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2016 Supreme(Guj) 1316
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. Thaker, J.
Multimantech International Pvt. Ltd. - Appellant
Vs.
R.K. Gupta - Respondent
Special Civil Application No. 15585 of 2008
Decided On : 20-07-2016
Advocate Appeared:
For the Appellant : Maulik G. Nanavati
For the Respondent: P.C. Chaudhari
The court emphasized the importance of considering delay and granting a hearing before dismissing an appeal, and clarified that unreasoned orders should not be treated as precedent.
Headnote:
Payment of Gratuity Act - Appeal - 1972 - Section 7(7) - Rule 11(5)
Fact of the Case:
The petitioner company filed an appeal against an order passed by the appellate authority under the Payment of Gratuity Act, 1972, which dismissed the appeal on the ground of delay. The petitioner claimed that the original order was ex-parte and sought a review, which was rejected by the controlling authority. The appeal was also dismissed by the appellate authority without considering the delay and without granting an opportunity for a hearing.
Finding of the Court:
The court found that the appellate authority's dismissal of the appeal without considering the delay and without granting a hearing was unjust. The court also noted that the original order was unreasoned and non-speaking, and clarified that it should not be treated as precedent in subsequent litigation.
Issues: The issues revolved around the dismissal of the appeal based on delay, the rejection of the review application, and the quantification of gratuity in the original order.
Ratio Decidendi: The court held that the appellate authority should have considered the delay and granted a hearing before dismissing the appeal. It also emphasized that the original order should not be treated as precedent due to its unreasoned nature.
Final Decision: The court set aside the orders of the appellate authority and the controlling authority, and terminated the proceedings. It directed the respondent to return a portion of the deposited amount to the petitioner.
K.M. Thaker, J.
1. Heard Mr. Nanavati, learned advocate for the petitioner, and Mr. Chaudhari, learned advocate for the respondent.
2. In this petition, the petitioner company has prayed, inter alia, that:-
"12(a) To pass an order setting aside the communication dated 13.10.2008 sent by the Appellate Authority, Ahmedabad under the Payment of Gratuity Act, 1972 returning the appeal and direct the Appellate Authority to consider and adjudicate the appeal on merits and in accordance with law;"
3. The petitioner is aggrieved by order dated 13.10.2008 passed by the appellate authority appointed under the provisions of the Payment of Gratuity Act, 1972 whereby the appellate authority did not entertain the appeal filed by present petitioner on the solitary ground of delay. By communication dated 13.10.2008, the authority, without even considering the submissions by the appellant and without even issuing notice for hearing, dismissed the appeal by conveying the petitioner that since the appeal is filed after prescribed period of limitation, the appeal is not entertained.
4. So far as factual background is concerned, it has emerged from the record that the controlling authority passed order dated 31.3.2008 in favour of the original claimant i.e. present respondent and directed present petitioner company to pay Rs. 76,330/- towards gratuity.
4.1 It appears that after the petitioner received the said order, the petitioner filed review application before the controlling authority on the ground that though the learned advocate was present on the scheduled date of hearing and an application seeking adjournment was submitted with no objection from other side, the impugned order was passed as a result of which the petitioner did not get opportunity of hearing and that the impugned order was passed in breach of principles of natural justice. It was claimed that the order dated 31.3.2008 is an ex-parte order and that therefore, it may be recalled and the matter may be heard after granting opportunity to the petitioner company.
5. At this stage, it is relevant to note that, Mr. Chaudhari, learned advocate for the respondent, disputed the contention that the said order dated 31.3.2008 can be termed as an ex-parte order. He tried to submit that the company had filed appearance, its advocate had also attended the proceedings and filed reply and contested the matter and that therefore, the order cannot be said to be ex-parte.
6. The said Misc. Application seeking review of the order dated 31.3.2008 came to be rejected by the controlling authority vide order dated 6.6.2008. In the said order, the controlling authority has not recorded contentions by either side and has also not recorded any conclusion with regard to the contentions of the contesting parties. Without recording any reasons and without recording any conclusion, the controlling authority rejected the said Misc. Application only on the ground that against the order passed by the controlling authority, review application cannot be filed.
7. As mentioned earlier, the application was filed on the ground that the order was passed ex-parte. In this context, it is relevant to take into account the provision under Rule 11(5) which provides that in case of ex-parte order, an application for review (request to recall ex-parte order) is maintainable on such application can be filed.
In the event, the controlling authority is of the view that the application is without merits and the order cannot be termed as ex-parte, then also, appropriate conclusion should be recorded after hearing he parties while deciding the Misc. Application seeking review of the order.
The authority may reject the application on the ground that the order was not ex-parte and/or that the application is without merits, however, even such conclusion should be recorded and should form part of the order which, in turn, should be passed after hearing the parties.
However, in present case, the order dated 6.6.2008 does not contain an
