Asst. Commissioner Of Commercial ... vs Shri R. Basavaraj
2022 Latest Caselaw 9198 Kant

                            -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JUNE, 2022

                        PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                            AND

       THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

          WRIT APPEAL NO.503 OF 2022 (L-PF)

BETWEEN:

1.     ASST. COMMISSIONER OF
       COMMERCIAL TAXES
       LVO-11, CHAMARAJPETE
       BANGALORE - 560 018.

2.     THE COMMISSIONER OF COMMERCIAL
       TAXES (KARNATAKA), GANDHINAGAR
       BENGALURU - 560 009.

3.     THE PRINCIPAL SECRETARY
       DEPARTMENT OF FINANCE
       GOVERNMENT OF KARNATAKA
       2ND FLOOR, VIDHANA SOUDHA
       BENGALURU - 560 001.
                                         ... APPELLANTS

(BY SRI H.R. SHOWRI, AGA)

AND:

1.     SHRI R. BASAVARAJ
       S/O LATE RAMAIAH
       #28, POST OFFICE ROAD
       MALLATTAHALLI
       BENGALURU - 560 056.

2.     THE LABOUR OFFICER AND
       THE AUTHORITY UNDER THE PAYMENT
       OF GRATUITY ACT, SUB DIV-5
       KARMIK BHAVAN
       BENGALURU - 29.
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3.    THE ASSISTANT LABOUR COMMISSIONER-2
      & APPELLATE AUTHORITY UNDER THE PAYMENT
      OF GRATUITY ACT, 1972, KARMIK BHAVAN
      BENGALURU - 560 029.
                                         ... RESPONDENTS

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE
THE ORDER DATED 29.11.2021 PASSED BY THE HON'BLE
LEARNED SINGLE JUDGE IN W.P. No.8473/2021 AND BE
PLEASED TO ALLOW THE WRIT PETITION OF THE APPELLANTS.

      THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:

                          JUDGMENT

Heard.

2. In view of the office report, the delay in filing of

the appeal stands condoned. Accordingly, I.A.No.1/2022 is

allowed.

3. This intra-Court appeal has been filed

challenging the judgment and order dated 29.11.2021

passed in W.P.No.8473/2021 (Assistant Commissioner of

Commercial Taxes and others vs. Sri.R.Basavaraj and

others) whereby, the writ petition preferred by the

appellants had been dismissed on merit and they have been

directed to implement the order at Annexure-C dated

06.01.2020 passed by respondent No.2-Controlling

Authority within a period of three months from the date of

receipt of a copy of the order.

4. The facts of the case in brief are that

respondent No.1 was appointed on daily wage basis in the

office of the Assistant Executive Engineer, Harangi Nala,

Sub-Division, Saligram, K.R.Nagar Taluk, Mysuru District.

With effect from 01.01.1990, the service of respondent

No.1 was regularized on the post of Typist. In 1996, the

service of respondent No.1 was redeployed to the

Department of Commercial Taxes, Bengaluru as Second

Division Assistant. Respondent No.1 retired on

superannuation from the office of the Assistant

Commissioner of Commercial Taxes, Bengaluru on

30.06.2015. He was sanctioned pensionary benefits as per

the provisions of the Karnataka Civil Services Rules from

the office of the Accountant General.

5. It was on 30.09.2015 that respondent No.1

claimed that he had submitted an application in the office of

the Assistant Commissioner of Commercial Taxes,

Bengaluru in the prescribed Form-I for payment of balance

gratuity amount of Rs.1,83,538/-, but the same was not

paid. Respondent No.1 thereafter filed an application before

the Labour Officer and the Controlling Authority under the

Payment of Gratuity Act, 1972 (for short 'the said Act of

1972') to issue a direction for payment of gratuity amount

of Rs.1,83,538/-. The appellants preferred objections to the

said application. By the final order dated 13.12.2019, the

Labour Officer and the Controlling Authority allowed the

application of respondent No.1 and directed the appellants

for payment of gratuity of Rs.1,64,901/- along with 10%

interest with effect from 01.01.2006 till the date of deposit.

The said order was rectified vide order dated 06.01.2020.

6. It was thereafter that the appellants preferred

an appeal application before the Assistant Labour

Commissioner, under the Payment of Gratuity Act,

Division-2, Bengaluru. The Assistant Labour Commissioner

and the Appellate Authority, vide order dated 04.08.2020,

rejected appeal application of the appellants on the ground

that the limitation prescribed for filing of the appeal has

expired. The appellants have not complied with the

requirement of depositing 50% of the gratuity amount

before filing of the appeal and as such, the appeal is liable

to be dismissed.

7. It is to be noted that in the appellate order, it

was directed that in case the amount is deposited with the

Controlling Officer, i.e., the Labour Officer, Sub-Division-5,

Bengaluru under the said Act of 1972, and if documents in

support of the same is furnished, further action will be

taken. The appellants, instead of depositing the statutory

amount before the Controlling Officer, chose to file a writ

petition before the High Court in W.P.No.8473/2021. The

said writ petition was dismissed vide order dated

29.11.2021 on merit. It is this order which has been

challenged before us in the writ appeal.

8. We have considered the submissions made by

learned Additional Government Advocate appearing for the

appellants and gone through the record.

9. We are of the considered view that the question

of consideration of period of service of daily wage for the

purpose of grant of gratuity was considered by the Labour

Officer and a finding was recorded holding that respondent

No.1 was entitled for receipt of gratuity even for the service

rendered under the daily wage. This finding stands

confirmed after rejection of the appeal preferred by the

appellants. Even the writ petition preferred by the

appellants has been rejected on merit. The writ Court has

come to conclusion that in view of the fact that on account

of non-compliance of the provisions of Section 7(7) of the

said Act of 1972, there was no illegality or infirmity in the

order under challenge before it. The writ Court has directed

the appellants to comply the order dated 06.01.2020 within

a period of three months from the date of receipt of the writ

Court's order.

10. It has been urged before us that the finding

recorded by the Labour Officer in his judgment and order

dated 13.12.2019 regarding entitlement of receipt of

gratuity even for the period of service rendered under the

daily wage by respondent No.1 is not sustainable in the

eyes of law.

11. We are of the considered view that once the

appeal and the writ petition preferred by the appellants

were dismissed by the concerning Courts, it is now not

open for them to raise the said plea.

12. We, even otherwise, are of the view that a writ

appeal preferred against the order arising out of the

proceedings from the Labour Court is not maintainable,

reference being made to the judgment of the Apex Court

dated 26.10.2021 in the case of Caparo Engineering

India Ltd. vs. Ummed Singh Lodhi and another (Civil

Appeal Nos.5829-5830 of 2021).

13. In view of the above, the writ appeal is

dismissed.

14. The pending interlocutory applications do not

survive for consideration and accordingly stand disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

VM