ORDER :

1. The petitioner has filed the instant writ petition under Article 226 of the Constitution of India challenging the order dated 1.8.2008 passed by Appellate Authority under Payment of Gratuity Act, 1972-cum-Regional Labour Commissioner (C), Raipur in Appeal No. PGA-33/2006, whereby the appeal filed by the petitioner has been dismissed against the order dated 14.6.2004 passed by Assistant Labour Commissioner (Central), Raipur & Controlling Authority under Payment of Gratuity Act, 1972, by which the controlling authority has directed the petitioner/Bharat Petroleum Corporation Limited to pay a sum of Rs. 3,50,000/- as gratuity alongwith simple interest @ 10% per annum to respondent No. 1.

2. Facts of the case, as projected by the petitioner, are that the petitioner is a Public Sector undertaking Company, which manufacturer, distributes, stores, supplies and market Petroleum products throughout India and having its Head Officer at Mumbai. The respondent No. 1 was initially appointed as a clerk in the petitioner-Company and subsequently he was promoted to the Management Cadre and he was working as Deputy Manager (Sales) Lubes, Raipur on 21.07.1986. During his employment at Shapur Basti and Raipur, respondent No. 1 remained unauthorized absent for a period of about 355 days i.e. from March, 2001, till April 2002. Thereafter, the petitioner/Company has charge-sheeted him on 23rd May, 2002 stating inter alia for commission of misconduct of unauthorized absent from work for the period from 1.3.2001 to 23.5.2002. In continuation with issuance of charge-sheet, the petitioner-Company initiated a departmental enquiry against respondent No. 1. During the course of said disciplinary proceedings, respondent No. 1 submitted his resignation dated 5.5.2003. The said resignation came to be accepted with effect from 4.6.2003 vide letter dated 2.6.2003 and he was relieved accordingly. In the letter accepting his resignation, the Competent Authority also directed to treat his absence for 355 days as mentioned in the charge-sheet for all terminal dues. The petitioner/Company has also stated in his letter of acceptance of resignation of respondent No. 1 from the services that the said resignation is subjected to adjustment of legal dues, the petitioner was entitled to adjust the dues recoverable from respondent No. 1 against the gratuity payable to him. Apart from this, the respondent No. 1 had also taken vehicle loan amounting to Rs.2,36,613.76/- and applicable interest thereon was also recoverable against the gratuity. The petitioner/Company stated that in all an amount of Rs. 6,10,316.23/- was recoverable from respondent No. 1 at the time of acceptance of his resignation. It has been further contended that as per the Payment of Gratuity Act, 1972, the respondent No. 1 was entitled to get an amount of Rs.3,37,668/- as gratuity, after adjusting the amount recoverable from him, he was liable to pay balance amount to the petitioner-Corporation. It has also been stated that resignation of respondent No. 1 shall come into force only when the adjustment of the said dues recoverable from respondent No. 1 will be done. The petitioner/Company has also filed a Summary Suit No. 2527 of 2005 before the High Court of Judicature at Bombay for recovery of the aforesaid amount from respondent No. 1, which is pending consideration, therefore, the gratuity amount has been adjusted, as such, no gratuity is payable to respondent No. 1.

3. Due to inaction of the petitioner in releasing the gratuity, respondent No. 1 filed an application before the learned Controlling Authority-cum-Assistant Labour Commission (Central), Raipur on 8.12.2003 claiming gratuity to the tune of Rs. 3,50,000/- with interest. The petitioner/Company vehemently opposes the said application by filing reply.

4. Learned Controlling Authority, after appreciating the submissions made by counsel for the parties, vide its order dated 14th June, 2004 held that petitioner-Company is liable to pay an