(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The appellant has invoked Clause 15 of the Letters Patent for calling into question order dated 19.07.2011 in Special Civil Application No.7096 of 2011 of learned Single Judge of this Court whereby the petition of the appellant is dismissed.
2. Apart from the issue of maintainability of the appeal, learned counsel, Mr.D.M.Thakkar, appearing for the appellant submitted that in absence of a clear direction against the contractor, the appellant will not be in a position to recover the amount which has been deposited by the appellant for preferring an appeal from the original order of the controlling authority under the provisions of the Payment of Gratuity Act, 1972. It was, however, seen and clear from the record that the contractor was very much a party before learned Single Judge as respondent no.4 and the contractor was, according to the submission, also a party in the proceedings before the controlling authority as well as the appellate authority. The terms of the contract between the appellant and the contractor (Annexure-C to the original petition) clearly stipulated in Clause-13 that in the event of any claim made by any worker/agent employed by the contractor for the performance of the contract against the company, the contractor undertook to indemnify and keep the company indemnified against any such claim and would hold himself fully responsible for it. It is further stipulated in Clause-19 of the agreement that the appellant would be entitled to deduct a sum equivalent to 9.5% of gross bill amount of the contractor which will bear no interest and shall be adjusted against the contractor's liabilities under various laws which contractor defaults to fulfill.
3. In view of the above discussion, the only grievance of the appellant as regards difficulty in recovering the amount from the contractor cannot survive. Hence, the appeal is dismissed. Rule having been issued herein, it is discharged with no order as to costs.
(D.H.Waghela, J.) (Mohinder Pal, J.) *malek Top