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2007 Supreme(Guj) 317
Gujarat High Court
Judgename :D.H.WAGHELA
LAMBHA BALIAKAKA PROPERTY TRUST - Appellant
Versus
TULSABEN DHARAMBHADUR SHAHI - Respondent
CIVIL APPLICATION 6789 Of 2007
Decided On : 05/11/2007
Headnote:Point in Issue :
Whether in facts of the case Controlling Authority was justified in drawing inference in favour of respondent-widow?
Head Note :
Payment of Gratuity Act, 1972 - Section 15 (1) - Payment of Gratuity (Gujarat) Rules, 1973 - Rules 7, 8, 10, 11 and 13 - Claim of gratuity - Controlling Authority - Jurisdiction - Scope of - Finding as to - In the facts respondent widow has only pursued the proceedings in accordance with Rules - Petitioner has raised objection of there being other heirs and only to fortify that objection the affidavit of one of the sons was filed - Issue of re-marriage of widow is very casually dealt with by petitioner without giving any details in that regard - Petitioner produced no evidence to sustain his allegations while allegation of re-marriage was categorically denied by widow by filing her affidavit before the Controlling Authority - As recorded in impugned order dated 10.04.2006 the parties were called for hearing on several occasions during the period from 01.12.2005 to 20.03.2006 but employer failed to follow any of the mandatory provisions of the Rules - In such circumstances the Controlling Authority was justified in drawing necessary inference in favour of widow - It is also necessary to mention that petitioner at one stage consented to an order for payment of gratuity being made to respondent widow - It is afterwards several issues are raised with the help of her son who is admittedly employed by them - As far as the claim of a share in the amount of gratuity of each of the sons of deceased employee it could only be determined by appropriate proceedings in a Civil Court - Controlling Authority has no jurisdiction in that regard - Thus no case was made out for interference with the impugned orders.Held :
In the facts of the present case, the proceedings are pursued in accordance with the rules only by the respondent-widow and it was by way of a defence that the petitioner had raised objection of there being other heirs and it was to fortify that objection that the affidavit of one of the sons was filed. Incidentally, the issue of remarriage of the widow, without any details of the date of such remarriage, the person who had married the respondent-widow, or their place of living, was also raised by that affidavit. The petitioner did not avail the opportunity of leading any evidence of their own as regards the salary or tenure of the deceased husband or produce any son as a witness though the details furnished all throughout by the widow as the basis of her claim were denied by the petitioner. The allegation of remarriage was categorically denied by the widow by filing her affidavit before the Controlling Authority. [Para 7]
It also appears that learned Advocate and representative of the petitioner had, at one stage, consented to an order for payment of gratuity being made in favour of the respondent-widow and, afterwards, raised several issues with the help of her son who is admittedly employed by them. It appears to be of a piece with that strategy that a civil application is also filed in the present proceeding by all the three sons with the prayer to join them as party-respondents and legal heirs of the deceased employee. It is again averred that the respondent-widow had remarried after the death of their father and had ceased to be his legal heir. Their address in the application is that of the petitioner and again, no details whatsoever about the alleged remarriage of the widow are stated in the application. Despite the above mandatory provisions of Sub-rule (3) of Rule 11, no affidavit is ever filed by, or in respect of the consent of, the representative of the petitioner, which is recorded in the impugned order of the Controlling Authority. [Para 8]
In the above facts and circumstances, the whole exercise of carrying on the litigation against the illiterate widow of the deceased employee, even after consenting to an order in her favour, clearly appears to be an abuse of the process of Court by involving the sons of the deceased who are admittedly in the employment of the petitioner. As far as the claim of a share in the amount of gratuity of each of the sons of the deceased employee or any other heir is concerned, it can now be determined only by an appropriate proceedings in a Civil Court on the basis of essential facts and applicable provisions of law. It is not the decision and determination by the Controlling Authority which is without jurisdiction, but it would have been beyond its jurisdiction to enter, on its own and without a rival claim being duly made, into the area of law of succession and determine the respective shares of the heirs for the purpose of dividing the amount of gratuity. [Para 9]
Law Laid Down :
In case of dispute between two sets of persons as being heirs of the deceased such a dispute ought to be settled by Civil Court and not by Competent Authority under Payment of Gratuity Act.
Case Law Analysis :
Hombe Gowda Educational Trust vs. State of Karnataka, 2006 (1) SCC 430 [Para 5.1].-Relied on
Conclusion :
In the facts the Controlling Authority was justified in drawing inference in favour of respondent-widow - Petitioner has made out no case for interference with the impugned orders.
Cases Referred :
Asha Devi vs. Sharda Devi, 1977 Lab IC 1939;; State of Karnataka vs. S.T. Hadimani, 2002 (3) SCC 25;; Dwariesh Sugar Industries Ltd. vs. Prem Heavy Engg. Works (P) Ltd., 1997 (6) SCC 450;; Ram, Chandra Singh vs. Savitri Devi, 2003 (8) SCC 319;; Gujarat Mineral Development Corporation vs. P.H. Brahmbhatt, AIR 1974 SC 136;; The King vs. The Assessment Committee of the Metropolitan Borough of Shoreditch, 1910 (2) KBD 852;; The State of Madhya Pradesh vs. Sardar D.K. Jadav, AIR 1968 SC 1186;; Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi, AIR 1959 SC 492;; Ebrahim Aoobakar & Anr. vs. Custodian General of Evacuee Property, AIR 1952 SC 319;; The Bharat Bank Ltd. Delhi vs. Employees of The Bharat Bank Ltd., 1950 SCR 459;; Heirs of Anjana Samji Chela vs. Heirs of Anjana Hirji Ahiji, 2000 (3) GLR 2331;; Smt. Kasturi Devi vs. Deputy Director of Consolidation & Ors., 1976 (4) SCC 674.
Petition Rejected
( 2 ) SIMPLE facts of the case are that respondent No. 1 had claimed gratuity from the petitioner on the basis that her husband had joined service as watchman since 2. 1. 1971 and, after he was discharged on 26. 2. 2001, he had passed away on 22. 2. 2003. On the basis of his last drawn salary of Rs. 2,000/- per month and service of 30 years, she claimed Rs. 34,650. 92 ps. by way of gratuity. An application in Form k prescribed under the Payment of Gratuity (Gujarat) Rules, 1973 (for short "the Rules") was submitted to the petitioner on 22. 9. 2005 and an application in Form n under the same Rules was submitted on 14. 10. 2005 to the Controlling Authority under the Payment of Gratuity Act, 1972 (for short, "the Act" ). Thumb impressions of the applicant were put on the said applications and an affidavit dated 18. 1. 2006 was submitted before the Controlling Authority to, inter alia, submit that she was the widow of the deceased employee, that she was the only heir of the deceased, her name was entered as such in respect of other assets of the deceased and she was maintaining the family of her husband. It was also stated by her that she was earning her livelihood by doing labour work and maintaining three sons, namely, Gangaram aged 30, Rajesh aged 26 and Khemraj aged 15, even as the former two sons were living separately. She categorically stated that she had not remarried and did not propose to remarry. However, an affidavit dated 23. 2. 2006 of Kanubhai alias Rajeshbhai claiming to be a son of the deceased was filed by the employer with the statements, inter alia, that he was the son of another wife of the deceased, that he had learnt that the respondent-widow had remarried and was living with her second husband; that he was employed in the place of his father and he and his two other brothers were the legal heirs of the deceased workman. He claimed ignorance about the whereabouts of the husband with whom the respondent-widow had remarried. The petitioner-employer also, on the same day, filed a detailed written statement raising objections about jurisdiction, applicability of the Act, status of the widow and non-jointer of the other heirs; and disputing the calculation of the amount claimed as also requesting to allow cross-examination of the widow.
2. 1 The Controlling Authority has, in its impugned order dated 10. 4. 2006, recorded that authorized representative of the petitioner, namely, Advocate Shri Dipak Parmar, had expressed his consent to the payment of gratuity to the widow and that consent was recorded. The Controlling Authority accepted the claim and the details on which it was based and observed that the affidavit dated 23. 3. 2006 of the son of the deceased by his deceased wife was produced by advocate of the employer, and not by him in person. In view of the statement made by the widow in her affidavit dated 28. 1. 2006 that she had not remarried and she did not propose to remarry, the impugned order to pay her Rs. 34,614/- by way of gratuity was made.
( 3 ) BEING aggrieved by the aforesaid order, the petitioner preferred an appeal, after delay of about three months and 15 days, and raised the grievances, inter alia, that the Controlling Authority had ignored the affidavit of the son of the deceased, that it was required to determine the heirs and their share, that a will, succession certificate or an order of competent court was required to be placed on record before ordering payment of gratuity to any particular hei
