Motel Sunny, Thr. Partner ... vs Naresh Shankarao Mhaiskar And ...
2023 Latest Caselaw 5583 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                                  WRIT PETITION NO. 7360/2019

                                  Motel Sunny
                                      Vs.
                 Naresh Shankarrao Mhaiskar (Dead) Through LRs

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. M.R. Puranik, Advocate for petitioner
                                  Mr. D.S. Lambat, Adv. for Respondent No.1
                                  Mr. N.R. Patil, AGP for Respondent Nos.2 and 3


                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 14th JUNE, 2023

The petition questions the judgment dated 26/03/2018, passed by the Controlling Authority under the Payment of Gratuity Act, whereby the complaint has been accepted and the petitioner establishment has been directed to pay gratuity to the tune Rs.1,31,538/-, along with interest as indicated therein to the respondent. Appeal under Section 7(7) of the Payment of Gratuity Act has been rejected by the judgment dated 19/10/2019 (page

112).

2. Mr. Puranik, learned counsel for the petitioner submits, that though there was a specific denial in the reply filed by the petitioner (page 28, para 8-B) that the Payment of Gratuity Act is not

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applicable to the petitioner, finding contrary there to has been rendered. It is submitted, that since there was a denial regarding applicability of the Payment of Gratuity Act itself, it was necessary for the respondent to bring material on record to establish that the number of employees engaged by the petitioner was more than 10, therefore, the Payment of Gratuity Act is applicable. In that regard it is contended, that neither the complaint (page 23) nor the affidavit-evidence (page 30) filed by the respondent contained any statement regarding number of employees employed by the petitioner.

3. It is also contended, that though the witness no.2 namely Devanand Teltumade for the respondent had brought on record two documents obtained by him under the Right to Information Act, namely, Exh.16 - the said document related to the EPF position regarding the employees of Hotel Ashok and the document in relation to the petitioner i.e. Hotel Sunny only indicated 8 number of employees being engaged (page 43), which made it apparent that the Payment of Gratuity Act is not applicable. It is also submitted, that both the establishments were different establishments and merely because the petitioner establishment was registered under the Employees Provident Fund Act that would not attract a presumption that the Payment of Gratuity

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Act was applicable on account of 1(iv) of the EPF Act, which permitted the establishment to be registered for the purpose of EPF, even if lessor number of employees were employed. It is therefore, contended, that the findings by the authority below is based upon no evidence at all.

4. Insofar as contention by Mr. Lambat, learned counsel for the respondent, that Hotel Ashok and Hotel Sunny were one and the same and the employees of Hotel Sunny were subsequently taken up by Hotel Ashok, it is contended by Mr. Puranik, learned counsel for the petitioner that there is no such averment either in the complaint (page 23) or the affidavit evidence of the complainant (page 30), apart from which no material to indicate this position is brought on record. He contends, that the impugned orders cannot be sustained and are required to be quashed and set aside and the complaint filed by the respondent needs to be dismissed.

5. Mr. Lambat, learned counsel for respondent seeks short accommodation, considering which, list the matter on 15th June, 2023.

JUDGE MP Deshpande