(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Letters Patent Appeal has been directed against the judgment and order dated 15/12/2011, passed by the learned Single Judge of this Court in Special Civil Application No. 17690 of 2011, by which, the learned Single Judge was pleased to reject the writ petition filed by the petitioner – appellant herein and has affirmed the two concurrent orders, passed by the authorities constituted under the Payment of Gratuity Act, 1972 (for short 'the Act').
2. We have heard Mr. Prabhakar Upadhyay, learned counsel for the appellant – original petitioner. Facts of the case in brief are that, the respondent herein approached the Controlling Authority constituted under the Act by way of an application filed in 2010 which was registered as Gratuity Application No. 209 of 2010 claiming that he was appointed by the appellant – original petitioner company w.e.f. 09/02/1995 as a labourer for doing miscellaneous technical jobs in spinning department of the appellant – original petitioner company. He also claimed before the authority that his service was brought to an end w.e.f. 31/12/2008 on account of closure of the appellant – original petitioner company. He also asserted in his application that his last drawn wage was Rs.114/ (daily wage). On such premise, the respondent workman claimed Rs.23,040/ towards unpaid gratuity with interest at statutory rate i.e. 10% per annum. The appellant – original petitioner contested the application by filing its written statement and flatly disputed status of the respondent workman and claimed that the respondent workman was never employed by it in any capacity whatsoever and there was no relationship of employer and employee between the company and the said respondent workman. On such ground, the claim of the respondent workman was resisted. During the proceedings before the Controlling Authority, the respondent workman had produced certain documents on record before the authority under a list of documents dated 09/08/2010. During the proceedings before the Controlling Authority, the statement on oath of the respondent herein was recorded before the authority and he was subjected to crossexamination. From the record, it transpires and during hearing of the writ petition, learned advocate for the petitioner – appellant herein admitted and confirmed, that the appellant petitioner company had not examined any witness on its behalf before the Controlling Authority. Not only that, but as it transpires from the record of writ petition and has also been admitted and confirmed by the learned advocate for the appellant – original petitioner that no documents were also produced on record before the Controlling Authority by the present petitioner company. In view of absence of any oral or documentary evidence of whatsoever nature from the side of the appellant – original petitioner company, the Controlling Authority decided the application on the basis of the material available before it which comprises the documents produced by the present respondent as per the list of documents dated 09/08/2010 and his own statement on oath including his crossexamination. On the basis of appreciation of evidence, the Controlling Authority came to the conclusion that the respondent workman had established its claim whereas the appellant petitioner company had failed to rebut the evidence placed by the respondent and had also failed to lead any evidence on its own behalf and consequently, had failed to establish its own case pleaded in the written statement. The Controlling Authority, therefore, passed the order dated 18/03/2011 and allowed the application in favour of the respondent workman. Before the Appellate Authority also, the appellant – original petitioner pleaded the same case. On appreciation and evaluation of the evidence on record, the appellate authority concurred with the decision of controlling authority and dismissed the appeal.
3. We have heard the learned counsel for the appellant – applicant and have also gone through the judgment and order impugned and material on record. The learned Single Judge has dealt with all the aspects of the matter. The relevant paragraphs of the judgment and order are extracted as under:
“7. It is pertinent to note that in his evidence, the respondent workman had mentioned the name of the person, i.e. the Manager, under whose instructions he was working with the petitioner company. However, the petitioner company conveniently did not examine the said person/Manager and did not rebut the evidence given by the respondent workman.
7.2 Under the circumstances, the respondent's assertion that he was working under the instructions and authority of one Mr. Shekh Mahemad Abu Nasar has remained uncontroverted and has not been disputed.
8. It is also noticed from the record that the respondent herein had placed on record a note book/register which contains, according to respondent's assertion, record of his presence with the petitioner company. The petitioner company has not produced any photocopy of the document placed on record by the respondent, but has produced only typed copy of the said document. Even from the said typed copy, it is noticed that the said document contains, on all the pages of the notebook/register, certain signatures which purport to be the signature of the concerned superior officer of the petitioner company.
8.1 It is pertinent that during the hearing of present petition, learned counsel for the petitioner, on inquiry by the Court as to whose signature the said document contains, submitted that the respondent had claimed before the authority that the signature in the said document was that of the petitioner company's manager.
8.2 Despite such specific assertion by the respondent workman in his evidence before the Controlling Authority, the petitioner company preferred and chose not to examine its Manager as its witness either in its defence or for rebutting the allegation made by the respondent workman.
8.3 Under the circumstances, the respondent's evidence that the document contains the signature of Manager of the petitioner company remains absolutely uncontroverted.
8.4 Hence, when the Controlling Authority took into account and relied on such uncontroverted evidence, then, the said decision of the Controlling Authority cannot be said to be erroneous or perverse and cannot be faulted.
8.5 It is noticed from the copy of the oral statement/deposition given by the workman before the Controlling Authority, after which he was subjected to crossexamination, that even in his oral statement before the authority, the respondent workman had mentioned name of Mr. Shekh Mahemad Abu Nasar and asserted that he had worked under the supervision and as per the instructions of the said person/Manager.
8.6 During the hearing of present petition, this Court inquired from the learned counsel for the petitioner as to whether the said person Mr. Shekh Mahemad Abu Nasar was working with the petitioner company as its Manager or not, and in reply the learned counsel for the petitioner fairly admitted and submitted that the said person was actually working with the petitioner company as Manager of the petitioner company.
9. In this view of the matter, it becomes relevant to note that if the respondent workman had never worked with the petitioner company, as it has been claiming, then, he would not know the name of petitioner company's Manager and would not be in position to state in his evidence that he was working under the authority and supervision of a person named by him.
9.1 When the said oral and documentary evidence given by the respondent workman is conjointly taken into account and it is also taken into account that the petitioner company did not lead any evidence, whatsoever, i.e. any oral or documentary evidence and more particularly did not examine the said Manager to rebut the claim of the workman then, the decision of the Controlling Authority to proceed on the basis of uncontroverted evidence of the respondent workman cannot be faulted.
9.2 Similarly, the decision of the Appellate Authority to accept the decision of the Controlling Authority based on such evidence also cannot be faulted.
10. The learned counsel for the petitioner wants this Court to accept his contention that the respondent workman did not produce any evidence on record to establish that he was employed by the petitioner company and that he had worked for 240 days continuously for 5 years and was entitled for gratuity.
10.1 From the said submission of the learned counsel for the petitioner, it appears that the petitioner wants to enjoy the luxury of not placing any oral or documentary evidence from its side on record before the Controlling Authority and it also wants to enjoy the luxury of not placing any evidence in rebuttal to contradict the evidence placed by the respondent workman on record and also wants luxury that this Court should believe this version and discard the uncontrovered evidence placed on record by the respondent workman.
10.2 To say the least, this Court, after having considered two concurrent orders based on facts on record and appreciation of evidence, can not allow the petitioner company to have such luxury and accept his such submission.”
4. We are in complete agreement with the view taken by the learned Single Judge, affirming two concurrent orders of the competent authorities and we do not find any error committed by the learned Single Judge. Hence, this appeal is devoid of merits and the same is dismissed in limine, along with Civil Application.
[ V. M. Sahai, J. ] [ G. B. Shah, J. ] hiren