(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The appellant has invoked Clause 15 of the Letters Patent for calling into question order dated 9.11.2011 in Special Civil Application No.7095 of 2011 of learned Single Judge of this Court whereby the petition of the appellant is dismissed with the observation that it will not prejudicially affect the right of the appellant to recover the amount paid by him under the orders of controlling authority, which was confirmed by the appellate authority.
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. Under the circumstances, the clarification recorded by learned Single Judge in the last paragraph of the impugned order is sufficient for the appellant for effecting necessary recovery from the contractor and no further order is required as prayed by the appellant. Therefore, the appeal is dismissed.
(D.H.Waghela, J.) (Mohinder Pal, J.) *malek Top