The court held that the Controlling Authority should have taken a liberal approach and restored the application for claiming gratuity, as the petitioner had reasons for non-appearance, which were not accepted.

The petitioner challenges Ext.P7 order passed by the Controlling Authority under the Payment of Gratuity Act . The claim of the petitioner for gratuity was dismissed on 4.7.2017 for non appearance. The petitioner, later, filed Ext.P5 application for restoration on 20.7.2017. The application was however rejected by Ext.P7 order stating that sufficient cause has not been shown.

2. A statement has been filed by the 1st respondent as directed by this Court on 10.4.2019 in which it is stated that neither the petitioner nor his agent was present on 23.5.2017, 8.6.2017, 20.6.2017 and 4.7.2017 and the petitioner did not even inform the Controlling Authority that the agent was hospitalized. Moreover, the petitioner also did not file any petition for causing the case to be adjourned and hence the claim was dismissed on 4.7.2017.

3. I have heard Sri. Rahul Surendran, the learned counsel for the petitioner and the learned Government Pleader appearing for the 1st respondent.

4. I have considered the rival submissions raised across the Bar.

5. The proceeding sheet produced in the writ petition as Ext.P3 shows that the Controlling Authority had conducted the proceedings on various dates from 18.3.2015 and ultimately dismissed the claim petition on 4.7.2017 for non representation of the applicant. It is also pertinent to note that from 23.5.2017 to 20.6.2017 there was no representation on the side of the petitioner and hence the case was dismissed on 4.7.2017. The application for review of the said order was filed on 20.7.2017. The power for review is conferred on the Controlling Authority in terms of the proviso to Sub Rule 5 of Rule 11 of the Kerala Payment of Gratuity Rules, 1973.

6. A perusal of Ext.P5 application shows that there is a categoric averment that, after 23.5.2017, the petitioner was not able to note the date. Thereafter, the date of dismissal was noticed only on publishing the case diary. This application though was opposed by the 2nd respondent, the 1st respondent took the view in Ext.P7 that there is no evidence to show that the agent of the petitioner was hospitalized on 8.5.2017 and thereafter had undergone a surgery on 16.5.2017 preventing him from appearing before the Controlling Authority.

7. Be that as it may, the fact remains that Ext.P5 application for review of the order was filed in time. The order passed by the Controlling Authority dismissing the claim was not on merits but on default. After exhausting the remedy under the proviso to Sub Rule 5 of Rule 11, it is to be noted that the petitioner does not have vested any other alternative mechanism by which the dispute could be resolved. It is a fact that the petitioner has reasons for his non appearance. The said reason was not accepted. However, the fact remains that, in his application for restoration, there is a specific assertion that the non appearance on 4.7.2017 was not purposeful but only due to an inadvertent omission with regard to the noticing of the date of the proceeding.

8. Therefore, in the considered view of this Court the Controlling Authority ought to have been taken a liberal approach and should have restored the application for claiming the gratuity and render the decision on merits. Having not done so, there is certainly an abdication on the part of the 1st respondent in passing Ext.P7 order. Therefore, the petitioner is justified in invoking the jurisdiction of this Court under Article 226 of the Constitution of India seeking for appropriate reliefs:

9. considering the totality of facts and circumstances and also in view of the fact that an opportunity to contest the claim on merit should be given to the petitioner. this court is of the view that ext.p7 and order dated 4.7.2017 have to be set aside and the matter be restored back to the files of the controlling authority. however, the petitioner cannot, as a matter of right, seek for restoration. this court is concerned about the manner in which the proceedings have been conducted. it is to