Karnataka High Court

R Jayanna vs The Secretary on 13 June, 2023

Bench: K S Hemalekha

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                                                         NC: 2023:KHC:20244
                                                             WP No. 2140 of 2022




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 13TH DAY OF JUNE, 2023

                                             BEFORE

                            THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

                              WRIT PETITION NO.2140 OF 2022 (L-RES)

                    BETWEEN:

                    R. JAYANNA
                    S/O. LATE RAMAPPA,
                    AGED ABOUT 65 YEARS,
                    R/AT NO.267, LAKSHMIDEVI KRUPA,
                    11TH MAIN ROAD,
                    KANCHAGHATTA NEW EXTENSION,
                    TIPTUR - 572 201
                    TUMKUR DISTRICT.                               ... PETITIONER

                    (BY SRI M.C. BASAVARAJU, ADVOCATE)

                    AND:

                    1.   THE SECRETARY
                         DEPARTMENT OF LABOUR
                         VIKASA SOUDHA
                         DR. AMBEDKAR VEEDHI
Digitally signed by      BANGALORE - 560 001.
MAHALAKSHMI B M
Location: HIGH      2.   THE ASSISTANT LABOUR COMMISSIONER
COURT OF                 AND APPELLATE AUTHORITY
KARNATAKA
                         DIVISION-I, KSLI BUILDING,
                         MANJUNATHA NAGAR BAGALAGUNTE,
                         BANGALORE - 560 073.

                    3.   THE LABOUR OFFICE
                         AND THE CONTROLLING AUTHORITY
                         UNDER THE PAYMENT OF GRATUITY ACT
                         TUMKUR SUB DIVISION,
                         NEAR COURT COMPLEX,
                         TUMKUR - 572 101.

                    4.   THE PRINCIPAL
                         KALPATHARU INSTITUTE OF TECHNOLOGY
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                                   NC: 2023:KHC:20244
                                       WP No. 2140 of 2022




    TIPTUR - 572 201
    TUMKUR DISTRICT.                        ... RESPONDENTS

(BY SMT. N. ANITHA, HCGP FOR R-1 TO R-3;
    SRI S.B. SIDDESWARASWAMY, ADVOCATE FOR R-4)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
IMPUGNED ORDER PASSED ON THE APPLICATION (I.A.NO.1/2021)
IN APPEAL DATED 23.12.2021 PASSED BY THE R2 VIDE ANNEXURE-L
TO THIS WRIT PETITION AND THE IMPUGNED ORDER PASSED ON
THE APPEAL DATED 20.01.2022 PASSED BY THE R2 VIDE
ANNEXURE-M TO THIS WRIT PETITION BY DISMISS THE
APPLICATION (I.A.NO.1/2021) AS WELL AS THE APPEAL FILED BY
THE R4 BY CONFIRMING THE ORDER PASSED BY THE R3.

      THIS WRIT PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The petitioner in this writ petition is assailing the

order dated 23.12.2021 passed by respondent No.2 vide

Annexure-L and the order dated 20.01.2022 passed by

respondent No.2 vide Annexure-M.

2. Brief facts of the case are that the petitioner

was appointed as a Lecturer by respondent No.4 on

02.11.1987 and he retired on 31.05.2017 and at the time

of retirement, he was working as an Associate Professor.

After retirement the gratuity was not paid by respondent

No.4, the petitioner made representation to respondent

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No.4 requesting to pay the gratuity. Since respondent

No.4 did not pay the gratuity, an application was filed

before respondent No.3 seeking gratuity with interest,

respondent No.3 after hearing the parties, allowed the

application and directed respondent No.4 to pay a sum of

Rs.9,29,682/- as gratuity with interest @ 10% per annum

from 18.07.2017 till the date of deposit.

3. Aggrieved by the order of respondent No.3,

respondent No.4 preferred an appeal before respondent

No.2. On hearing, respondent No.2 by its impugned order

dated 20.01.2022 allowed the appeal and remanded the

matter to respondent No.3 for fresh consideration.

Aggrieved by which, the present writ petition is preferred

by the petitioner.

4. Learned HCGP for respondent Nos.1 to 3 has

filed statement of objections stating that the writ petition

is not maintainable either in law or on facts and same is

liable to be dismissed. It is stated that respondent No.2

allowed the application of respondent No.4 on the basis of

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the rights of the parties and based on the facts and law,

the impugned order is passed in accordance with law.

5. Learned counsel for respondent No.4 filed

statement of objections stating that respondent No.2

taking note of the contention of the parties has rightly

passed the impugned order based on the facts and law

and the same does not call for interference.

6. Heard Sri. M.C. Basavaraju, learned counsel for

the petitioner, Smt. N. Anitha, learned HCGP for

respondent Nos.1 to 3 and Sri. S.B. Siddeswaraswamy,

learned counsel for respondent No.4.

7. Learned counsel for the petitioner would submit

that under identical circumstances, this Court in the case

of A.M. Rajashekaraiah Vs. The Secretary,

Department of Labour and Others [A.M.

Rajashekaraiah] in W.P. No.2925/2022 dated

04.01.2023 has disposed of the matter setting aside the

order of the Appellate Authority and directing respondent

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No.4 to pay the gratuity amount to the petitioner therein

and would submit that in similar terms, the present

petition may be disposed of.

8. Learned counsel for respondent No.4 does not

dispute that the matter is squarely covered by the order of

Co-Ordinate Bench of this Court in the case of A.M.

Rajashekaraiah. However, learned counsel would

contend that the interest @ 8% per annum to be awarded

to the petitioner herein from the date of the application till

the date of deposit and to that extent, the impugned

orders may be modified.

9. Having heard the learned counsel for the parties

and perused the material on record, the facts are not in

dispute. It is not in dispute that the petitioner is entitled

for a sum of Rs.9,29,682/- with interest from 18.09.2017

till the date of deposit. The present petition is squarely

covered by the dictum of the Apex Court in the case of

Birla Institute of Technology Vs. State of Jharkhand

and Others reported in (2019) 4 SCC 513 [Birla

NC: 2023:KHC:20244 WP No. 2140 of 2022

Institute of Technology], wherein the Apex Court at

paragraph Nos.22 and 23 held as under:

"22. The definition of "employee" as defined under Section 2(e) was accordingly amended with effect from 03.04.1997 retrospectively vide Payment of the Gratuity (Amendment) Act, 2009 (47 of 2009) published on 31.12.2009. The amended definition reads as under:

"2. (e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

23. In the light of the amendment made in the definition of the word "employee" as defined in Section 2(e) of the Act by Amending Act 47 of 2009 with retrospective effect from 03.04.1997, the benefit of the Payment of Gratuity Act was also

NC: 2023:KHC:20244 WP No. 2140 of 2022

extended to the teachers from 03.04.1997. In other words, the teachers were brought within the purview of "employee" as defined in Section 2(e) of the Payment of Gratuity Act by Amending Act 47 of 2009 with retrospective effect from 3-4-1997."

10. In light of the judgment of the Apex Court in

the case of Birla Institute of Technology, the Co-

Ordinate Bench of this Court in the case of A.M.

Rajashekaraiah, under similar circumstances at

paragraph Nos.16 and 17 held as under:

"16. Section 7(3) of the Act clearly specifies that the gratuity is liable to be paid within 30 days from the date of superannuation. Section 7(3A) of the Act specifies that if the gratuity is not paid by the employer as contemplated under sub section (3) of Section 7 of the Act, the employer is liable to pay interest. The only stipulation which exempts the employer from paying interest is contemplated in the proviso to sub Section (3A) of Section 7 of the Act i.e., due to fault of the employee and if the employer has obtained permission in writing from the Controlling Authority for the delayed payment on the said ground. The position as stipulated in Section 7 of the Act has been reiterated by the

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Hon'ble Supreme Court in the case of H.Gangahanume Gowda v. Karnataka Agro Industries Corpn Ltd.,

17. The contention of the Respondent No.4 that Principal has been arrayed as a party and is not the appointing authority and the representative of the Management is required to be made a party is ex-facie liable to be rejected insofar as Petitioner is concerned, inasmuch as it is an interse issue between the various persons who represent the employer of the Petitioner. The said contention of Respondent No.4 is required to be rejected also keeping in mind the manner in which the proceedings initiated by the Petitioner has been contested before the Controlling Authority, Appellate Authority as well as in the present Writ Petition. Vide relief sought for in I.A.1/2022 the Petitioner has sought for permission to withdraw the amount deposited by the Respondent No.4 before the Controlling Authority. The Petitioner has placed on record the financial difficulties as already noticed above and has also placed on record the loan statement of the cooperative society."

11. In view of the fact that there being no dispute

that the matter is squarely covered by the dictum of the

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Apex Court and the Co-Ordinate Bench of this Court, the

present petition needs to be disposed of in similar terms.

12. Accordingly, this Court pass the following:

ORDER

i. The writ petition is allowed.

ii. The orders dated 23.12.2021 and 20.01.2022

passed by respondent No.2 vide Annexures-L and

M respectively are set-aside.

iii. The order dated 26.11.2020 passed by Labour