K.R.F. Limited v. Rajesh Singh

$~49 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 4023/2016 K.R.F. LIMITED ..... Petitioner Through: Mr.Siddharth Sangal, Adv.

versus RAJESH SINGH ..... Respondent Through: Mr.Prabhakar, Adv.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

O R D E R

% 15.07.2016 CM 18042/2016 1.

This application is filed by the petitioner for the stay of order dated 18th December, 2015. Since the arguments to be advanced on the stay application and the writ petition are same, I have heard the learned counsel for the parties.

2.

The challenge in the order is dated 18th December, 2015 of the Appellate Authority under the Payment of Gratuity Act, 1972. 3.

The facts are, the respondent was appointed in the petitioner company w.e.f. 10th October, 1991. The petitioner company has sent a charge sheet dated 16th December, 2013 to the respondent informing him that the petitioner had suffered a loss of Rs.16.70 lacs because of certain acts of the

respondent and sought a response to the charge sheet. It is averred that the respondent instead of responding to the charge sheet, served a legal notice dated 24th December, 2013 through his legal counsel on the petitioner company, demanding his gratuity. The petitioner company vide its communication dated 23rd January, 2014 informed the respondent that it has appointed an Enquiry Officer to conduct the domestic enquiry on the charges levelled against him and called upon him to present himself for the said enquiry on 1st February, 2014 at 5.00 pm at the factory premises. The respondent did not respond to the letters inasmuch as he did not appear before the Enquiry Officer, instead, he filed an application before the controlling authority under the Payment of Gratuity Act. 4.

The petitioner company responded to the application filed by the respondent before the controlling authority. It is averred in the reply that the petitioner has already initiated a domestic enquiry and, therefore, the proceedings be kept pending. It is the case of the petitioner that the controlling authority instead of directing the respondent to appear before the Enquiry Officer decided the application and vide letter dated 18th February, 2015 directed the petitioner company to pay to the respondent a sum of Rs.4,21,384/- with simple interest @ 10% per annum with effect from 21st

February, 2014. The petitioner company challenged the said order dated 18th February, 2015 before the appellate authority under the Payment of Gratuity Act. It may stated here that before filing the appeal, the petitioner company had deposited the awarded amount with the controlling authority. It was the case of the petitioner company before the appellate authority that the controlling authority under the Payment of Gratuity Act did not have the jurisdiction inasmuch as Section 2(b) of the Payment of Gratuity Act defines the „appropriate Government‟ in relation to an establishment, having branches in more than one State, to mean the Central Government. 5.

The appellate authority on the issue of jurisdiction of the controlling authority in the impugned order has held that such an issue was not raised by the petitioner company before the controlling authority and thereby rejected the appeal filed by the petitioner. Pursuant thereto, I have been informed that the controlling authority with whom the petitioner herein had deposited the awarded amount has released the amount in favour of the respondent. 6.

It is the contention of the learned counsel for the petitioner that the appellate authority has erred in rejecting the appeal filed by the petitioner on the ground that the plea of jurisdiction was not taken before the controlling authority. According to him, the plea being a legal plea could have been

taken and having been taken before the appellate authority, the appellate authority could not have rejected the appeal. He would rely upon the judgment of this Court in the case of Balsara Hygiene Products Ltd. Vs. Appellate Authority (under the Payment of Gratuity Act) 2002-I-LLJ Delhi 673 to contend that when such a plea is taken before the writ Court for the first time, the Court has remanded the matter back to the concerned authority for reconsideration.

7.

Learned counsel for the petitioner strenuously argue that when a person has been issued a charge sheet, controlling authority could not have granted the gratuity to the respondent vide his order dated 18th February, 2015.

8.

On the other hand, the learned counsel for the respondent would submit the amount having been released to the respondent, nothing survives in the petition to be adjudicated. He has also stated that there is no illegality in the order of the controlling authority and the appellate authority inasmuch as the plea of jurisdiction having not been taken, the appellate authority had rightly rejected the appeal. That apart, it is his case that under the provisions of Section 4(6) of the Payment of Gratuity Act, gratuity can be withheld only in certain eventualities, which eventualities have not arisen in the case

in hand inasmuch as the plea of the petitioner that the respondent has caused loss has not been proved as the allegations were only at the charges stage. 9.

Having heard the learned counsel for the petitioner, no doubt the plea of the jurisdiction goes to the root, on the maintainability of the proceedings before a particular authority.

terminated for any act which constitutes an offence involving moral turpitude, provided that such an offence is committed by him in the course of his employment, have not been satisfied in the case in hand, as the allegation of loss is only at the charge sheet stage /preliminary enquiry stage and has not resulted in a definite conclusion against the respondent and (iii) even if it is held that Central Government is the appropriate Government, as contended by the counsel for the petitioner still the petitioner is liable to pay gratuity to the respondent as none of the eventualities forfeiting the gratuity have arisen, this Court is of the view that no interference is called for in the impugned order in exercise of power under Article 226 of the Constitution. 10.

The writ petition as well as CM 18042/2016 are dismissed. 11.

The date 18th November, 2016 stands cancelled. V. KAMESWAR RAO, J JULY 15, 2016 RN