L. Ramulu Vs. Deputy Commissioner of Labour, Guntur and ors. - Court Judgment

Excerpt:
labour and industrial - payment of gratuity - section 7 of payment of gratuity act, 1972 - petitioner terminated from service by respondent no. 3 filed application for payment of gratuity - application rejected on grounds that it was barred by time as not filed within three months of retirement - petitioner contention was that application was filed as soon as he came to know about that gratuity amount was not been deposited in his account by respondent no. 3 - cause of action starts from the day petitioner came to know about non payment of gratuity - held, application was within time and matter remitted back to authority to decide on merits. - - hence, it must be reckoned at worst against the management from 9th april 1981. so taken, it is still within three months from that date.order1. the interpretation of rule 10 of the payment of gratuity rules framed under the payment of gratuity act (hereinafter called the act) falls for determination in this writ petition. the petitioner herein who was an employee of the 3rd respondent company, after retirement, sought the payment of gratuity from the company. on refusal of the same, he filed an application before the authority under the act, which was, however, rejected as time barred. on the appeal also the order of the primary authority was confirmed. hence, this writ petition. 2. the refusal of the application as per the impugned order is that it is a delayed application as under rule 10 of the rules, it is obligatory on the part of the employee to file the application within three months and in as much as there is a delay of three months and since it is not condonable, the relief sought for cannot be accorded. 3. the contention of sri g. ramachandra rao, the learned counsel for he petitioner, is that when the petitioner's services were terminated on 28th january 1981 he was under the impression that the gratuity was deposited and therefore he would draw the same, but when it was learnt on 8th april 1981 that gratuity has not been deposited, he sent an application on the same day which was received by the 3rd respondent on the following day i.e. 9th april 1981. since on reply was received, the petitioner filed an application before the authority under the act on 19th june 1981 and therefore the application was within the meaning of rule 10, as the petitioner applied within three months from the date of deeming rejection by the authority concerned. 4. before adjudicating the case, rule 10 of the rules may be noticed : 'application to controlling authority for direction :- (1) if an employer :- (i) refuses to accept a nomination or to entertain an application sought to be filed under rule 7, or (ii) issues a notice under sub-rule (1) of rule 8 either specifying an amount of gratuity which is considered by the applicant less than what is payable or rejecting eligibility to payment of gratuity, or (iii) having received an application under rule 7 fails to issue any notice as required under rule 8 within the time specified therein, the claimant employee, nominee or legal heir, as the case may be, may within ninety days of the occurrence of the cause for the application, apply in form 'n' to the controlling authority for issuing a direction under sub-section (4) of section 7 with as many extra copies as are the opposite party : provided that the controlling authority may accept any application under this sub-rule, on sufficient cause being shown by the applicant after the expiry of the specified period. (2) application under sub-rule (1) and other documents relevant to such an application shall be presented in person to the controlling authority or shall be sent by registered post acknowledgment due.' 5. it is indeed plain from the words 'the claimant employee ..... may, within ninety days of the occurrence of the cause for the application apply ......' that within ninety days from the date of the occurrence of the cause, the party will be entitled to file an application before the authority under the payment of gratuity act. in my view, the petitioner was certainly entitled to have the view that it was obligatory on the part of the management to deposit the gratuity and since he was under the impression that it must have been deposited and having learnt on 8th april 1981 that it has not been so done, on the very same day he had taken steps to file a representation and reasonably he waited for a duration of two months and when there was no response, he filed the application before the authority under the act. hence, the cause of action in my judgment arose some time after 9th april 1981 which cannot positively be predicted in view of the inaction on the part of the management. hence, it must be reckoned at worst against the management from 9th april 1981. so taken, it is still within three months from that date. in as much as within 15 days from 9th april 1981 it is obligatory on the part of the management to give a reply, as otherwise it would be deemed to have been rejected, the petitioner had no alternative but to invoke the jurisdiction of the authority under the act within three months thereof which he has rightly done. 6. hence the impugned order, which is erroneous as it is in contravention of rule 10, has to be quashed. it is accordingly quashed. the matter is now remitted back to the authority under the payment of gratuity act for deciding the matter in the light of the observations made hereinabove and to determine the amount of gratuity to be payable by the management and finalise the award within three months from the date of receipt to this order. 7. the writ petition is accordingly allowed. no costs.

Judgment:
ORDER

1. The interpretation of Rule 10 of the Payment of Gratuity Rules framed under the Payment of Gratuity Act (hereinafter called the Act) falls for determination in this writ petition. The petitioner herein who was an employee of the 3rd respondent Company, after retirement, sought the payment of gratuity from the Company. On refusal of the same, he filed an application before the Authority under the Act, which was, however, rejected as time barred. On the appeal also the order of the primary authority was confirmed. Hence, this writ petition.

2. The refusal of the application as per the impugned order is that it is a delayed application as under Rule 10 of the Rules, it is obligatory on the part of the employee to file the application within three months and in as much as there is a delay of three months and since it is not condonable, the relief sought for cannot be accorded.

3. The contention of Sri G. Ramachandra Rao, the learned counsel for he petitioner, is that when the petitioner's services were terminated on 28th January 1981 he was under the impression that the gratuity was deposited and therefore he would draw the same, but when it was learnt on 8th April 1981 that gratuity has not been deposited, he sent an application on the same day which was received by the 3rd respondent on the following day i.e. 9th April 1981. Since on reply was received, the petitioner filed an application before the authority under the Act on 19th June 1981 and therefore the application was within the meaning of Rule 10, as the petitioner applied within three months from the date of deeming rejection by the authority concerned.

4. Before adjudicating the case, Rule 10 of the Rules may be noticed :

'Application to controlling authority for direction :- (1) If an employer :-

(i) refuses to accept a nomination or to entertain an application sought to be filed under Rule 7, or

(ii) issues a notice under sub-rule (1) of Rule 8 either specifying an amount of gratuity which is considered by the applicant less than what is payable or rejecting eligibility to payment of gratuity, or

(iii) having received an application under Rule 7 fails to issue any notice as required under Rule 8 within the time specified therein, the claimant employee, nominee or legal heir, as the case may be, may within ninety days of the occurrence of the cause for the application, apply in Form 'N' to the controlling authority for issuing a direction under sub-section (4) of Section 7 with as many extra copies as are the opposite party :

Provided that the controlling authority may accept any application under this sub-rule, on sufficient cause being shown by the applicant after the expiry of the specified period. (2) Application under sub-rule (1) and other documents relevant to such an application shall be presented in person to the controlling authority or shall be sent by registered post acknowledgment due.'

5. It is indeed plain from the words 'the claimant employee ..... may, within ninety days of the occurrence of the cause for the application apply ......' that within ninety days from the date of the occurrence of the cause, the party will be entitled to file an application before the authority under the Payment of Gratuity Act. In my view, the petitioner was certainly entitled to have the view that it was obligatory on the part of the management to deposit the gratuity and since he was under the impression that it must have been deposited and having learnt on 8th April 1981 that it has not been so done, on the very same day he had taken steps to file a representation and reasonably he waited for a duration of two months and when there was no response, he filed the application before the authority under the Act. Hence, the cause of action in my judgment arose some time after 9th April 1981 which cannot positively be predicted in view of the inaction on the part of the management. Hence, it must be reckoned at worst against the management from 9th April 1981. So taken, it is still within three months from that date. In as much as within 15 days from 9th April 1981 it is obligatory on the part of the management to give a reply, as otherwise it would be deemed to have been rejected, the petitioner had no alternative but to invoke the jurisdiction of the authority under the Act within three months thereof which he has rightly done.

6. Hence the impugned order, which is erroneous as it is in contravention of Rule 10, has to be quashed. It is accordingly quashed. The matter is now remitted back to the authority under the Payment of Gratuity Act for deciding the matter in the light of the observations made hereinabove and to determine the amount of gratuity to be payable by the management and finalise the award within three months from the date of receipt to this order.

7. The writ petition is accordingly allowed. No costs.