Reasonable time must be granted to the appellant for curing the default: Chhattisgarh High Court
To prevent injustice, a reasonable amount of time must be granted to the appellant or the appellant authority to point out the default and also cure the default so the appeal can be heard on merits. This was decreed by the Hon’ble Justice Shri P. Sam Koshy in the case of The Sub Area Manager South Eastern Coalfields Ltd. Vs. Shri Anam and ors. [WPL No. 26 of 2021] on the 20th of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, he respondent no.1 was employed by the petitioner on the post of General Mazdoor Category- I. However, in the course of his employment a complaint was received in respect of his getting employment by impersonating himself. Subsequently, a disciplinary proceeding was initiated and the respondent no.1 was terminated from service vide order dated 30.04.2018. The order of termination from service has not been challenged by the employee before any Court of law. Subsequently, the respondent no.1 preferred an application before the Controlling Authority for payment of gratuity under the Payment of Gratuity Act. The Controlling Authority vide order dated 11.03.2020 passed an order holding that the respondent no.1 is entitled for payment of gratuity to the tune of Rs.20,00,000. The order of the Controlling Authority was subjected to challenge before the Appellate Authority i.e., the respondent no.3 under Section 7(7) of the Payment of Gratuity Act. The respondent no.3 vide impugned order dated 28.09.2020 dismissed the appeal of the present petitioner on the ground that the appeal has not been properly constituted as is required under the provisions of Sub Section 7 of Section 7 of the Payment of Gratuity Act. According to the Appellate Authority, the petitioner was required to deposit the entire amount awarded by the Controlling Authority, and refused to accept a Demand Draft of RS. 1636343/= which was the actual amount of Gratuity the employee would have got had he permitted to be retired, and the appeal thus has been rejected. Aggrieved by this, the present petition has been filed. The counsel for the petitioner submits that, the quantum arrived at by the Controlling Authority is without any basis and is also without any proper calculation in terms of the entitlement under the Payment of Gratuity Act as per the salary received by the employee under the petitioner. the petitioner company themselves had calculated gratuity amount in accordance with the provisions of law governing the Payment of Gratuity Act upon the petitioner establishment and found that the employee would have been entitled for an amount of Rs.16,36,343. The counsel for the respondent however refutes this argument and claims the payment. The learned judge heard the submissions of both the parties. To answer the whether the order of the Appellate Authority rejecting the appeal for want of deposit of the amount quantified by the Controlling Authority to be proper, legal and justified or not, the court relied on section 7 (7) of the Payment of gratuity act. plain perusal of the second proviso to Sub Section 7 of Section 7 would clearly reveal that the statute mandates for the employer to deposit the amount as per Sub Section 4 of Section 7 of the Payment of Gratuity Act and the certificate of the deposited amount be accompanied with the memo of appeal. It was observed that, Once when the dispute is left for the Controlling Authority to be decided and the Controlling Authority passes an order determining the amount of gratuity payable to the employee then under the second proviso to Sub Section 7 of Section 7, the employer should deposit the entire amount awarded by the Controlling Authority. The employer ought to have deposited the entire amount and immediately pressed upon hearing of an appeal or at least an interim application seeking for stay of the disbursement by the Controlling Authority.
1AFRHIGH COURT OF CHHATTISGARH AT BILASPURWPL No. 221The Sub Area Manager South Eastern Coalfields Ltd. Ncph Colliery Chirmiri Area Post Office Haldibadi District Korea Chhattisgarh. Petitioner Versus 1.Shri Anam S o Late Dina Ex Pump Operator Old Mines Quarter AtP.O. West Chirmiri Colliery District Korea Chhattisgarh 4977732.Controlling Authority And The Regional Labour CommissionerBilaspur Chhattisgarh.3.Deputy Chief Labour CommissionerGovernment Of India Ministry Of Labour And Employment Raipur Chhattisgarh. Respondents For Petitioner:Mr. Vivek Chopda Advocate For Respondents No. 2 & 3:Mr. Ramakant Mishra Asstt. S.G. along with Mr. Amit Banerjee AdvocateHon ble Shri Justice P. Sam KoshyOrder on Board20 07 20211.Aggrieved by the order of the respondent no.3 dated 28.09.2020delivered upon the petitioner on 08.10.2020 passed in PGA 15 2020the present writ petition has been filed. 2.The facts of the case in brief are that the respondent no.1 wasemployed by the petitioner on the post of General Mazdoor Category I. However in the course of his employment a complaint was receivedin respect of his getting employment by impersonating himself.Subsequently a disciplinary proceeding was initiated and therespondent no.1 was terminated from service vide order dated30.04.2018. 23.The order of termination from service has not been challenged by theemployee before any Court of law. Subsequently the respondentno.1 preferred an application before the Controlling Authority forpayment of gratuity under the Payment of Gratuity Act. The matterwas registered as Case No. BSP 36(71) 2019 RLC. The ControllingAuthority vide order dated 11.03.2020 passed an order holding thatthe respondent no.1 is entitled for payment of gratuity to the tune ofRs.20 00 000. The order of the Controlling Authority was subjected tochallenge before the Appellate Authority i.e. the respondent no.3under Section 7(7) of the Payment of Gratuity Act. The respondentno.3 vide impugned order dated 28.09.2020 dismissed the appeal ofthe present petitioner on the ground that the appeal has not beenproperly constituted as is required under the provisions of SubSection 7 of Section 7 of the Payment of Gratuity Act. According tothe Appellate Authority the petitioner was required to deposit theentire amount awarded by the Controlling Authority and refused toaccept a Demand Draft of RS. 1636343 = which was the actualamount of Gratuity the employee would have got had he permitted tobe retired and the appeal thus has been rejected.4.The contention of the learned counsel for the petitioner is that thequantum arrived at by the Controlling Authority is without any basisand is also without any proper calculation in terms of the entitlementunder the Payment of Gratuity Act as per the salary received by theemployee under the petitioner. According to the counsel for thepetitioner the petitioner company themselves had calculated gratuityamount in accordance with the provisions of law governing the 3Payment of Gratuity Act upon the petitioner establishment and foundthat the employee would have been entitled for an amount ofRs.16 36 343 for which a demand draft was also prepared andpresented along with the memo of appeal which has not beenaccepted by the Appellate Authority while rejecting the appeal. 5.The bone of contention in the present writ petition is whether the orderof the Appellate Authority rejecting the appeal for want of deposit ofthe amount quantified by the Controlling Authority to be proper legaland justified or not 6.For proper understanding of the case it would be relevant at thisjuncture to take note of the provisions of Sub Section 7 of Section 7 ofthe Payment of Gratuity Act which for ready reference is beingreproduced hereinunder:“7(7). Any person aggrieved by an order under sub sectionor deposits with the appellateauthority such amount.]” 47.A plain perusal of the second proviso to Sub Section 7 of Section 7would clearly reveal that the statute mandates for the employer todeposit the amount as per Sub Section 4 of Section 7 of the Paymentof Gratuity Act and the certificate of the deposited amount beaccompanied with the memo of appeal. In view of the requirement ofthe second proviso it would be relevant to take note of the provisionsof Sub Section 4 which again for ready reference is being reproducedhereinunder:“(4)(a). If there is any dispute to the amount of gratuity payableto an employee under this Act or as to the admissibility of anyclaim of or in relation to an employee for payment of gratuity or as to the person entitled to receive the gratuity theemployer shall deposit with the controlling authority suchamount as he admits to be payable by him as gratuity.Where there is a dispute with regard to any matter ormatters specified in clausethe employer or employee orany other person raising the dispute may make an applicationto the controlling authority for deciding the dispute.(c) The controlling authority shall after due inquiry and aftergiving the parties to the dispute a reasonable opportunity ofbeing heard determine the matter or matters in dispute and if as a result of such inquiry any amount is found to be payableto the employee the controlling authority shall direct theemployer to pay such amount or as the case may be suchamount as reduced by the amount already deposited by theemployer.(d) The controlling authority shall pay the amount deposited including the excess amount if any deposited by theemployer to the person entitled thereto.(e) As soon as may be after a deposit is made under clausethe controlling authority shall pay the amount of the deposit—(i) to the applicant where he is the employee or(ii) where the applicant is not the employee to the 5[nominee or as the case may be the guardian of suchnominee or] heir of the employee if the controllingauthority is satisfied that there is no dispute as to theright of the applicant to receive the amount of gratuity.”8.If we read the clauses of Sub Section 4 it would clearly establish thatClauseand Clauseare stages which have to be applied beforethe Controlling Authority finally adjudicates upon a matter. However only if the matter is left for the Controlling Authority to be decided thenSub sectionandwould come into play. Once when the disputeis left for the Controlling Authority to be decided and the ControllingAuthority passes an order determining the amount of gratuity payableto the employee then under the second proviso to Sub Section 7 ofSection 7 the employer should deposit the entire amount awarded bythe Controlling Authority. The employer ought to have deposited theentire amount and immediately pressed upon hearing of an appeal orat least an interim application seeking for stay of the disbursement bythe Controlling Authority. 9.In the instant case the petitioner company have not deposited theentire amount as awarded by the Controlling Authority and on thecontrary they have deposited something which according to theircalculation is proper. In the opinion of this Court depositing of anamount which according to the employer is correct calculation after anorder of the Controlling Authority after adjudication by the ControllingAuthority where the Controlling Authority passes a final order will be incontravention to Sec 7.7 of the Act. After the final order is passed bythe Controlling Authority it has to be the final amount awarded by theControlling Authority which needs to be deposited. 610.According to the learned counsel for the petitioner since the amountof Rs.20 00 000 was not deposited at the time of filing of appeal butonly an amount of Rs.16 36 343 was deposited by way of a DemandDraft the Appellate Authority refused to accept the same and haverejected the appeal on the ground that the entire amount has notbeen deposited. It is further contended that the Management of SECLfurther tried to deposit the entire amount of Rs.20 00 000 before theAppellate Authority which too has been not accepted by the AppellateAuthority stating that since the appeal has already been rejected byhim earlier the subsequent amount cannot be accepted by him.11.At this stage learned counsel for the petitioner submits that theappellate authority at least ought to have pointed out the default andshould have granted some period of time to cure the default so thatthe appeal could be heard on merits and prayed for at least this Courtmay direct the Appellate Authority to permit the petitioner to depositthe entire amount once again and let the appeal be decided onmerits. According to the counsel or else substantial injustice couldhappen to the Petitioner as the respondent no.1 who had obtainedemployment by impersonation would be again benefited by anotherhuge amount of Rs. 20 00 000 in terms of the order of the ControllingAuthority. 12.Given the submission by the learned counsel for the petitioner andtaking note of the fact that the impugned order of the AppellateAuthority does not reveal any opportunity being granted to thepetitioner for curing the default. Accordingly the impugned orderAnnexure P 1 deserves to be set aside only on this limited ground of 7not granting the appellant some reasonable time for curing thedefault which is otherwise the condition precedent for entertaining anappeal under Section 7(7) of the P.G. Act. In the opinion of this Court ends of justice would meet if the matter is remitted back to theAppellate Authority with a direction to the petitioner to ensure that theentire amount awarded by the Controlling Authority is depositedbefore the Appellate Authority within a further period of 2 weeks fromthe date of receipt of copy of this order. The appellate Authority shallthereafter consider the appeal on its own merits in accordance withlaw and decide the same at the earliest. 13.The writ petition accordingly stands disposed of.Sd (P. Sam Koshy)JudgeVed 