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SCA/6368/2011 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6368 of 2011
With
SPECIAL
CIVIL APPLICATION No. 6369 of 2011
To
SPECIAL
CIVIL APPLICATION No. 6442 of 2011
=========================================================
DIVISIONAL
CONTROLLER - Petitioner(s)
Versus
JETHABHAI
GOVABHAI VANKAR - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK C RAWAL for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/05/2011
ORAL
ORDER
1. Heard
learned advocate Mr.H.C.Raval for petitioner – GSRT
Corporation.
2. In
this group of petitions, prayer is made by petitioner –
Corporation in Para.8(B) to quash and set aside the order passed by
Controlling Authority, Mehsana under Payment of Gratuity Act,1972 and
pending admission, stay may be granted against order passed by
Controlling Authority.
3. Therefore,
in this group of petitions, only order passed by Controlling
Authority is under challenge.
4. The
petitioner – Corporation has not filed appeal before appellate
authority under provisions of Payment of Gratuity Act,1972. Present
order which has been passed by Controlling Authority under Section
7(4) of Payment of Gratuity Act,1972. Relevant Section-7(4)(a) to (e)
of Payment of Gratuity Act,1972 is quoted as under :
(4)
(a) If there is any dispute as to the amount of gratuity payable to
an employee under this Act or as to the admissibility of any claim
of, or in relation to, an employee for payment of gratuity, or as to
the person entitled to receive the gratuity, the employer shall
deposit with the controlling authority such amount as he admits to be
payable by him as gratuity.
(b)
Where there is a dispute with regard to any matter or mattes
specified in clause (a), the employer or employee or any other person
raising the dispute may make an application to the controlling
authority for deciding the dispute.
(c)
The controlling authority shall, after due inquiry and after giving
the parties to the dispute a reasonable opportunity of being heard,
determine the matter or matters in dispute and if, as a result of
such inquiry any amount is found to be payable to the employee, the
controlling authority shall direct the employer to pay such amount
or, as the case may be, such amount as reduced by the amount already
deposited by the employer.
(d)
The controlling authority shall pay the amount deposited, including
the excess amount, if any, deposited by the employer, to the person
entitled thereto.
(e)
As soon as may be after a deposit is made under clause (a), the
controlling authority shall pay the amount of the deposit–
(i)
to the applicant where he is the employee; or
(ii)
where the applicant is not the employee, to the [nominee or, as the
case may be, the guardian of such nominee or] heir of the employee if
the controlling authority is satisfied that there is no dispute as to
the right of the applicant to receive the amount of gratuity.”
5. The
petitioner – Corporation is having alternative effective
statutory remedy of appeal against order passed by Controlling
Authority under Section 7(4) of Payment of Gratuity Act,1972 to
prefer appeal to appropriate Government or such other authorities as
may be specified by appropriate Government in this behalf. Therefore,
a separate and independent provision of appeal is made under Section
7(7) of Payment of Gratuity Act,1972, which is also relevant and
quoted as under :
7(7)
Any person aggrieved by an order under sub-section (4) may, within
sixty days from the date of the receipt of the order, prefer an
appeal to the appropriate Government or such other authority as may
be specified by the appropriate Government in this behalf:
Provided
that the appropriate Government or the appellate authority, as the
case may be, may, if it is satisfied that the appellant was prevented
by sufficient cause from preferring the appeal within the said period
of sixty days, extend the said period by a further period of sixty
days:
[Provided
further that no appeal by an employer shall be admitted unless at the
time of preferring the appeal, the appellant either produces a
certificate of the controlling authority to the effect that the
appellant has deposited with him an amount equal to the amount of
gratuity required to be deposited under sub-section (4), or deposits
with the appellate authority such amount.”
6. In
view of the fact that under Section 7(7) of Payment of Gratuity
Act,1972 wherein it is provided further that no appeal by an employer
shall be admitted unless at the time of preferring the appeal, the
appellant either produce a certificate of controlling authority to
the effect that appellant has deposited with him an amount equal to
the amount of gratuity required to be deposited under sub-section(4)
or deposit with the appellant authority such amount.
7. Learned
advocate Mr.Raval has fairly admitted before this Court that against
the order passed by controlling authority which is under challenge,
no appeal is preferred by petitioner – Corporation to appellate
authority under Section 7(7) of Payment of Gratuity Act,1972.
Therefore, according to my opinion, when petitioner –
Corporation is having alternative effective statutory remedy of
appeal under the provisions of Payment of Gratuity Act,1972, then
present group of petitions cannot be entertained by this Court. The
view taken by this Court in SCA No.2839 of 2011, decided on 15.3.2011
in matter of Employees’ Provident Funds Act in case of GSRT
Corporation v. Regional Provident Fund Commissioner & Anr., which
is quoted as under :
” Heard
learned advocate Mr. G.M. Joshi appearing on behalf of petitioner.
Looking
to prayer made in Para 6(A) in this petition, petitioner has
challenged order dated 10th November, 2008 passed by PF
Authority under Section 14B of PF Act as well as decision of Central
Board of Trustees dated 17th February, 2009 directing to
pay interest. Except that, it is made clear looking to prayer, no
other order is under challenge.
Section
14B of PF Act is quoted as under :
“Sec.14B.
Power to recover damages –
Where an employer makes default in the payment of any contribution to
the Fund [ the [Pension] Fund or the Insurance Fund] or in the
transfer of accumulations required to be transferred by him under
sub-section (2) of section 15 [or sub-section (5) of section 17] or
in the payment of any charges payable under any other provision of
this Act or of [any Scheme or Insurance Scheme] or under any of the
conditions specified under section 17, [the Central Provident Fund
Commissioner or such other officer as may be authorised by the
Central Government, by notification in the Official Gazette, in this
behalf] may recover [from the employer by way of penalty such
damages, not exceeding the amount of arrears, as may be specified in
the Scheme :]
[Provided
that before levying and recovering such damages, the employer shall
be given a reasonable opportunity of being heard :]
[Provided
further that the Central Board may reduce
or waive the damages levied under this section in relation to an
establishment which is a sick industrial company and in respect of
which a scheme for rehabilitation has been sanctioned by the Board
for Industrial and Financial Reconstruction established under section
4 of the Sick Industrial Companies (Special Provisions) Act, 1985 91
of 1986), subject to such terms and conditions as may be specified in
the Scheme.]”
Section
7(Q) of PF Act is also quoted as under :
“Sec.7Q
: Interest payable by the employer
– The employer shall be liable to pay simple interest at the
rate of twelve per cent per annum or at such higher rate as may be
specified in the Scheme on any amount due from him under this Act
from the date on which the amount has become so due till the ate of
its actual payment.
Provided
that higher rate of interest specified in the Scheme shall not exceed
the lending rate of interest charged by any scheduled bank.]”
Section
7(I) and 7(O) are also quoted as under :
“Sec.7(I)
– Appeals to Tribunal
– (1) Any person aggrieved by a notification issued by the
Central Government, or an order passed by the Central Government or
any authority, under the proviso to sub-section (3), or sub-section
(4) of section 1, or section 3, or sub-section (1) of section 7A, or
section 7B [except an order rejecting an application for review
referred to in sub-section (5) thereof], or section 7C, or section
14B, may prefer an appeal to a Tribunal against such notification or
order.
(2) Every
appeal under sub-section (1) shall be filed in such form and manner,
within such time and be accompanied by such fees, as may be
prescribed.]
Sec.7(O)
– Deposit of amount due, on filing appeal
– No appeal by the employer shall be entertained by a Tribunal
unless he has deposited with it seventy-five per cent of the amount
due from him as determined
by an officer referred to in section 7A:
Provided
that the Tribunal may, for reasons to be recorded in writing, waive
or reduce the amount to be deposited under this section.]”
It
is necessary to note that order under Section 14B of PF Act dated
10th November, 2008 is not immediately challenged by
petitioner Corporation before higher forum and decision of Central
Board of Trustees dated 17th February, 2009 is also not
challenged in time before higher forum by petitioner and waited for a
period of about more than two years and in other case about more than
one year.
The
petitioner is having alternative remedy against order passed by PF
Authority under Section 14B of PF Act to prefer appeal to Tribunal
and at the time of preferring appeal under Section 7(O), 75% amount
is required to deposit by petitioner from amount due.
In
light of these facts, petitioner is having statutory effective remedy
of appeal challenging aforesaid order dated 10th November,
2008, therefore, this petition is not entertained only on this ground
by this Court.
Recently,
Apex Court has considered this aspect in case of Transport
& Dock Workers Union & Ors. v. Mumbai Port Trust & Anr.
reported in 2011 AIR SCW 220.
The relevant observation is made in Para 14 which is quoted as under
:
“14.
In our opinion the writ petition filed by the appellants should have
been dismissed by the High Court on the ground of existence of an
alternative remedy under the Industrial Disputes Act. It is well
settled that writ jurisdiction is discretionary jurisdiction, and the
discretion should not ordinarily be exercised if there is an
alternative remedy available to the appellant. In this case there was
a clear alternative remedy available to the appellant by raising an
industrial dispute and hence we fail to understand why the High Court
entertained the writ petition.
It seems to us that some High Courts by adopting
an over liberal approach are unnecessarily adding to their load of
arrears instead of observing judicial discipline in following settled
legal principles. However, we may also consider the case on merits.”
The
Jammu and Kashmir High Court has decided issue of alternative remedy
in case of Sanjay
Aggarwal v. Union of India & Ors. reported
in AIR
2011 Jammu and Kashmir 20.
The relevant Para 13 and 17 are quoted as under :
“13. The
Apex Court in Kunga Nima Lepeha v. State of Sikkim, (2010) 4 SCC 513
: (AIR 2010 SC 1671) and Hindustan Petroleum Corporation Ltd. v.
Super Highway Services, (2010) 3 SCC 321 : (2010 AIR SCW 1781) has
held that when alternate remedy is available that should be exhausted
at the first instance.
17. The
Apex Court in State Pollution Control Board, Orissa v. Jagannath
Store Crusher & others, Civil Appeal No.4958/2010, decided on
6-7-2010 (reported in 2010 (2) Orissa LR 522 (SC)), held that when
efficacious remedy is available, then appropriate orders should be
passed facilitating availing of such remedy. It is apt to reproduce
last para of the judgment herein :
“At
the rehearing, the appellant herein shall be free to raise the
objection to the maintainability of the writ petition on the ground
that the respondent herein did not avail the statutory remedy of
appeal under Section 31 of the Air Act. If the High Court accepts the
objection that an effective alternative remedy is available to the
writ petitioners, then it should pass appropriate order facilitating
availing of such remedy.””
In
view of observations made by Apex Court as well as made by Jammu and
Kashmir High Court as referred above and considering fact that more
than two years have passed from order dated 10th
November, 2008 under Section 14B of PF Act and more than one year has
passed from decision of Central Board of Trustees dated 17th
February, 2009, therefore,
it is not a fit case where this Court can exercise
extra-ordinary jurisdiction and this Court can use discretionary
powers for entertaining this petition. Therefore, this petition is
not entertained by this Court only on the ground that petitioner is
having alternative effective statutory remedy under provisions of PF
Act.
In
view of above observation, present petition is disposed of without
expressing any opinion on merits as not entertained by this Court.”
8. In
view of aforesaid view taken by this Court, not entertaining petition
filed by GSRT Corporation only on the ground that Corporation is
having remedy of appeal under Section 7(I) of PF Act. Therefore, this
Court has not entertained petition filed by petitioner.
9. The
order which has been passed by this Court in SCA No.2839/2011 dated
15.3.2011 was challenged by GSRT Corporation before the Division
Bench of this Court by way of LPA No.590 of 2011 wherein Division
Bench of this Court has also dismissed appeal preferred by GSRT
Corporation by order dated 6.4.2011, which is quoted as under :
“1. We
have heard learned counsel Mr. G.M. Joshi for the appellant.
2. Intra-court
this Letters Patent Appeal has been filed challenging judgment dated
15.3.2011 passed in Special Civil Application No.2839 of 2011, by
which the writ petition filed by the appellant has been dismissed on
the ground of availability of statutory alternative remedy under the
provisions of the Provident Fund Act.
3. The
learned counsel for the appellant has urged that he has applied for
waiver before the Central Board of Trustees under second proviso of
Section 14-B of the P.F. Act. This second proviso applies to SICK
Industrial Unit and not to the appellant who has not yet been
declared as ‘SICK’. Therefore, the application filed by the appellant
before the Central Board of Trustees is not maintainable.
4. The
Hon’ble Apex Court time in number has said that, ‘when there is
statutory remedy available, High Court should not exercise its
jurisdiction under Article 226 of the Constitution of India’.
5. For
the aforesaid reasons, we do not find any illegality in the order
passed by the learned Single Judge. This appeal fails and is
according dismissed.”
10. Similar
view has been taken by Larger Bench of Apex Court in case of Sadhna
Lodh v. National Insurance Co. Ltd. & Anr., reported in 2003 (3)
SCC 524. Relevant observations of aforesaid decision are in Para.6, 7
and 8 which are quoted as under :
“6. The
right of appeal is a statutory right and where the law provides
remedy by filing an appeal on limited grounds, the grounds of
challenge cannot be enlarged by filing a petition under Article
226/227 of the Constitution on the premise that the insurer has
limited grounds available for challenging the award given by the
Tribunal. Section 149(2) of the Act limits the insurer to file an
appeal on those enumerated grounds and the appeal being a product of
the statute it is not open to an insurer to take any plea other than
those provided under Section 149(2) of the Act (see National
Insurance Co. Ltd, Chandigarh vs. Nicolletta Rohtagi and others
2002(7) SCC 456). This being the legal position, the petition filed
under Article 227 of the Constitution by the insurer was wholly
misconceived. Where a statutory right to file an appeal has been
provided for, it is not open to High Court to entertain a petition
under Article 227 of the Constitution. Even if where a remedy by way
of an appeal has not been provided for against the order and judgment
of a District Judge, the remedy available to the aggrieved person is
to file a revision before the High Court under Section 115 of the
Code of Civil Procedure. Where remedy for filing a revision before
the High Court under Section 115 of CPC has been expressly barred by
a State enactment, only in such case a petition under Article 227 of
the Constitution would lie and not under Article 226 of the
Constitution. As a matter of an illustration, where a trial Court in
a civil suit refused to grant temporary injunction and an appeal
against refusal to grant injunction has been rejected, and a State
enactment has barred the remedy of filing revision under Section 115
C.P.C., in such a situation a writ petition under Article 227 would
lie and not under Article 226 of the Constitution. Thus, where the
State legislature has barred a remedy of filing a revision petition
before the High Court under Section 115 C.P.C., no petition under
Article 226 of the Constitution would lie for the reason that a mere
wrong decision without anything more is not enough to attract
jurisdiction of High Court under Article 226 of the Constitution.
7. The
supervisory jurisdiction conferred on the High Courts under Article
227 of the Constitution is confined only to see whether an inferior
court or Tribunal has proceeded within its parameters and not to
correct an error apparent on the face of the record, much less of an
error of law. In exercising the supervisory power under Article 227
of the Constitution, the High Court does not act as an Appellate
Court or the Tribunal. It is also not permissible to a High Court on
a petition filed under Article 227 of the Constitution to review or
re-weigh the evidence upon which the inferior court or Tribunal
purports to have passed the order or to correct errors of law in the
decision.
8. For
the aforesaid reasons, we are of the view that since the insurer has
a remedy by filling an appeal before the High Court, the High Court
ought not to have entertained the petition under Article 226/227 of
the Constitution and for that reason, the judgment and order under
challenge deserves to be set aside. We, accordingly, set aside the
judgment and order under appeal. The appeal is allowed. There shall
be no order as to costs. However, it would be open to the insurer to
file an appeal if it is permissible under the law.”
11. In
view of aforesaid decisions of this Court which has been confirmed by
Division Bench of this Court in LPA and Apex Court, as referred
above, in facts of this case undisputedly order passed by controlling
authority under Section 7(4) of Payment of Gratuity Act is not
challenged before appellate authority under Section 7(7) by
petitioner. Therefore, only on that ground, present group of
petitions are not entertained by this Court. Accordingly, this group
of petitions are disposed of without expressing any opinion on
merits.
[
H.K.RATHOD, J. ]
(vipul)
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