ORDER
Dr. Mukundakam Sharma, J.
1. This petition is directed against the order dt. 28.1.2000 passed by the Appellate Authority under the Payment of Gratuity Act dismissing the appeal filed by the petitioner and also against the order dt. 8.1.98 passed by the Controller Authority under the Payment of Gratuity Act allowing the application filed by respondent No. 2 herein under Section 4 of the Payment of Gratuity Act and holding that the respondent No. 2 is entitled to receive payment of gratuity of an amount of Rs. 39,937.50 to be paid along with interest @ 10% from 9.4.91 till the date of actual payment of the said amount.
2. The respondent No. 2 herein filed an application under Section 4 of the Payment of Gratuity Act, 1972 (hereinafter referred to as the Act) and in the said application he prayed that he should be paid Rs. 48,535/- as his gratuity amount with interest. It was stated in the said application that respondent No. 2 was appointed by the petitioner on 25.9.1978 and he was retrenched from service on 9.4.1991. The said application was, however, filled beyond the period of limitation and accordingly an application was also filed by the respondent no. 2 praying for condensation of delay. The Controller Authority by his order dt. 17.9.93 rejected the said application on the ground that respondent No. 2 had not given appropriate reasons for explaining the delay in filing the application. A appeal was filed as against the aforesaid order before the Appellate Authority and the said authority by his order dt. 6.5.94 allowed the appeal and set aside the order dt. 17.9.93 passed by the said Authority with a direction to the Controller Authority with a direction to the Controller Authority to consider all relevant issues. On remand by the Appellant Authority, the matter was taken up by the Controller Authority and the management filed its reply (written statement). In the said written statement, it was pleaded that the service of respondent No. 2 was terminated due to loss caused to the management of an amount of Rs. 4,90,145/- due to the misconduct of respondent No. 2.
3. The Controller Authority on the basis of the pleadings of the parties framed the following issue for consideration:-
1. Whether Sh. Rakesh Kumar Girotra is entitled for the payment of gratuity under the provisions of the payment of Gratuity Act. If, yes, then what directions should be issued as necessary?
4. However, the Controller Authority before entering into merit of the claim also dealt with the issue regarding condensation of delay in filing the application and on consideration of the facts, condoned the delay in filing the application and thereafter proceeded to examine merit of the claim. On consideration of the materials on record, it was found by the Controller Authority that the services of respondent No. 2 had been terminated by the management on a charge but without holding any departmental enquiry. In the light of the aforesaid findings, it was held that as the services of the respondent No. 2 were terminated by the management without instituting and conducting a departmental enquiry against him, therefore, stopping of gratuity amount only on the basis of a charge, was not proper. Accordingly, it was ordered by the Authority that the respondent No. 2 is entitled for receiving payment of gratuity amount of Rs. 39,937.50 along within interest being simple interest @ 10% from 9.4.91 till the date of actual payment of the gratuity amount.
5. Being aggrieved by the aforesaid order passed by the Controller Authority, the petitioner herein filed an appeal before the Appellate Authority, on 18.3.98 under Section 7(7) of the Act. During the course of hearing of the said appeal several grounds were urged by the petitioner, inter alia, that the Controller Authority failed to appreciate correctly the provisions of Section 4(6)(b) of the Act whereunder the petitioner is entitled to forfeit the alleged gratuity. It was also alleged that the respondent no. 2 did not challenge the validity of the termination letter dt. 9.4.91 in any court of law and, therefore, the Authority had no jurisdiction to hold that the said order is without jurisdiction as the same was passed without instituting and holding a departmental enquiry. During the course of arguments of the appeal it was also submitted on behalf of the petitioner that the Controller Authority had no jurisdiction to entertain the matter in view of provisions of Section 2 of the Act. According to the petitioner, jurisdiction if any to entertain the mater was with the Central Government and that the State Government lacks inherit jurisdiction to entertain and decide the claim as the petitioner company is having its branches in more than one State. The aforesaid plea with regard to want of jurisdiction was objected to by the respondent No. 2 before the Appellate Authority on the ground that the aforesaid plea could not be raised at the time of arguments particularly when the same was not raised either before the Controller Authority or in the appeal petition filed by the petitioner. The Appellate Authority considered the aforesaid plea with regard to want of jurisdiction and held that since the question of jurisdiction had been raised by the petitioner only at the stage of arguments, the same cannot be allowed to be raised as the parties could contest the said issue before the Authority only on the basis of the issues raised in the pleadings. It was held by the order dt. 28.1.2000 that the as the management/petitioner did not raise the issue of want of jurisdiction in their pleadings, therefore, it could not raise that issue at the later stage and accordingly the said issue was decided against the management/petitioner.
6. The present writ petition is filed by the petitioner challenging the aforesaid orders passed by the Appellate Authority as also by the Controller Authority praying that the said orders be set aside and the matter should be directed to be taken up and considered by the appropriate Government, namely, the Cental Government, which only has the jurisdiction to try the same under the provisions of the Act.
7. Counsel appearing for the petitioner submitted that since the issue raised goes to the root of the matter and relates to inherent lack of jurisdiction of the State Government to decide the matter therefore, the said plea could be raised at any stage as it relates to inherent lack of jurisdiction. In support of the said contention counsel relied upon the decisions of the Supreme Court in HIRA LAL PATNI Vs. SRI KALI NATH reported in AIR 1962 SC. 1999, CHANDRIKA MISIR AND ANOTHER Vs. BHAIYALAL , RATTAN LAL SHARMA Vs. MANAGING COMMITTEE, DR. HARI RAM (CO-EDUCATION) HIGHER SECONDARY SCHOOL AND OTHERS reported in 1993 Lab. I.C. 1808 and in the decision of UNION OF INDIA AND OTHERS Vs. BALESHWAR SINGH reported in (1924) 29 Administrative Tribunals Cases 77.
8. Counsel appearing for respondent No. 2, however, submitted that although the application under Section 4 of the Act was filed by respondent No. 2, yet in the written statement filed or during the course of adducing the evidence on record, no objection was taken by the petitioner/management with regard to jurisdiction of the said authority to decide the said matter. It was also submitted that, in fact, an appeal was filed by the petitioner itself before the Appellate Authority seeking for setting aside of the order of the Controller Authority and, therefore, the petitioner could not be allowed to raise such plea at the stage or arguments of the appeal particularly when the principles of waiver and estoppel are also applicable to the facts and circumstances of the present case. It was contended that the petitioner submitted to the jurisdiction of the State Government without raising any plea of want of jurisdiction at the earliest stage and, therefore, the said plea raised at the time of arguments of the appeal was rightly rejected by the Appellate Authority. In support of his contention, the counsel relied upon the decision of the Supreme Court in STATE OF HIMACHAL PRADESH VS. GITA RAM . Counsel also relied upon the decision in Hira Lal’s case (supra) in support of his contention that an objection with regard to jurisdiction of a court could be waived and that the said principle has also received statutory recognition by enactment like Section 21 of the Code of Civil Procedure.
9. In the light of the aforesaid submissions of the counsel appearing for the parties and the documents placed before me and also having regard to the decisions rendered by the Supreme Court, I proceed to dispose of the present petition.
10. Section 2 of the Act is the definition clause. Section 2(a) defines the expression “appropriate Government” in the following manner:-
2(a) “appropriate Government” means:-
(i) in relation to an establishment-
(a) belonging to, or under the control of the Central Government,
(b) having branches in more than one State
(c) of a factory belonging to, or under the control of Central Government,
(d) of a major port, mine, oil field or railway company, the Central Government,
(ii) in any case, the State Government;
“Controlling Authority” is defined in the following manner:-
“Controlling Authority” means an authority appointed by the appropriate Government under Section 3.
11. The application was filed by the respondent No. 2 under the provisions of Section 4 of the Act. Sub-Section (1) thereof states that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years:-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death of disablement due to accident or disease:
12. There is an explanation provided to Sub-section (1) of Section 4 by incorporating Sub-section (6) in the said Act, which provides as follows:
(6) Notwithstanding anything contained in sub-section (1)-
(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so cause.
(b) the gratuity payable to an employee {may be wholly or partially forfeited}-
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
13. It is contended before me, on the basis of the documents placed on record, that the petitioner/management has branches in more than one State and, therefore, so far the petitioner is concerned, in terms of definition of Section 2(a)(1)(b) of the Act, the appropriate Government in the case of the petitioner would be the Central Government. The aforesaid position could not be disputed by the respondent no. 2 herein. Thus, it is amply proved on the basis of the documents placed on record that the petitioner/management has branches in more than one State and, therefore, the appropriate Government in the case of the petitioner for the purpose of applicability of Payment of Gratuity Act would be the Central Government. Therefore, so far the petitioner is concerned, the appropriate Government being the Central Government, the Controller Authority would also be an authority appointed by the Cental Government under Section 3 of the Act. The Controller Authority before whom the application was filed by respondent No. 2 under Section 4 of the Act was the Controller Authority appointed by the State Government and not by the Central Government. This is the undisputed position so far the facts of the present case are concerned, which is also corroborated by the documents placed on record. The plea of respondent no. 2 is that although in the present case the appropriate Government would be the Cental Government even then as no objection was taken concerning jurisdiction of the authority to entertain and decide the matter at the earliest stage and on the other hand as the petitioner itself had submitted to the jurisdiction of the said authority as also to the Appellate Authority by filing an appeal, the objection with regard to jurisdiction of the Controller Authority appointed by the State Government stood waived and, therefore, both the Controller Authority as also the Appellate Authority rightly exercised their jurisdiction to deal with the matter.
14. In the case relied upon by the counsel appearing for the petitioner in the State of Himachal Pradesh (supra), it was held by the Supreme Court that a Sessions Court even after specification would remain a Sessions Court and a trial can be held there. In the said case a Magistrate committed the case in which chargesheet was filed for an offences under Section 376 of I.P.C. and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate committed the case to the Sessions Court who was specified as a Special Court to try the offence under the Act. After trial, the said Sessions Judge convicted the respondent for the offence under Section 376 and sentenced him to undergo imprisonment. A Single Judge of the High Court set aside the said conviction and sentence on the technical ground i.e. the trial Judge had no jurisdiction as he was only the Special Court specified under the Act. The Supreme Court following the decision in GANGULA ASHOK VS. STATE OF ANDHRA PRADESH held that a Sessions Court, even after such specification would remain a Sessions Court and a trial could be held there and, therefore, the judgment of the High Court was set aside and the case was remanded back for decision on merit. In my considered opinion, the said case is clearly distinguishable on facts and the ratio of the said decision is not applicable to the facts of the present case.
15. In Hira Lal’s case (supra), on which reliance was placed by counsel appearing for both the parties, it was held by the Supreme Court that it is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case which goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. It was further held that, on the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has bene given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. In the said decision the Supreme Court also referred to the decision of the Privy Council in LEDGARD VS. BULL reported in 13 Ind. App. 134 (P.C.). The decision of the Privy Council in the said case is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction. In the said case by consent of the parties, the case was transferred to the court of the District Judge for convenience of trial and in that context it was laid down by the Privy Council that as the court in which the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction on a court which was incompetent to try the suit. After referring to the aforesaid decision of the Privy Council, the Supreme Court, in the case of Hira Lal (supra) went on to hold that competent of a court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. It was further held that, on the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.
16. In VIKAS MOtorS LTD. VS. DR. P.K. JAIN , on which reliance was placed by the counsel appearing for the petitioner, it was held by the Supreme Court that a party is estopped from raising a plea that the District Forum had no territorial jurisdiction to entertain the complaint and pass orders, after participating in the proceedings and being satisfied with the verdict regarding jurisdiction. There cannot be any dispute with regard to the aforesaid proposition laid down by the Supreme Court, which is also in parity with the decision of the Supreme Court in the case of Hira Lal’s case (supra) as the question of jurisdiction involved in the said case was concerning territorial jurisdiction. In Chandrika Misirs’s case (supra) and also in the case of Ratan Lal Sharma (supra) the Supreme Court has held that if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi-judicial bodies, is raised before the High Court in the writ proceedings for the first time and the plea goes to the root of the question and is based on admitted and uncontroverter facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the Court, it is only desirable that a litigation should not be shut out from raising such plea which goes to the root of the lis involved.
17. Therefore, the legal principle which is established is that if the plea raised goes to the root of the question and concerns inherent lack of jurisdiction of the court deciding the matter, such plea could be allowed to be raised even at a later stage, for it goes to very root of the matter. Such a plea concerning inherent lack of jurisdiction of court to decide the matter could be raised before the High Court in a writ jurisdiction, for the first time, and such a plea is required to be entertained to do justice amongst the parties. On the other hand, if the plea raised concerns lack of territorial or pecuniary jurisdiction, the same could be waived by a party by submitting to its jurisdiction and by not raising at the earlier stage. Therefore, it is necessary to apply the aforesaid settled principles of law to the facts of the present case. In this case, as delineated above, it is established that the appropriate Government under the present case is the Central Government as the petitioner-management has branches in more than one State, and not the State Government. The Controller Authority of the State Government has exercised its jurisdiction in the present case on the basis of the application filed by the respondent No. 2. On an appropriate interpretation of the provisions of Section 2 of the Act it is established that the said authority appointed by the State Government has no jurisdiction to entertain and decide the matter. Therefore, the said authority lacks inherent jurisdiction to entertain and try this case and it is not a case of either want of pecuniary jurisdiction or territorial jurisdiction, which could be waived. Therefore, in the facts of the present case, it is the Controller Authority appointed by the Central Government, who would have jurisdiction to entertain and decide this mater and not the State Government. Consequently, it is also held that the Controller Authority in which the aforesaid application under Section 4 of the Act was filed and by whom it was entertained and a case was instituted on the basis thereof, was entirely lacking in jurisdiction and it was incompetent to try and decide the same. Therefore, whatever orders are passed in the said proceeding or in the subsequent proceeding arising out of it, namely – in the appeal were null and void as consent of parties could not operate to confer jurisdiction on the said authority, which was incompetent to try the aforesaid proceeding.
18. In my considered opinion, the decisions rendered by the Supreme Court in the cases of Hira Lal and Rattan Lal Sharma (supra) squarely apply to the facts and circumstances of the present case and, therefore, following the ratio of the aforesaid decisions, the writ petition is allowed and the impugned orders of the Appellate Authority as also of the Controlling Authority are set aside and quashed. The application, which was filed by the respondent No. 2 before the Controller Authority appointed by the State Government would stand transferred to the Controlling Authority appointed by the Central Government having jurisdiction in the matter namely – Controlling Authority appointed by the Central Government, Office of the Regional Labour Commissioner, Curzon Road Barracks, Kasturba Gandhi Marg, New Delhi-110001 and the same shall be proceeded with by the said authority in accordance with law allowing the petitioner management to file its written statement. Since delay in filing the said application as already condoned, no plea with regard to delay could be raised by the petitioner before the Controller Authority and such a plea even if raised, shall not be entertained by the said authority, who would receive the written statement filed by the petitioner and also receive evidence, if any adduced by the parties and shall decide the matter at the earliest since the matter is old and is long pending. In terms of the aforesaid observations and directions, the writ petition stands disposed of.