M/S Community Centre Pre University College Vs Smt Veena G

M/S COMMUNITY CENTRE PRE UNIVERSITY COLLEGE No.2/1, 9TH CROSS, 9TH MAIN ROAD, 2ND BLOCK, JAYANAGAR, BANGALORE-560011 REPRESENTED BY ITS SECRETARY, SRI CHIKKAIAH AGED ABOUT 72 YEARS, S/O CHIKKAIAH

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&PETITIONER

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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(BY SRI. JEEVAN KUMAR B S.,ADVOCATE)

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AND:

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SMT VEENA G NO.5, 19TH CROSS, 20TH MAIN, SMS LAYOUT, J P NAGAR, 5TH PHASE, BANGALORE-560078

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NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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THE ASSISTANT LABOUR COMMISSIONER AND APPELLATE AUTHORITY UNDER GRATUITY ACT, BENGALURU DIVISION-2, KARMIKA BHAVAN, BANNERGHATTA ROAD, BENGALURU-560029

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LABOUR OFFICER AND CONTROLLER UNDER GRATUIRY ACT BENGALURU SUB DIVISION-2, KARMIKA BHAVAN, BANNERGHATTA ROAD, BENGALURU-560029

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&RESPONDENTS

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(BY SRI.RAJENDRA.K.R, AGA FOR R2 AND R3 .,

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V.O DATED 04.10.2021, NOTICE TO R1 IS TAKEN AS SUFFICIENT)

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THIS WP IS FILED PRAYING TO-SET ASIDE THE ORDER DATED 09.03.2020 PASSED BY THE R-2 IN CASE ANNEXUREFCONSEQUENTLY SET ASIDE THE ORDER DATED 31.5.2019 PASSED BY THE R-3 IN CASE ANNEXURE-CGRANT AN INTERIM ORDER TO DIRECT THE R-2 NOT TO RELEASE THE AMOUNT DEPOSITED BY THE PETITIONER DURING THE TIME OF FILING THE APPEAL.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING

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IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard learned counsel for the petitioner, Sri.Jeevan Kumar.B.S.

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Learned Additional Government Advocate accepts notice for respondent Nos.2 and 3.

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There is no representation on behalf of

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respondent No.1 despite service of notice being held sufficient.

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This petition is filed by the petitioner-

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management which is an Educational Institution. The first respondent was employed with the petitioner as a lecturer in the Pre - University College from 05.06.2009. Thereafter she resigned on 28.04.2017. The first respondent was drawing the salary of Rs.23,800/- as on the date of her resignation.

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4 - NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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The respondent No.1 filed an application for

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payment of gratuity; along with the application, she has filed a statement to show that she was earning Rs.23,800/- as last drawn wages, and based on the said amount, she is entitled to gratuity which she has calculated at Rs.1,23,576/- + interest at 12%.

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Petitioner filed statement of objections denying the claim so made by the respondent No.1 and also put up a plea that the respondent No.1 is liable for prosecution for suppression of the material fact, misconduct and fraudulently obtained employment by stating she had obtained master's degree and therefore she would not be entitled to gratuity, as she has not been awarded any meritorious service with the petitioner - Institution.

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Respondent No.3, after considering the statement of objections filed by the petitioner, passed an order for payment of gratuity to the respondent No.1 by calculating the amount of Rs.23,800/- as salary. Aggrieved

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5 - NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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by the same, the petitioner had challenged the said order before the appellate Authority - respondent No.2 which on reconsideration, despite vehement submissions put forth by the learned counsel for the petitioner, same came to be dismissed, affirming the order of the Controlling Authority.

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It is the vehement contention of the learned counsel for the petitioner that the order passed by the controlling authority as well as the appellate authority is illegal, perverse, and arbitrary for the reason that the respondent No.1 has not completed meritorious service, so also an amount of Rs.23,800/- calculated by the controlling authority and the appellate authority affirming the same is perverse and illegal; she would not be entitled to a gratuity at the rate of Rs.23,800/-.

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It is submitted by the learned counsel for the petitioner that during the pendency of the proceedings before the Controlling Authority, he had deposited an

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NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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amount of Rs.1,09,846/- along with 10% interest from

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29.06.2017 as per the order of the Controlling Authority.

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Learned counsel for the petitioner submits that while granting an interim order in this case, this Court has directed the respondent No.1 to withdraw 70% of the amount deposited by the petitioner before the Controlling Authority.

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Respondent No.2 was directed to release the said amount in favour of respondent No.1. Despite service of notice to respondent No.1, there is no appearance. Admittedly, respondent No.1 has resigned, and she is no more in employment with the petitioner-Institution. Therefore, it is not in the knowledge of the petitioner whether the respondent No.1 has withdrawn 70% of the said amount as ordered by this Court.

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The primary argument of learned counsel for the petitioner is that the gratuity amount ought to have been paid as contemplated under Section 2(s) of the

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NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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Payment of Gratuity Act, 1972, which falls in the definition

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of wages.

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(s) "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employments and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.

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In the present case on hand, on the basis of the application and the statement filed by the respondent No.1, the Controlling Authority has ordered for payment of gratuity amount taking the salary/wages as Rs.23,800/per month and has calculated the amount and passed an order for release of the gratuity amount to an extent of Rs.1,08,846/- along with interest at 10%; the same has been affirmed by the Appellate Authority.

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I have heard the learned counsel for the petitioner and learned Additional Government Advocate

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8 - NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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representing the respondent Nos.2 and 3. I am in agreement with the learned counsel for the petitioner that the wages is clearly defined under the provisions of the Section 2(s) of the Act. Therefore, the gratuity which is ordered by the Controlling Authority and affirmed by the Appellate Authority may not be correct for the reason that the Controlling Authority ought to have calculated the wages as per Section 2(s) of the Act, and not by taking the amount at Rs.23,800/-.

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In view of the above, there is a glaring error committed by both the Controlling authority and the Appellate Authority. Hence, this Court is of the opinion that the matter requires consideration.

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Accordingly, I proceed to pass the following order:

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ORDER

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The petition is allowed in part .

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NC: 2025:KHC:36832 WP No. 8293 of 2020

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HC-KAR

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The order of the Controlling Authority dated

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31.05.2019 passed by the respondent No.3 is hereby set aside and so also the order dated 09.03.2020 passed by the respondent No.2.

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This matter is remitted back to the Controlling

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Authority for reconsideration of the matter, taking into consideration the observations made by this Court and also more specifically, Section 2(s) of the Payment of Gratuity Act, 1972, for arriving at a conclusion.

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The Controlling Authority shall also keep in

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mind whether the respondent No.1 has withdrawn any amount or any excess amount has been paid; same shall be considered suitably in accordance with law.

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Ordered accordingly.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK,List No.: 1 Sl No.: 28

M/S Community Centre Pre University College v. Smt Veena G

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M/S Community Centre Pre University College v. Smt Veena G

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