# Chief Executive Officer, U.P. Khadi & Village Industries Board, Lko & Anr v. Controlling Authority Under Payment of Gratuity Act/ Asst. Labour Commissioner, Lko & Anr

- **Citation:** (2023) 8 ILRA 1478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Writ-C No. 4651 of 2002
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chief-executive-officer-u-p-khadi-village-industries-board-lko-anr-v-50550
- **Pages:** 7

## Headnote

Civil Law - Payment of Gratuity Act, 1972 -
Sections 2(e), 4 & 7(4) - Determination of
Gratuity
-
Employee
engaged
on
consolidated honorarium - Termination
followed by contractual re-engagement -
Continuous service from 1982 to 2013
established - Last drawn wages proven to
be ₹8,500/- based on cheque evidence -
Employer failed to cross-examine or rebut
evidence - Delay of 9 years due to
employer's non-participation - No remand
warranted when evidence sufficient and
parties heard - Legal maxim "commodum
ex injuria sua nemo habere debet" applied
- Employer cannot take advantage of own
wrong.

Held: Where the petitioner-employer, despite
due notice, failed to contest the gratuity claim
diligently and refrained from cross-examining
the claimant, the findings of the Controlling
Authority based on oral and documentary
evidence, including cheque proof of last drawn
salary, cannot be said to be perverse. In such
circumstances, prayer for remand is not
maintainable as it would only prolong litigation
and amount to rewarding a litigant for his own
default. Legal maxim "no man shall take
advantage
of
his
own
wrong"
squarely
applicable.

Petition Dismissed.

Relied on:

## Text

1478 INDIAN LAW REPORTS ALLAHABAD SERIES
application for making them parties, subject of
course to the law of limitation. Normally, if the
plaintiff had known about the death of one of the
defendants at the time of institution of the suit, he
would have filed a suit in the first instance against
his heirs or legal representatives. The difficulty
that the High Court experienced in granting the
application filed by the plaintiff under Order 1
Rule 10 of the Code discloses, with great respect,
a hypertechnical approach which may result in
the miscarriage of justice. As the heirs of the
deceased Defendant 7 were the persons with vital
interest in the outcome of the suit, such
applications have to be approached keeping in
mind that the courts are meant to do substantial
justice between the parties and that technical rules
or procedures should not be given precedence
over doing substantial justice. Undoubtedly,
justice according to the law does not merely mean
technical justice but means that law is to be
administered to advance justice.

20. Having regard to the totality of the
narration made supra, there is no bar for filing the
application under Order 1 Rule 10, even when the
application under Order 22 Rule 4 of the Code
was dismissed as not maintainable under the facts
of the case. The legal heirs of the deceased person
in such a matter can be added in the array of
parties under Order 1 Rule 10 of the Code read
with Section 151 of the Code subject to the plea of
limitation as contemplated under Order 7 Rule 6
of the Code and Section 21 of the Limitation Act,
to be decided during the course of trial.

21. In view of the above, the impugned
judgment of the High Court is set aside. The
appeal is allowed. The trial court is directed to
implead the legal representatives of deceased
Defendant 7 and bring them on record, subject to
the plea of limitation as contemplated under
Order 7 Rule 6 of the Code, as well as under
Section 21 of the Limitation Act, 1963, to be
decided during the trial."

10. Thus, in the view of above settled
preposition, the Suit or Appeal, as the case may
be, filed against the dead person(s) in regard to
whom the plaintiff(s) or appellant(s), as the case
may be, was/were not aware before filing suit or
appeal, would not be non-est.

11. From the law, referred above, it is
crystal clear that the Suit or Appeal would not be
dismissed only on the ground that the same has
been filed against dead person(s) and the
plaintiff(s) or appellant(s), as the case may be, can
be permitted to bring on record the legal heirs of
the deceased who were indvertently impleaded.

12. In view of the aforesaid, this Court is not
inclined to entertain the present petition.

13. Accordingly, it is dismissed.

14. Interim order, granted earlier, shall
stands discharged.

15. The opposite party no. 1 is directed to
consider the application(s) for substitutions
pending before it in view of the law referred
hereinabove, expeditiously.
----------
(2023) 8 ILRA 1478
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 4651 of 2002

Chief Executive Officer, U.P. Khadi &
Village Industries Board, Lko & Anr.
 ...Petitioners
Versus
Controlling Authority Under Payment of
Gratuity Act/ Asst. Labour Commissioner,
Lko & Anr. ...Respondents
8 All. Chief Executive Officer, U.P. Khadi & Village Industries Board, Lko & Anr. Vs. Controlling
 Authority Under Payment of Gratuity Act/ Asst. Labour Commissioner, Lko & Anr.
1479
Counsel for the Petitioners:
Pankaj Patel, Akansha Gupta

Counsel for the Respondents:
C.S.C.

Civil Law - Payment of Gratuity Act, 1972 -
Sections 2(e), 4 & 7(4) - Determination of
Gratuity
-
Employee
engaged
on
consolidated honorarium - Termination
followed by contractual re-engagement -
Continuous service from 1982 to 2013
established - Last drawn wages proven to
be ₹8,500/- based on cheque evidence -
Employer failed to cross-examine or rebut
evidence - Delay of 9 years due to
employer's non-participation - No remand
warranted when evidence sufficient and
parties heard - Legal maxim "commodum
ex injuria sua nemo habere debet" applied
- Employer cannot take advantage of own
wrong.

Held: Where the petitioner-employer, despite
due notice, failed to contest the gratuity claim
diligently and refrained from cross-examining
the claimant, the findings of the Controlling
Authority based on oral and documentary
evidence, including cheque proof of last drawn
salary, cannot be said to be perverse. In such
circumstances, prayer for remand is not
maintainable as it would only prolong litigation
and amount to rewarding a litigant for his own
default. Legal maxim "no man shall take
advantage
of
his
own
wrong"
squarely
applicable.

Petition Dismissed.

Relied on:

1. Arvind Kumar Jaiswal Vs Devendra Prasad
Jaiswal Varun, 2023 SCC OnLine SC 146

2. Nadakerappa Vs Pillamma, 2022 SCC OnLine
SC 387

3. Shivakumar Vs Sharanabappa, (2021) 11 SCC
277

4. Kusheshwar Prasad Singh Vs St. of Bihar,
(2007) 11 SCC 447
(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Pankaj Patel, learned
counsel for petitioners as well as learned
Standing Counsel for respondents.

2. By means of the present writ
petition, the petitioner has challenged the
order dated 15.03.2021 passed by the
Controlling Authority under the Payment of
Gratuity Act, 1972 thereby allowing the
claim preferred by respondent and granting
gratuity of Rs. 216753/- for a period the
husband of the claimant has worked with
the petitioner.

3. The brief facts necessary for
adjudication of the present case are that the
husband of respondent No. 2 late Rama
was initially appointed on the post of
Master Potter in the Pottery Section in the
petitioner's organization by means of order
dated 03.12.1982 on consolidated salary of
Rs. 325/- per month. It has been stated that
services of husband of respondent No. 2
were terminated by order dated 18.08.2000.
Subsequently from 26.05.2003 he was reengaged on salary of Rs. 1500/- per month
on the post of Chowkidar/Potter on
contractual basis upto 05.11.2013.

4. The dispute in the present case
relates to non-payment of the amount of
gratuity to the husband of respondent No. 2
in regard to which a claim was filed under
the Payment of Gratuity Act, 1972 before
the Controlling Authority. In the claim, it
was stated that the husband of respondent
No. 2 was in continuous services of
petitioners
from
03.12.1982
till
his
superannuation on 05.11.2013 i.e. for a
period of 31 years and during the said
period he was receiving salary from the
petitioner and lastly he was receiving Rs.
12000/- per month, and was therefore
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to gratuity which has illegally and
arbitrarily withheld by the petitioner.

5. Notices were issued to the
petitioner who was put in appearance and a
written statement was filed by them
opposing the claim of respondent No. 2. It
has been fairly submitted by learned
counsel for petitioner that after filing of the
written statement their counsel never
appeared or participated in the proceedings
before the Controlling Authority.

6. In the said order, the Controlling
Authority has recorded that there is no
dispute with regard to appointment of
husband of respondent No. 2 but the claim
of respondent No. 2 has been partly
accepted to the extent that the services of
husband of respondent No. 2 were
terminated on 18.08.2000 and subsequently
he was re-engaged on contractual basis
from 26.05.2003 till 05.11.2013.

7. The contention of petitioner has
been accepted to the extent that husband of
respondent No. 2 had rendered 28 years 01
month and 24 days of services. With
regard to last salary drawn by husband of
respondent No. 2, it was stated by the
petitioners in the written statement that
he was receiving only Rs. 4,000/- per
month instead of Rs. 12,000/- per month
as claimed by respondent No. 2. In this
regard the Controlling Authority has
relied upon the evidence adduced by
respondent No. 2 where a cheque was
issued
by
petitioner
in
favour
of
respondent No. 2 holding the same to be
on account of wages paid to husband of
respondent No. 2 and accepted that he
was receiving Rs. 8500/- per month and
consequently quantified the amount of
gratuity to be paid to him on the said
basis.

8. Learned counsel for petitioner in
the present writ petition has disputed only
the quantum of the salary on the basis of
which the amount of gratuity has been
granted by the Controlling Authority by
means
of
impugned
order
dated
15.03.2021. He further stated that in his
written statement, the petitioner has clearly
stated that husband of respondent No. 2
was receiving only Rs. 4000/- per month
while the Controlling Authority in most
illegal and arbitrary manner has allowed
the claim of husband of respondent No. 2
treating his montly salary to be Rs. 8500/-
per month. In this regard it is noticed that
evidence was led by the respondent No. 2
and also documents were furnished by
them including the cheque indicating that
husband of respondent No. 2 was receiving
Rs. 8500/- per month as salary.

9. From the order-sheet, it is clear that
the statement of respondent No. 2 was
recorded and repeated opportunities were
given to the petitioner to cross examine him
but no cross-examination was conducted by
the petitioner and on the basis of material
before the Controlling Authority, he
concluded that husband of respondent No.
2 was receiving Rs. 8500/- per month as
salary. It is noticed that the said finding is
based upon material on record and it cannot
be said that the same is perverse or there is
any infirmity in the same. It is further
noticed that it is the fault of the petitioners
that they did not participate in the
proceedings after filing of the written
statement
and
the
proceedings
were
continuing for a period of 09 years before
the Controlling Authority. Merely because
averment has been made in the written
statement disputing claim regarding the
quantum of salary would not make their
stand conclusive and binding until there is
documentary or oral evidence adduced in
8 All. Chief Executive Officer, U.P. Khadi & Village Industries Board, Lko & Anr. Vs. Controlling
 Authority Under Payment of Gratuity Act/ Asst. Labour Commissioner, Lko & Anr.
1481
this regard. No documents were proved
before the Controlling Authority by the
petitioner in support of their averment
regarding the amount of salary paid to the
employee,
while
the
employee
had
submitted oral and documentary evidence
in this regard, and adequate reasons have
been given by the Controlling Authority for
returning a finding with respect to the
salary drawn by the husband of respondent
No. 2 to be Rs. 8500/- per month.

10. The Controlling Authority while
deciding the said matter has based his order
on the evidence before him and the
statement recorded and the documents filed
by the respective parties. The written
statement of the petitioner has been duly
considered and reasons for recording a
finding that husband of respondent No. 2
was receiving Rs. 8500/- per month has
been duly discussed and is based on cogent
material which is the evidence of payment
by cheque presented by respondent No. 2 in
the proceedings.

11. The learned Counsel for the
petitioner has vehemently submitted that the
matter be remanded for fresh consideration as
the petitioner was not heard before hearing of
impugned order. He submitted that the
counsel for the petitioner did not appear after
filing the written submission and in absence
of any representation on the behalf of
petitioner case was decided and hence in
order to afford due opportunity of hearing, in
the interest of justice the matter should be
remanded.

12. With regards to remand, the law is
well settled by the Hon'ble Apex Court in
several decisions.

13. Hon'ble the Apex Court in the
case of Arvind Kumar Jaiswal (D) Thr.
LR.
Vs.
Devendra
Prasad
Jaiswal
Varun, , 2023 SCC Online SC 146, has
held as under:-

"An order of remand prolongs
and delays the litigation and hence, should
not be passed unless the appellate court
finds that a re-trial is required, or the
evidence on record is not sufficient to
dispose of the matter for reasons like lack
of
adequate
opportunity
of
leading
evidence to a party, where there had been
no real trial of the dispute or there is no
complete or effectual adjudication of the
proceedings, and the party complaining
has suffered material prejudice on that
account. Where evidence has already been
adduced and a decision can be rendered on
appreciation of such evidence, an order of
remand should not be passed remitting the
matter to the lower court, even if the lower
court has omitted to frame issue(s) and/or
has failed to determine any question of fact,
which, in the opinion of the appellate court,
is essential. The first appellate court, if
required, can also direct the trial court to
record evidence and finding on a particular
aspect/issue in terms of Rule 25 to Order
XLI, which then can be taken on record for
deciding the case by the appellate court."

14. Hon'ble the Apex Court in the
case of Nadakerappa (D) Vs. Pillamma
(D), 2022 SCC Online SC 387, has held as
under:-

"It is settled law that the order of
remand cannot be passed as a matter of
course. An order of remand cannot also be
passed for the mere purpose of remanding
a proceeding to the lower court or the
Tribunal. An endeavour has to be made by
the Appellate Court to dispose of the case
on merits.Where both the sides have led
oral
and
documentary
evidence,
the
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Court has to decide the appeal
on merits instead of remanding the case to
the lower court or the Tribunal."

14. Hon'ble the Apex Court in the
case of Shivakumr and others Vs.
Sharanabappa and others, 2021 (11)
SCC 277 has held as under:-

"25.2. Rule 23A came to be
inserted in Order XLI CPC by way of the
Code of Civil Procedure (Amendment) Act,
1976. Prior to this amendment, it was
generally accepted by the Courts that
although under Rule 23, an order of remand
could be made only on reversal of a decree
disposing of suit on a preliminary point but,
the Appellate Court has the inherent power of
remanding a case where it was considered
necessary to do so in the interest of justice.
Some of the High Courts had made similar
provisions by way of their respective
amendments. Insertion of Rule 23A in Order
XLI by the Amending Act of 1976 makes it
explicit that even when the suit has been
disposed of otherwise than on a preliminary
point and the decree is reversed in appeal,
the Appellate Court shall have the power of
remand, if a re-trial is considered necessary.

25.3. A comprehension of the
scheme of the provisions for remand as
contained in Rules 23 and 23A of Order
XLI is not complete without reference to
the provision contained in Rule 24 of Order
XLI that enables the Appellate Court to
dispose of a case finally without a remand
if the evidence on record is sufficient;
notwithstanding that the Appellate Court
proceeds on a ground entirely different
from that on which the Trial Court had
proceeded.

25.4. A conjoint reading of Rules
23, 23A and 24 of Order XLI brings forth
the scope as also contours of the powers of
remand that when the available evidence is
sufficient to dispose of the matter, the
proper course for an Appellate Court is to
follow the mandate of Rule 24 of Order
XLI CPC and to determine the suit finally.
It is only in such cases where the decree in
challenge is reversed in appeal and a retrial is considered necessary that the
Appellate Court shall adopt the course of
remanding the case. It remains trite that
order of remand is not to be passed in a
routine manner because an unwarranted
order of remand merely elongates the life
of the litigation without serving the cause
of justice. An order of remand only on the
ground that the points touching the
appreciation of evidence were not dealt
with by the Trial Court may not be
considered proper in a given case because
the First Appellate Court itself is possessed
of jurisdiction to enter into facts and
appreciate the evidence. There could, of
course, be several eventualities which may
justify an order of remand or where remand
would be rather necessary depending on the
facts and the given set of circumstances of
a case.

25.4.1. The decision cited by the
learned Counsel for the appellants in the
case of Mohan Kumar (supra) is an apt
illustration as to when the Appellate Court
ought to exercise the power of remand. In
the said case, the appellant and his mother
had filed the civil suit against the
Government
and
local
body
seeking
declaration of title, perpetual injunction
and for recovery of possession in respect of
the land in question. The Trial Court partly
decreed the suit while holding that the
plaintiffs were the owners of the land in
dispute on which trespass was committed
by the respondents and they were entitled
to get the encroachment removed; and it
8 All. Chief Executive Officer, U.P. Khadi & Village Industries Board, Lko & Anr. Vs. Controlling
 Authority Under Payment of Gratuity Act/ Asst. Labour Commissioner, Lko & Anr.
1483
was also held that the Government should
acquire the land and pay the market value
of the land to the appellant. Such part of
the decree of the Trial Court was not
challenged by the defendants but as against
the part of the decision of the Trial Court
which resulted in rejection of the claim of
the appellant for allotment of an alternative
land, the appellant preferred an appeal
before the High Court. The High Court not
only dismissed the appeal so filed by the
appellant but proceeded to dismiss the
entire suit with the finding that the plaintiffappellant had failed to prove his ownership
over the suit land inasmuch as he did not
examine the vendor of his sale deed. In the
given circumstances, this Court observed
that when the High Court held that the
appellant was not able to prove his title to
the suit land due to nonexamination of his
vendor, the proper course for the High
Court was to remand the case to the Trial
Court by affording an opportunity to the
appellant to prove his title by adducing
proper evidence in addition to what had
already been adduced. Obviously, this
Court found that for the conclusion
reached by the High Court, a case for retrial was made out particularly when the
Trial Court had otherwise held that the
appellant was owner of the land in dispute
and was entitled to get the encroachment
removed as also to get the market value of
the land. Such cases where retrial is
considered necessary because of any
particular reason and more particularly for
the reason that adequate opportunity of
leading sufficient evidence to a party is
requisite,
stand
at
entirely
different
footings than the cases where evidence has
already been adduced and decision is to be
rendered on appreciation of evidence. It
also remains trite that an order of remand
is not to be passed merely for the purpose
of allowing a

party to fillup the lacuna in its
case. 25.5. It gets perforce reiterated that
the occasion for remand would arise only
when the factual findings of Trial Court are
reversed and a re-trial is considered
necessary by the Appellate Court."

15. It is apposite to consider the fact
that in the instant case the petitioner
themselves was not appearing in the
proceeding
before
the
Controlling
Authority. The same is founded in the
principle of law contained in the legal
maxim which reads as under:

"commodum ex injuria sua nemo
habere debet"; (no party can take undue
advantage of his own wrong).

16. The Apex Court in (2007) 11
SCC 447 (Kusheshwar Prasad Singh Vs.
State of Bihar) considered the said legal
maxim and opined as under: -

"It is a maxim of law, recognized
and established, that no man shall take
advantage of his own wrong; and this
maxim, which is based on elementary
principles, is fully recognized in courts of
law and of equity, and, indeed, admits of
illustration from every branch of legal
procedure."

17. It is settled principle of law that a
man cannot be permitted to take undue and
unfair advantage of his own wrong to gain
favourable interpretation of law. It is sound
principle that he who prevents a thing from
being done shall not avail himself of the
non- performance he has occasioned. To
put it differently, "a wrongdoer ought not to
be permitted to make a profit out of his
own wrong." The petitioner had put in
appearance
and
participated
in
the
proceedings and also filed their written
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
statement.
They
did
not
participate
thereafter. Evidence of the workman was
recorded and several opportunities for cross
examination were afforded but they did not
take advantage of the same. No cogent
reasons is forthcoming for not participating
in the proceeding after filing of the written
statement. This is not a case where the
employer was never served with the
summons or he was not aware of the
proceedings initiated by the employee, but
initially he appeared and participated but
without any reason stopped participating
thereafter.

18. In the peculiar facts of the present
case and also considering the judgments of
the Hon'ble Supreme Court this court is of
the considered opinion that remand of a
case cannot be granted on mere asking of a
party unless he is able to demonstrate that
in the interest of justice the matter should
be remanded. The proceedings were
pending before the Controlling Authority
for
a
substantial
period
of
time.
Undisputedly the petitioner was aware of
the proceedings as he had initially
participated in the same and filed his
written statement. He cannot in the
present circumstances be permitted to
justify his deliberate non-appearance,
where no justifiable cogent reason of the
same,
either
exists
or
could
be
demonstrated before this Court. In the
present case remand order would be
contrary to "interest of justice". The
petitioner in any case cannot be permitted
to take advantage of his own callousness
and
deliberate
omission
in
not
prosecuting
the
case
before
the
Controlling Authority deligently.

19. It the opinion of this Court, the
said legal principle will apply in this matter
also with full force.

20. In light of the above, this Court
does not find any infirmity so as to
interfere with the impugned order in
exercise of powers under Article 226 of the
Constitution of India. Accordingly, the writ
petition is dismissed.

21. Supplementary affidavit filed
today is taken on record.
----------
(2023) 8 ILRA 1484
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.07.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE MANISH KUMAR, J.

Writ-C No. 6190 of 2023

Praveen Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rahul Srivastava

Counsel for the Respondents:
C.S.C.

Criminal
Law
-
Criminal
Procedure
Code,1973 - Section 3(3)(a) - Rule 58 &
76 of the Rules, 2021 - read with Section
3(3)(a) Cr.P.C. - Penalty under Rule 58
can be imposed only upon conviction by
Judicial Magistrate First Class - ADM
(F&R) not competent authority - Order
held without jurisdiction.

Held:
Under
the
U.P.
Minor
Mineral
(Concession) Rules, 2021, penalty under Rule
58 for contravention of Rule 3 can only be
imposed by a Magistrate of the First Class as per
Rule 76. The Additional District Magistrate
(Finance and Revenue), who passed the
impugned order imposing penalty, is not
competent under the law to do so. Therefore,
the impugned orders are without jurisdiction