JUDGMENT
Sadhan Kumar Gupta, J.
1. The writ petition has been filed against purported proceedings initiated by the ‘Controlling Authority’ under the Payment of Gratuity Act, 1972, without having any jurisdiction to initiate the same and also against the purported recovery proceeding initiated by the Certificate Officer against the petitioners for realisation of the amount, so calculated and determined by the said ‘Controlling Authority’. It has been stated in the writ petition that the petitioner No. 1 is a public limited Company incorporated under the Companies Act, 1956. As the said Company sustained continuous loss and financial crisis since 1990; so it was referred to BIFR. The production of the Company came to a halt in May, 2000. As such, salary and wages of the employees could be paid only up to June, 2000. So, the management decided to make some ad hoc payments to the employees in lieu of wages and salaries, as a measure to mitigate the hardship. The Company was registered as a sick Company with the BIFR. The petitioner Nos. 2 and 3 are the officials of the petitioner No. I/Company. But they are not the persons in control over the ultimate affairs of the said Company which has several branches all over India,. i.e. in Delhi, Kanpur, Ludhiana, Mumbai, Chennai, Coimbatore, Kochi and Bangalore. The respondent No. 4 was officiating as an Assistant Manager, Accounts for a considerable time in the petitioner/Company. On 25.9.2000 he submitted resignation letter stating therein that he would not attend office from 26.9.2000. Consequently, he stopped attending the office from that date without handing over the charge to anybody. The respondent No. 4 did not serve the notice, which is required for submitting a resignation letter. Said resignation was never accepted by the management of the petitioner/Company and no formal release order was issued in favour of the respondent No. 4. Subsequently, on 17.10.2000, the respondent No. 4 filed an application before the ‘Controlling Authority’ under the Payment of Gratuity Act, West Bengal i.e. respondent No. 2. Said application was forwarded to the petitioner/Company by the respondent No. 2. Ultimately, the respondent No. 2 passed an ex parte order in respect of the application for payment of gratuity, as filed by the respondent No. 4, wherein it was held that the respondent No. 4 was entitled to a sum of Rs. 23,076/-towards gratuity along with interest @ 10% per annum from the date when the said gratuity amount became due. Said order was forwarded to the petitioner/Company by the respondent No. 2. Subsequently, respondent No. 3 took steps for recovery of the said amount of gratuity, as purportedly determined by the respondent No. 2 and issued a certificate of public demand under the provisions of sections 4 and 6 of the Bengal Public Demands Recovery Act, 1913. By a letter dated 5.3.2000, the Advocate of the petitioner No. l informed the Certificate Officer that since the Company was declared sick, so no execution proceeding could be initiated against the petitioner/Company as per provisions of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. A scheme was prepared by the BIFR under Section 17 of the Act in respect of the petitioner/Company for implementation. Although, those notices were issued in the name of the petitioner No. 1/ Company, suddenly on 16.7.2002 the Certificate Officer issued notices in the names of petitioner Nos. 2 and 3. According to the petitioner Nos. 2 and 3, no notice was ever issued in their names for the purpose of determining the amount of gratuity, allegedly payable to the respondent No. 4. As the petitioner Nos. 2 and 3 are not the persons in control over the affairs of the petitioner/Company, so the notices that were issued in the names of the petitioner Nos. 2 and 3 are liable to be set aside. According to the petitioners, as per provisions of Payment of Gratuity Act, 1972, an ‘Appropriate Government’ in relation to an establishment having branches in more than one State, is the Central Government. As the petitioner/Company has its branches in several States of India, so in respect of the said Company, the ‘Appropriate Government’ in respect of the establishment in question, is the Central Government and as such the respondent No. 2 being an authority under the control of the West Bengal Government cannot have any jurisdiction to entertain the application filed by the respondent No. 4 claiming gratuity and as such the entire proceedings before the respondent No. 2 and the consequent certificate proceedings which were started therefrom, suffers from inherent and patent lack of jurisdiction. As the entire proceedings, which were started by the respondent Nos. 2 and 3 are thoroughly illegal and without jurisdiction, so the petitioners have filed this writ petition praying for setting aside the notices, which were issued in the names of the petitioners by the respondent Nos. 2 and 3.
2. In addition to the writ petition, the petitioners have filed one supplementary affidavit wherein it has been clearly mentioned about the names and addresses of the branches of the petitioner/Company which are situated outside West Bengal. In the said supplementary affidavit copies of the letters, which were written from time to time on behalf of the petitioner/ Company to the respondent Nos. 2 and 3 have also been annexed.
3. The respondent No. 4 Dilip Kumar Dey, the concerned workman, contested the matter by filing an affidavit-in-opposition wherein he has denied the allegations of the petitioners on material points. According to him, as the petitioners did not pay the amount of gratuity which was due to him, consequent upon his submission of resignation to the petitioner/Company, so the respondent No. 2 was perfectly justified in determining the said amount and directing the respondent No. 3 to realise the same as per provisions of Public Demands Recovery Act. The respondent No. 4 further claimed that the respondent No. 3 rightly issued the notice to the petitioners for realisation of the said amount. Against the supplementary affidavit of the petitioners, the respondent No. 4 also filed an affidavit-in-opposition whereby, as it appears that an attempt has been made to deny the claims of the petitioners.
4. It appears that the bone of contention between the parties started from the date of the submitting of the resignation letter by the respondent No. 4. A dispute has been raised, as to whether the said resignation letter has been accepted by the Company or not and whether the respondent No. 4 has been released from the service of the petitioner/Company or not. While the company has claimed that the respondent No. 4, before submitting his resignation letter, did not send the statutory notice to the petitioner/ Company and as such the said resignation letter was not accepted, the respondent No. 4 has claimed that the resignation letter was submitted by observing all the formalities and as such since he is no more in the service of the petitioner/Company, so he is entitled to get gratuity as per provisions of the Act. The petitioners have also claimed that since the petitioner/ Company was declared sick and referred to the BIFR, so it was not proper and legal on the part of the respondent No. 3 to start proceeding for realisation of the gratuity amount from the petitioner/ Company by starting a certificate proceeding as per provisions of Public Demands Recovery Act. This contention has also been disputed by the respondent No. 4.
5. But the main contention of the petitioners is that, the respondent No. 2, i.e. the ‘Controlling Authority’, who started the proceeding for determining the gratuity amount, to which the respondent No. 4 was allegedly entitled, had no jurisdiction to entertain the said matter. As such, the petitioners have claimed that the Certificate Officer who issued the certificate for realisation of the said amount on the basis of the order, passed by the ‘Controlling Authority’, cannot issue the said notice for realisation of the said amount, as the very basis of the order of both the respondent Nos. 2 and 3 suffers from lack of jurisdiction and as such cannot be acted upon. In support of this contention, learned Advocate for the petitioner has drawn my attention to the provisions of Section 3 of the Payment of Gratuity Act, 1972 wherein it has been laid down that the ‘Appropriate Government’ in respect of an establishment having branches in more than one State, is the Central Government. It appears from Section 3 of the said Act that the ‘Controlling Authority’ is appointed by the ‘Appropriate Government’. It appears from Section 7(b) that where there is a dispute with regard to any matter or matters 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 and ‘Controlling Authority’ then after due enquiry and after giving reasonable opportunities to the parties shall determine the question and pass order regarding the payment of gratuity, if any, in favour of the concerned employee. So prima facie it appears that so far as the present case is concerned, there was a dispute and an application was submitted before the ‘Controlling Authority’ for settlement of the said dispute. As per provisions of section 7, the ‘Controlling Authority’ has certainly jurisdiction to consider the said dispute. But we must remember that the ‘Controlling Authority’ is to be appointed by the ‘appropriate Government’ as per provisions of Section 3 of the Act. I have already pointed out that as per provisions of Section 2 of the Act, an ‘Appropriate Government’ means a Central Government where the establishment has branches in more than one State of India. In case of the establishment having its establishment only in the State of West Bengal, then the Appropriate Government would be the State of West Bengal. So far as the present case is concerned, the petitioners have claimed that the petitioner No. I/Company has it branches in the other States of India. Lists, along with the addresses of those branches, have been given in the supplementary affidavit It appears that the respondent No. 4, in his affidavit could not effectively deny such claim of the petitioners. So the fact remains that the petitioner No. 1/Company has it branches established in other States of India also. So, in respect of such an establishment, there cannot be any doubt that the ‘Appropriate Government, will be the ‘Central Government’ and not the State Government. I have already pointed out that the ‘Controlling Authority’ is appointed by the ‘Appropriate Government’ only. So far as this case is concerned, the ‘Controlling Authority’ has been appointed by the State Government and not by the Central Government. In view of the fact that the petitioner No. 1/ Company has its branches in other States of India, so it is incumbent that the ‘Controlling Authority’ must be appointed by the ‘Central Government’. As the ‘Controlling Authority’ i.e. the respondent No. 2 was not appointed by the ‘Central Government’, so it must be held that the said ‘Controlling Authority’ had no jurisdiction whatsoever in considering the dispute in between the parties, so far as the present case is concerned. So, whatever orders have been passed by the said ‘Controlling Authority’ and consequently by the Certificate Officer i.e. respondent No. 3 in this case, must be held to be illegal and without jurisdiction. Learned Advocate for the respondent No. 4 cited decision reported in 1974 LAB IC, Page 968, Martin Burn Ltd. v. T. G. Moorjani and Ors. in support of his contention that proceeding before the ‘Controlling Authority’ for determination of gratuity, cannot be quashed by a writ under Article 26 on jurisdictional ground. I have perused the said decision. It appears that the fact of the said case is totally different. There the question of lack of jurisdiction came in a different way i.e. whether there was any dispute regarding the payment of gratuity to the concerned employee or not or whether the said claimant should be considered to be an ’employee’ within the meaning of the Act or not. But, so far as the present case is concerned, it appears that here in this case, the very basis of the appointment of the ‘Controlling Authority’ has been disputed. I have already pointed out that there cannot be any doubt that the ‘Controlling Authority’ of this case, being appointed by the State Government, cannot have any jurisdiction to settle the dispute in between the parties. So, I have got no hesitation to hold that the said ‘Controlling Authority’ passed orders in respect of the disputes in between the parties without having vested with proper jurisdiction and as such the orders, as passed by him must be held to be illegal and without jurisdiction and consequently the certificate issued by the respondent No. 3 on the basis of the order of the respondent No. 2, cannot also sustain in the eye of law and must be set aside.
6. Considering all these things, the writ petition is allowed on contest. The impugned order being Annexure No. P3 of the petition and the subsequent recovery proceeding being Annexures P5 to P9 are set aside. The respondents are restrained to proceed in any manner whatsoever on the basis of the impugned order being Annexure P3 of this writ application. The respondent No. 4, however, is given liberty to file fresh application, if so advised, before the appropriate authority, as discussed above, for settling his claim in respect of the gratuity amount.
7. Parties shall act on xerox signed copy of this dictated order on the usual undertakings.