JUDGMENT Gita Mittal, J.
1. Learned counsel submits that costs in terms of the last order have been deposited. Copies of receipts have been placed on record before this court.
2. By this writ petition the petitioner has impugned the order dated 3rd February, 2005 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 calling upon the petitioner to show cause as to why legal action may not be initiated against the petitioner on failure to deposit the gratuity amount in terms of the order dated 22nd November, 2004 passed by the Controlling Authority towards gratuity payment of the respondent before filing its appeal impugning the order dated 22nd November, 2004 By this order dated 3rd February, 2005, the Appellate Authority also held that the appeal of the petitioner was not accepted as the petitioner had failed to deposit the amount in terms of the order of the Controlling Authority.
3. The petitioner has contended that the orders passed by the Appellate Authority and the Controlling Authority are liable to be set aside and quashed on ground of violation of principles of natural justice inasmuch as no adequate opportunity was afforded to the petitioner before these orders have been passed. It has also been contended that the petitioner had filed copies of its records Along with the reply filed before the Controlling Authority in support of the appeal which deserved to be considered prior to the passing of the impugned orders.
4. I find that in its order dated 22nd November, 2004, the Controlling Authority has been constrained to pass the order on the failure of the respondent to prove its case before it and to even appear before the authority.
After notice was received by the respondent, the matter had to be adjourned repeatedly as the petitioner failed to put in appearance on 7th October, 2003, 20th October, 2003, 7th November, 2003 and 28th November, 2003. Each time the petitioner was intimated by written notices. Subsequently Shri Naresh Naithani representing the petitioner appeared before the Controlling Authority and sought time to file a reply. By a letter sent by the respondent dated 20th October, 2003, the petitioner had contended that the gratuity in respect of the respondent stood paid and a photocopy of a voucher alleging full and final settlement payment was filed. The present petitioner again did not bother to appear on 5th January, 2004 On 23rd January, 2004, the petitioner received a copy of the respondent's rejoinder and the matter was adjourned for framing of issues to 20th February, 2004 Again it had to be adjourned as the petitioner did not appear. Appearance was put in by the petitioner only on 26th March, 2004 when the petitioner's representative sought time for filing of documents which was granted. From 16th April, 2004 to 5th July, 2004 neither the petitioner put in appearance nor filed any documents in support of his contentions and in these circumstances, the matter was proceeded ex-parte on 2nd August, 2004 Thereafter, the workman filed its evidence. Again notice was issued to the petitioner calling upon it to cross examine the respondents but the petitioner failed to put in appearance. It was in these circumstances that the Controlling Authority passed the order dated 22nd November, 2004 calling upon the petitioner to make payment of gratuity under the Payment of Gratuity Act, 1972 to the respondent.
5. It is noteworthy that by a letter dated 19th April, 2004, the petitioner had informed the Controlling Authority that they have submitted whatever documents were deemed necessary on 12th January, 2004 and that the petitioner had nothing to produce before the authority other than what has been placed before it. An objection was also taken as to why the petitioner was being required to appear again and again before the authority. In these facts, the petitioner's contention that no adequate opportunity was given to it for placing documents and for leading evidence before the controlling authority is wholly without any justification and basis. The order dated 22nd November, 2004 cannot therefore be assailed on any such grounds.
6. The petitioner had impugned the order dated 22nd November, 2004 passed against it by way of an appeal dated 29th December, 2004 before the Appellate Authority who is the Deputy Labour Commissioner. The petitioner made this appeal by an informal communication wherein it was stated that all relevant papers regarding the contentions set up by the petitioner were produced before the Controlling Authority and that because there was full and final settlement of dues with the employee, therefore, the appeal deserves to be allowed.
7. An appeal is provided under the provisions of Section 7(7) of the Payment of Gratuity Act, 1972. It is necessary to notice the requirement of this provision of the statute which reads thus:-
7. Determination of the amount of gratuity -
(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf: Provided that the appropriate Government or the appellate authority, as the case may be, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days:
[Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or - deposits with the appellate authority such amount.]
8. It is therefore the legislative mandate that no appeal filed by an employer shall be admitted unless the same is accompanied with a certificate of the controlling authority to the effect that the appellant had deposited an amount equal to the amount of gratuity which was required to be deposited. Liberty is given to to employer to deposit such amount even with the Appellate Authority.
9. In the present case, the admitted position is that the petitioner has not complied with this mandatory provision and its appeal was not accepted for this reason. The order passed by the Appellate Authority is therefore in consonance with the requirement of Section 7(7) of the Payment of Gratuity Act, 1972 and therefore cannot be faulted.
10. The petitioner has placed reliance on a letter dated 10th February, 2005 which has been addressed to the Appellate Authority wherein again it is stated that it has nothing new to say other than what has already been said in its appeal and that a decision may be taken on the basis of what has already been submitted by the petitioner in respect of payments allegedly made to the workman. Before this court it has been contended that the letter dated 3rd February, 2005 has been received by the petitioner at 3 p.m. on 9th February, 2005 even though the petitioner was required to appear before the Appellate Authority on 9th February, 2005 at 11.30 a.m. By the notice dated 3rd February, 2005, the petitioner was informed that its appeal was not maintainable for having failed to deposit the amount as it was statutorily required. Notice to show cause was issued limited to the issue of depositing the amount of Rs. 22,615/- failing which action would be initiated against the petitioner as per law. Such deposit has not been made at any time thereafter. Therefore even if the petitioner's submission that it has received the letter dated 3rd February, 2005 after the scheduled time would be of no consequence to the fate of its appeal. It was in the light of the mandate of the statute that the appeal was rejected.
11. For all the foregoing reasons, I find no merit in this writ petition which is hereby dismissed.
12. At this stage, it is submitted that the petitioner is willing to deposit the amount and that one opportunity be given to it to present its case. It would be open to the petitioner to deposit such amount and make this submission before the Appellate Authority which may deal with it in accordance with law.