Avinash G. Gharote DECISION
Avinash G. Gharote, J.
1. Heard Mr. Puranik, learned counsel for the petitioner and Mr. Lambat, learned counsel for the respondent.
2. The petition questions the judgment dated 26.3.2018 passed by the Controlling Authority under Section 7 of the Payment of Gratuity Act [for short "The PG Act"] whereby the claim made by the respondents for gratuity has been granted (pg. 69). The appeal there against by the present petitioner under Section 7(7) of the PG Act, has been dismissed by the judgment dated 19.10.2019 (pg. 111).
3. Mr. Puranik, learned counsel for the petitioner submits that there is a jurisdictional lacunae inasmuch as there is no material on record to indicate that the petitioner at any point of time had ever employed more than 10 persons, which is the basic requirement for attracting the provisions of the PG Act. It is also contended by him that merely because the petitioner establishment had sought registration under the Employees' Provident Fund Act (in short the EPF Act), that by itself would not lead to a presumption that there were more than 10 persons employed by the petitioner-establishment, in view of the provisions of Section 1(4) of the EPF Act. It is further contended that though material has been brought on record to indicate that the establishment by name Hotel Ashok had more than 20 employees, that was a separate establishment altogether inasmuch as it was the proprietary concern (pg.51) of the petitioner, whereas Motel Sunny was the partnership firm (pg. 49) and the mixing of both the establishments for the purpose of applying the PG Act did not arise at all. He therefore submits that the impugned judgments cannot be sustained and needs to be quashed and set aside.
4. Mr. Lambat, learned counsel for the respondents justifies the impugned judgments and contends that the very registration of Motel Sunny under the EPF Act would indicate the satisfaction of the requirement for the applicability of the PG Act of there being 10 or more employees. He further submits that though the petitioner was given a notice to produce documents, the same were not produced on account of a plea that due to passage of time the same had been lost. He further submits that the cross examination of the respondent and the evidence of PW-1 would support the contention that the petitioner establishment had more than 10 employees.
5. Learned AGP appearing for respondent Nos. 2 & 3 supports the impugned judgments.
6. For the PG Act to be applicable, in view of the language of Section 1(3) of the PG Act, it is necessary for there to be 10 employees employed by the establishment in the preceding calender year. In view of the language of Section (1) 3A, the Act would be applicable notwithstanding that the number of persons employed at any time after the Act became applicable, falls below 10. It is therefore apparent that to invoke the jurisdiction of the Controlling Authority under the PG Act, a jurisdictional fact of 10 employees having been employed by the establishment at any point of time has to be established on record. A perusal of the complaint (pg.23) would indicate that no such statement has been made, neither does such a statement find place in the affidavit evidence of the respondent. So also no document has been placed on record except the one with Exh.16 (pg.43) in support of the plea that the jurisdictional fact has been satisfied. A perusal of the document at Exh. 16 (pg.43) would indicate that the said document relates to registration of the petitioner establishment with the Employees' Provident Fund Organization. It however indicates that ........