7. Undisputed facts are that respondents in both the petitions were appointed on 2.3.1991 and 10.6.1996 respectively and resigned their job on 29.3.2006. Both the respondents have slept over the matter in respect of claiming payment of gratuity from the petitioner for about six years. Petitioner is not in a position to maintain the records. There is a statutory provision under Section 13A (2) of the Payment of Wages Act, 1936 that employer is required to maintain the records only up to three years. That apart, Rule 24 of the Karnataka Shops and Commercial Establishments Act, 1961 provides for maintaining the records for one year. Therefore, if the respondents in both the petitions claim gratuity beyond three years, petitioner cannot be blamed in view of the statutory provisions cited supra. Hence, the Controlling and Appellate Authorities have committed an error in entertaining the respondent claim for payment of gratuity without examining the statutory provisions. The claim of respondents in both the applications is with reference to the year 2005-06. At the best petitioner can maintain the record of the year 2005-06 till 2009-10. 8. In view of these facts and circumstances, both the Authorities have committed an error in not appreciating the fact of non-production of attendance and payment register by the petitioner, which is beyond the control or even on perusal of the attendance register, it is evident that only six persons were working with the petitioner’s establishment. For the purpose of claiming gratuity, minimum ten persons were required to be working in an organization. Even on this count, the respondents in both the petitions have not established their right for payment of gratuity. 9. Accordingly, both the petitions are allowed. For the purpose of claiming gratuity, minimum ten persons were required to be working in an organization. Even on this count, the respondents in both the petitions have not established their right for payment of gratuity. 9. Accordingly, both the petitions are allowed. Impugned order dated 30.4.2014 passed by respondent No.2 and order dated 30.9.2015 passed by respondent No.3 vide Annexures ‘A’ and ‘B’ respectively stands set aside. The amount in deposit shall be refunded to the petitioner forthwith. Accordingly, I.A.No.1/2018 filed in both the petitions do not survive.