JUDGMENT :

The petitioner, a partnership firm, has filed this writ petition challenging Ext.P1 order passed by the controlling authority under the Payment of Gratuity Act, 1972 [for brevity, ‘the Act’] on an application preferred by the 4th respondent employee.

2. The 4th respondent filed an application before the 3rd respondent, the controlling authority, claiming gratuity. According to the 4th respondent, she started working in the establishment of the petitioner from 02.08.1982 and continued till 31.12.2018 and her last drawn salary was Rs.8,000/-. It was contended that though she requested the employer to determine and pay the gratuity, the same was not paid. The controlling authority issued notice to the employer. However, the notice was returned with the postal endorsement “intimation 30.08.2022”. Finding that the employer has willfully refused notice, the employer was declared ex parte on 18.10.2022. The controlling authority proceeded with the matter and passed Ext. P1 order holding that the 4th respondent is entitled for gratuity of Rs.1,66,153/- with 10% interest from 01.01.2019.

3. According to the petitioner, they did not receive the notice of the proceedings before the controlling authority and came to know about the award only when revenue recovery proceedings were initiated against them. Though an appeal was preferred against Ext.P1 order, it was rejected for non-deposit of the amount required under the 2nd proviso to Section 7(7) of the Act. The petitioner, thereafter, submitted Ext.P2 representation before the controlling authority stating that they have not received any notice in connection with the proceedings before the authority and accordingly prayed for setting aside the ex parte order and to rehear the matter. Since there was no response from the controlling authority on Ext.P2, the petitioner has filed this writ petition.

4. A counter affidavit has been filed by the 4th respondent contending that the employer flouted the statutory provisions with regard to payment of gratuity when it became due and more than 60 Gratuity cases are pending against the petitioner and the petitioner had purposefully evaded service of notice in the Gratuity case and though Ext. P1 order was served on the petitioner, the amount was not paid and the 4th respondent has filed application under Section 8 of the Act for recovery of gratuity. It is further contended that since the petitioner had already preferred an appeal against Ext. P1 award, Ext. P2 application before the controlling authority is not maintainable.

5. Heard Sri. E.S.M. Kabeer, the learned counsel for the petitioner, Sri. R. Kishore, the learned counsel for the 4th respondent and Sri. V.S. Sreejith, the learned Government Pleader.

6. The notice issued to the petitioner by the controlling authority was returned with the postal endorsement “intimation 30.08.2022”. Finding that the petitioner has willfully refused notice, the petitioner was declared ex parte on 18.10.2022. Since the notice was returned with the endorsement 'intimation', it will amount to deemed service of notice on the petitioner. Rule 11(5) of the Payment of Gratuity (Central) Rules, 1972 provides that, if the employer concerned fails to appear on the specified date of hearing after due service of notice without sufficient cause, the controlling authority may proceed to hear and determine the application ex parte. It further provides that if the applicant fails to appear on the specified date of hearing without sufficient cause, the controlling authority may dismiss the application. However, the proviso to Rule 11(5) provides that an order under Rule 11(5) may, on good cause being shown within 30 days of the said order, be reviewed and the application re-heard after giving not less than 14 days’ notice to the opposite party of the date fixed for re-hearing the application. The petitioner did not approach the controlling authority to set aside the ex parte order and to review the order within the statuto