Malan Maroti Gajbhe vs Sub Area Manager And Ors.
2004 Latest Caselaw 1033 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Rule made returnable forthwith. Heard by consent of the parties.

2. By this petition the petitioner has challenged the order dated 18-7-2003 passed by the Regional Labour Commissioner and Appellate Authority under the Payment of Gratuity Act i.e. respondent No. 2 in P.G. Appeal No. N/48(8)/2003 quashing and setting aside the earlier order 17th February, 2003 delivered by the Controlling Authority under the Payment of Gratuity Act, 1972 and Assistant Labour Commissioner (Central), Chandrapur.

3. The Assistant Labour Commissioner, Chandrapur was approached by the present petitioner claiming gratuity due to deceased Maroti Gajbhe claiming that Maroti Gajbhe was her husband and he expired after putting near about 17 years of service. The present respondent No. 4 Smt. Rekha was applicant No. 2 in those proceedings as she also claims to be the legally wedded wife of Late Maroti Gajbhe and claimed the very same amount from the respondent No. 1.

4. After giving due opportunity to both the parties and after considering their evidence the learned Controlling Authority reached the finding that the present petitioner is legally wedded wife of deceased Maroti and therefore, she is entitled to receive the amount of gratuity from the respondent No. 1. During these proceedings the present petitioner examined herself and produced some documents to show that the deceased Maroti had always treat her as legally wedded wife. She also pointed out that the deceased Maroti has nominated her in the records of the office of respondent No. 1. She also examined mother of the deceased viz. Jayabai Mahadeo Gajbhe, who deposed that the present petitioner Malan is the legally wedded wife of her deceased son Maroti. The respondent No. 4 Rekha has also examined herself and contended that the deceased Maroti never married with the petitioner Malan. She further contended that deceased Maroti was married with one woman by name Janabai and after her death the petitioner Malan was staying with the deceased Maroti without any marriage. She contended that the deceased Marothi married with her and as such she is entitled to the amount of gratuity. After considering this evidence the Controlling Authority found the present petitioner to be entitled to receive the amount of gratuity. Aggrieved by this order the present respondent No. 4 filed Gratuity Appeal, as mentioned above, before the respondent No. 2 Appellate Authority. The petitioner has challenged this Appellate order in present petition on the ground that the legal and valid evidence adduced by the petitioner before the Controlling Authority viz. respondent No. 3 has not been considered at all by the Appellate Authority and the judgment dated 18-2-1998 passed by the J.M.F.C., Bhadrawati in Case No. 14/95 has been relied upon to hold that the respondent No. 4 Smt. Rekha is legally wedded wife of deceased Maroti and by looking upon that judgment delivered in Section 125 proceedings, the judgment of the Controlling Authority has been quashed and set aside.

5. Having heard all respective Counsel, it transpires that the Appellate Authority has relied upon the only judgment dated 18-2-1998 delivered in Section 125 proceedings filed by Smt. Rekhabai. By this order the J.M.F.C., Bhadrawati has directed the non-applicant therein to pay Smt. Rekha monthly maintenance amount of Rs. 500/- from 19-8-1995 onwards. It is an admitted position on record that the present petitioner Malan is not party to the said proceedings in which said judgment is delivered. It is therefore, clear that any finding recorded in the said judgment cannot be used against Smt. Malan. The learned Appellate Authority was duty bound to consider this aspect and also evaluate other evidence which was produced by the parties before the respondent No. 2 Controlling Authority and thereafter to reach the finding about the legality and validity of the petitioner's marriage with deceased Maroti. As this has not been done and irrelevant material has been relied upon there is clearly an error of jurisdiction which needs to be corrected by this Court.

Hence, the impugned order dated 15-7-2003 delivered by the respondent No. 2 Regional Labour Commissioner (Central), Nagpur and Appellate Authority under Payment of Gratuity Act, 1972 is quashed and set aside.

The matter is remanded back to the said Authority with a direction to consider and evaluate all the evidence which has been produced by the parties before the Controlling Authority i.e. respondent No. 3 and also to independently consider the effect of the order in the proceedings Section 125 Cri.P.C. to which the petitioner was not party, before arriving at any conclusion about the legality and validity of the marriage of the deceased Maroti, either with Smt. Malan or with respondent No. 4 Smt. Rekhabai.

Liberty to the parties to place any additional evidence or documents on record of the Appellate Authority and the Appellate Authority shall after considering the same and after hearing the parties pass appropriate orders in this respect.

In the result the Writ Petition is allowed with no order as to costs.

Rule made absolute in the above terms.