B.L. Rubber Industries Private Limited v. Ashok Kumar Khurana and The Assistant Labour Commissioner (Central) and The Regional Labour Commissioner (Central)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935** ## **WP(C).No. 21488 of 2013 (I)** **----------------------------** **PETITIONER:** **-------------------------** **B.L. RUBBER INDUSTRIES PRIVATE LIMITED, REGISTERED OFFICE, CHITRAKOOT, 7TH FLOOR, 230A, JC BOSE ROAD, KOLAKATA-700 020, REPRESENTED BY ITS BRANCH MANAGER R.HARIPRAKASH.** **BY ADVS.SRI.P.RAMAKRISHNAN SMT.PREETHI KESAVAN** **RESPONDENTS:** **------------------------------** ## **1. ASHOK KUMAR KHURANA,** - **G 197, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-682 036** **2. THE ASSISTANT LABOUR COMMISSIONER (CENTRAL), KENDRIYA SHRAM SADAN, OOLIMUGHAL, KAKKANAD, KOCHI-682 030** **3. THE REGIONAL LABOUR COMMISSIONER (CENTRAL), KENDRIYA SHRAM SADAN, OLIMUGHAL, KAKKANAD, KOCHI-682 030** **R1 BY ADVS. SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.K.V.GEORGE** **SRI.P.N.RAJAGOPALAN NAIR R2 R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 21488 of 2013 (I)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1:TRUE COPY OF ORDER DTD 25/4/2013 OF THE CONTROLLING AUTHORITY** - **P2:TRUE COPY OF APPEAL MEMORANDUM AND APPLICATION SUBMITTED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT APPELLATE AUTHORITY** - **P3:TRUE COPY OF LETTER DTD 16/7/2013 OF THE 3RD RESPONDENT.** - **P4:TRUE COPY OF THE BANK VOUCHER DATED 6/2/2010 P5:TRUE COPY OF THE BANK VOUCHER DATED 5/3/2010 P6:TRUE COPY OF THE BANK VOUCHER DATED 5/4/2010** ## **RESPONDENT(S)' EXHIBITS:** - **R1(A) TRUE COPY OF THE WRITTEN STATEMENT DATED 09/01/2012 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN GA.NO.48/2011** - **R1(B) TRUE COPY OF THE REPLICATION DATED 31/01/2012 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT IN GA.NO.48/21/2011/D1** - **R1(C) TRUE COPY OF THE PETITION TO DIRECT THE PETITIONER TO PRODUCE THE DOCUMENT FROM THEIR CUSTODY DATED 31/01/2012 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN GA.NO.48/21/2011/DI** - **R1(D) TRUE COPY OF THE WRITTEN OBJECTION DATED 19/04/2012 FILED BY PETITIONER BEFORE THE 2ND RESPONDENT IN GA.NO.48/2011** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **K. VINOD CHANDRAN, J** **- - - - - - - - - - - - - - - - - - - - - W.P(C) No. 21488 of 2013 - - - - - - - - - - - - - - - - - - - - - Dated the 7[th] day of February, 2014** ## **J U D G M E N T** The petitioner is aggrieved with Ext.P3 order, by which a claim for waiver of deposit of amounts was declined, by the appellate authority under sub-section(7) of Section 7 of the Payment of Gratuity Act, 1972 (for brevity “the Act”). 2. The brief facts required for adjudication of the above writ petition is that the first respondent, admittedly, was a Branch Manager of the petitioner Company at Cochin. The first respondent resigned from the petitioner company on 28.2.2011. The petitioner approached the Controlling Authority under the Act with a claim for gratuity on the basis of the last drawn pay, which, according to the first respondent was Rs.70,000/-. The petitioner appeared WPC.21488/2013 : 2 : and contended that the first respondent's salary was only Rs.20,000/- and he being in-charge of the Cochin Branch had illegally withdrawn an amount of Rs.70,000/- as salary, just prior to his resignation. However, no records were produced to substantiate the claim. Since no records were produced, the claim was allowed as claimed by the first respondent, by Ext.P1. The petitioner then, filed an appeal and sought for waiver of deposit under section 7(7). The petitioner challenges the order insofar as it is contended that what is required to be deposited is only the admitted amount; i.e., computing the last drawn pay at Rs.20,000/-; which alone is admitted by the employer. 3. The learned counsel for the first respondent places reliance on a decision of this Court reported in **Standard Stonewares and Tiles v. Appellate Authority [2004 (2) KLT 519],** wherein WPC.21488/2013 : 3 : almost a similar issue with respect to the requirement of deposit of interest was considered by this Court. This Court after an examination of the provisions, more specifically, Section 7 as also sub-section (4) and (7) of Section 7 found that what is indicated in the above provision is that the amounts to be deposited as a precondition for maintaining an appeal is that directed to be deposited by the Controlling Authority under sub-clause(c) of sub-section (4) of Section 7. 4. On a reading of the second proviso to subsection(7) of Section 7 it is clear that what is required as pre-deposit, for maintaining an appeal, is “the amount equal to the amount of gratuity required to be deposited under sub-section (4)”. It is to be noticed that the proviso specifically refers to subsection(4) and not to any of the sub-clauses therein. The petitioners contention is based on sub-clause (a) WPC.21488/2013 : 4 : of sub-section(4) which requires the employer, in the event of any dispute regarding the amount of gratuity payable, to deposit with the Controlling Authority, such amounts as the employer admits to be payable to the employee as gratuity. That, of course, would be a requirement before the Controlling Authority has decided on the issue. That provision gives an opportunity to the employer, to declare his bonafides and also by making such deposit; to escape from any liability to interest. 5. When the Controlling Authority has decided on the issue, sub clause(c) of sub-section (4) comes into place. As per sub clause (c) of sub-section (4) after adjudicating the dispute and determining the amount of gratuity payable; the Controlling Authority has the power to “direct the employer to pay such amount or as the case may be such amount as reduced by the amount already deposited by the WPC.21488/2013 : 5 : employer”. On an order being passed after adjudication of the dispute and a direction being issued in terms of the above provision, necessarily, the amount required to be deposited under subsection (4) would be the amount adjudicated upon with interest thereon. The order declining waiver of deposit of amounts adjudicated upon is upheld. 6. The writ petition is found to be devoid of merit and is accordingly dismissed. 7. However, since the petitioner prays for some time to make the deposit, it is directed that the petitioner shall pay the amount of gratuity as computed with the last pay drawn as Rs.20,000/along with interest due within a period of one month from today. On which event, the appeal shall be taken to the files of the appellate authority. The amount so deposited shall be allowed to be withdrawn by the first respondent. For remitting the WPC.21488/2013 : 6 : balance amount, the petitioner shall be granted a further period of five months' time therefrom. In that event, the appellate authority can go ahead with the proceedings of the appeal and conclude the proceedings, but the passing of the final order shall be kept in abeyance till such deposit is made. If no deposit as directed herein is made, within six months period stipulated herein, the appeal should be dismissed. On making the deposit, the appellate authority shall pass final orders. Writ petition dismissed with the above observation. Sd/- **K. Vinod Chandran, (Judge)** jma //true copy// P.A to Judge