Bombay High Court
Vasant S/O Late Keshavrao Thakre ... vs Smt. Rukhma W/O Vitthal Dawale And ... on 10 August, 2022
Bench: Avinash G. Gharote
(1) 48.wp.2750.2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2750 OF 2018
Vasant s/o Late Keshavrao Thakre and others
Vs.
Rukhma w/o Vitthal Dawale and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S. S. Ghate, Advocate for petitioners.
Mr. S. B. Dhande, Advocate for respondent nos.1 to 3, 4(A), 5, 6, 8(a)(b), 9 to 19.
CORAM : AVINASH G. GHAROTE, J.
DATE : 10/08/2022
1. Heard Mr. Ghate, learned counsel for the
petitioners and Mr. Dhande, learned counsel for the
respondent nos.1 to 3, 4(A), 5, 6, 8(a)(b), 9 to 19.
2. The petition challenges the order dated
31.10.2009 Annexure-C (page 33), whereby in
proceedings under Section 7(4) of the Payment of
Gratuity Act, 1972 (hereinafter referred to as "the P. G.
Act") against M/s K. T. Ginning Factory, the claimant
therein were held to be entitled for gratuity along with
interest at the rate of 10 % thereupon from 26.5.2002 till
recovery.
3. Against the aforesaid order, an application
for review came to be filed under Rule 11 (5) of the
Payment of Gratuity Rules, 1972 which came to be
(2) 48.wp.2750.2018
rejected on 4.7.2012 (page 71) on the ground that it was
filed beyond the time permissible of 120 days. Both the
orders were thereafter, questioned before the learned
Industrial Court in Appeal No.7 of 2013 under Section
7(7) of the P. G. Act. The learned Industrial Court by the
judgment dated 11.4.2018 held that the proceedings
were not maintainable and so also for want of
compliance of statutory provisions as contemplated
under Section 7(7) of the P. G. Act. It is not in dispute
that the quantum of gratuity i.e. Rs.3,20,724/- which is
the principle amount has been deposited by the
petitioners, with the learned Industrial Court on
5.1.2018.
4. It is the contention of Mr. Ghate, learned
counsel for the petitioners that the order dated
31.10.2009 passed by the Controlling Authority was
against M/s K. T. Ginning Factory, which is claimed to be
a proprietory concern without naming who the
proprietor was, in view of which, the finding rendered
therein that the notices were served upon the respondent
therein was factually incorrect and therefore, the
ex-parte order dated 31.10.2009 passed by the
Controlling Authority could not be sustained.
5. It is further contended, that thereafter
subsequent events have over taken the matter inasmuch
as, in Special Civil Suit No.256 of 1997 filed by
(3) 48.wp.2750.2018
Chandrashekhar Thakre against the present petitioners
and others, the Civil Judge Senior Division, Wardha by
its judgment dated 30.7.2011, has held that the Ginning
Factory under the name and style of M/s K. T. Ginning
Factory, belongs to the plaintiff therein, namely,
Chandrashekhar Keshavrao Thakre and Keshavrao
Thakre the father of the present petitioner was merely a
Manager therein, who was removed from the post of
Manager, on or about 6.12.1978. So also, a claim raised
by the present petitioners that Keshavrao Thakre was the
absolute owner of the Ginning Factory was answered in
the negative and it was held that the Will Deed executed
by the Keshavrao Thakre bequeathing the Ginning
Factory to the petitioners dated 20.1.1994, was of no
effect. Though the appeals bearing R.C.A. Nos. 35 of
2018 and 821 of 2018 are pending against the aforesaid
judgment, Mr. Ghate, learned counsel for the petitioners
submits that there is no stay to the said judgment.
6. The judgment dated 30.7.2011 in Special
Civil Suit No.256 of 1997, would clearly indicate that the
petitioners who are the legal heirs of Keshavrao Thakre,
are not having any right title or interest of any nature
whatsoever in M/s K. T. Ginning Factory, which has also
held, that Chandrashekhar Thakre, was in possession
thereof in answer to issue no.2. This being the position,
the petitioners, who are the legal heirs of Keshavrao
cannot be held to be in any way concerned with the
(4) 48.wp.2750.2018
Ginning Factory and consequently their liability for
payment of Provident Fund (P. F.) dues, would not stand
to reason.
7. Though Mr. Dhande, learned counsel for the
respondents contends that the plea cannot be considered
under section 7(7) of the P. G. Act on the ground that it is
not filed within the period as contemplated therein, and
therefore the appeal would not be maintainable, it is
however material to note that though it is an admitted
position as consented by Mr. Dhande, learned counsel for
the respondents that the judgment in Special Civil Suit
No.256 of 1997 dated 30.7.2011 was placed on record,
the same does not appear to have been considered by the
learned Industrial Court at all, neither has the learned
Industrial Court considered the fact that the amount of
gratuity already stood deposited with it, considering
which, it could not have dismissed the appeal for non-
compliance of statutory provisions.
8. Mr. Dhande, learned counsel for the
respondents relied upon Metal Box India, Ltd Vs. B. R.
Rangari, Assistant Commissioner of Labour and others,
2006 (4) L.L.N. 539, to contend that the deposit has to
be prior to filing of the appeal under Section 7(7) of the
P. G. Act, however, in the peculiar facts and circumstance
of the present case, when the judgment of the learned
Appellate Court dated 30.7.2011, itself held that the
(5) 48.wp.2750.2018
petitioners had nothing to do with the M/s K. T. Ginning
Factory, it was incumbent upon the learned Industrial
Court to have considered this position as that is
something which has a material bearing upon the
liability saddled on the petitioners. A perusal of the
impugned judgment indicates that in spite of being
aware of the passing of the judgment on 30.7.2011, as
indicated in para 20 therein, the same has not been
taken into consideration. It is a trite position of law that
the rights and liabilities as determined by a Civil Court of
competent jurisdiction will have to be necessarily
considered by the learned Industrial Court while
deciding any proceeding before it. This having not been
done by the impugned judgment dated 11.4.2018 passed
by the learned Industrial Court the same cannot be
sustained and is hereby quashed and set aside and the
matter is remanded back to the learned Industrial Court
to render a finding, in light of the judgment of the Civil
Court dated 30.7.2011. No costs.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:12.08.2022
14:36
