{"id":41866,"date":"2011-05-12T00:00:00","date_gmt":"2011-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/divisional-vs-jethabhai-on-12-may-2011"},"modified":"2017-06-09T10:59:48","modified_gmt":"2017-06-09T05:29:48","slug":"divisional-vs-jethabhai-on-12-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/divisional-vs-jethabhai-on-12-may-2011","title":{"rendered":"Divisional vs Jethabhai on 12 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Divisional vs Jethabhai on 12 May, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/6368\/2011\t 12\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 6368 of 2011\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 6369 of 2011\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 6442 of 2011\n \n \n=========================================================\n\n \n\nDIVISIONAL\nCONTROLLER - Petitioner(s)\n \n\nVersus\n \n\nJETHABHAI\nGOVABHAI VANKAR - Respondent(s)\n \n\n=========================================================\n\n \n\nAppearance\n: \nMR\nHARDIK C RAWAL for\nPetitioner(s) : 1, \nNone for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/05\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.H.C.Raval for petitioner – GSRT
\nCorporation.\n<\/p>\n
2.\tIn
\nthis group of petitions, prayer is made by petitioner –
\nCorporation in Para.8(B) to quash and set aside the order passed by
\nControlling Authority, Mehsana under Payment of Gratuity Act,1972 and
\npending admission, stay may be granted against order passed by
\nControlling Authority.\n<\/p>\n
3.\tTherefore,
\nin this group of petitions, only order passed by Controlling
\nAuthority is under challenge.\n<\/p>\n
4.\tThe
\npetitioner – Corporation has not filed appeal before appellate
\nauthority under provisions of Payment of Gratuity Act,1972. Present
\norder which has been passed by Controlling Authority under Section
\n7(4) of Payment of Gratuity Act,1972. Relevant Section-7(4)(a) to (e)
\nof  Payment of Gratuity Act,1972 is quoted as under :\n<\/p>\n
(4)<\/span><\/p>\n
(a) If there is any dispute as to the amount of gratuity payable to
\nan employee under this Act or as to the admissibility of any claim
\nof, or in relation to, an employee for payment of gratuity, or as to
\nthe person entitled to receive the gratuity, the employer shall
\ndeposit with the controlling authority such amount as he admits to be
\npayable by him as gratuity.\n<\/p>\n
(b)
\nWhere there is a dispute with regard to any matter or mattes
\nspecified in clause (a), the employer or employee or any other person
\nraising the dispute may make an application to the controlling
\nauthority for deciding the dispute.\n<\/p>\n
(c)
\nThe controlling authority shall, after due inquiry and after giving
\nthe parties to the dispute a reasonable opportunity of being heard,
\ndetermine the matter or matters in dispute and if, as a result of
\nsuch inquiry any amount is found to be payable to the employee, the
\ncontrolling authority shall direct the employer to pay such amount
\nor, as the case may be, such amount as reduced by the amount already
\ndeposited by the employer.\n<\/p>\n
(d)
\nThe controlling authority shall pay the amount deposited, including
\nthe excess amount, if any, deposited by the employer, to the person
\nentitled thereto.\n<\/p>\n
(e)
\nAs soon as may be after a deposit is made under clause (a), the
\ncontrolling authority shall pay the amount of the deposit–\n<\/p>\n
 (i)
\nto the applicant where he is the employee; or<\/p>\n
 (ii)
\nwhere the applicant is not the employee, to the [nominee or, as the
\ncase may be, the guardian of such nominee or] heir of the employee if
\nthe controlling authority is satisfied that there is no dispute as to
\nthe right of the applicant to receive the amount of gratuity.”\n<\/p>\n
5.\tThe
\npetitioner – Corporation is having alternative effective
\nstatutory remedy of appeal against order passed by Controlling
\nAuthority under Section 7(4) of  Payment of Gratuity Act,1972 to
\nprefer appeal to appropriate Government or such other authorities as
\nmay be specified by appropriate Government in this behalf. Therefore,
\na separate and independent provision of appeal is made under Section
\n7(7) of  Payment of Gratuity Act,1972, which is also relevant and
\nquoted as under :\n<\/p>\n
7(7)
\nAny person aggrieved by an order under sub-section (4) may, within
\nsixty days from the date of the receipt of the order, prefer an
\nappeal to the appropriate Government or such other authority as may
\nbe specified by the appropriate Government in this behalf:\n<\/p>\n
Provided
\nthat the appropriate Government or the appellate authority, as the
\ncase may be, may, if it is satisfied that the appellant was prevented
\nby sufficient cause from preferring the appeal within the said period
\nof sixty days, extend the said period by a further period of sixty
\ndays:\n<\/p>\n
[Provided
\nfurther that no appeal by an employer shall be admitted unless at the
\ntime of preferring the appeal, the appellant either produces a
\ncertificate of the controlling authority to the effect that the
\nappellant has deposited with him an amount equal to the amount of
\ngratuity required to be deposited under sub-section (4), or deposits
\nwith the appellate authority such amount.”\n<\/p>\n
6.\tIn
\nview of the fact that under Section 7(7) of  Payment of Gratuity
\nAct,1972 wherein it is provided further that no appeal by an employer
\nshall be admitted unless at the time of preferring the appeal, the
\nappellant either produce a certificate of controlling authority to
\nthe effect that appellant has deposited with him an amount equal to
\nthe amount of gratuity required to be deposited under sub-section(4)
\nor deposit with the appellant authority such amount.\n<\/p>\n
7.\tLearned
\nadvocate Mr.Raval has fairly admitted before this Court that against
\nthe order passed by controlling authority which is under challenge,
\nno appeal is preferred by petitioner – Corporation to appellate
\nauthority under Section 7(7) of  Payment of Gratuity Act,1972.
\nTherefore, according to my opinion, when petitioner –
\nCorporation is having alternative effective statutory remedy of
\nappeal under the provisions of  Payment of Gratuity Act,1972, then
\npresent group of petitions cannot be entertained by this Court. The
\nview taken by this Court in SCA No.2839 of 2011, decided on 15.3.2011
\nin matter of Employees’ Provident Funds Act in case of GSRT
\nCorporation v. Regional Provident Fund Commissioner & Anr.,<\/a> which
\nis quoted as under :\n<\/p>\n
”\tHeard
\nlearned advocate Mr. G.M. Joshi appearing on behalf of petitioner.\n<\/p>\n
\tLooking
\nto prayer made in Para 6(A) in this petition, petitioner has
\nchallenged order dated 10th November, 2008 passed by PF
\nAuthority under Section 14B of PF Act as well as decision of Central
\nBoard of Trustees dated 17th February, 2009 directing to
\npay interest. Except that, it is made clear looking to prayer, no
\nother order is under challenge.\n<\/p>\n
\tSection
\n14B of PF Act is quoted as under :\n<\/p>\n
“Sec.14B.\n<\/p>\n
Power to recover damages –\n<\/p>\n
Where an employer makes default in the payment of any contribution to
\nthe Fund [ the [Pension] Fund or the Insurance Fund] or in the
\ntransfer of accumulations required to be transferred by him under
\nsub-section (2) of section 15 [or sub-section (5) of section 17] or
\nin the payment of any charges payable under any other provision of
\nthis Act or of [any Scheme or Insurance Scheme] or under any of the
\nconditions specified under section 17, [the Central Provident Fund
\nCommissioner or such other officer as may be authorised by the
\nCentral Government, by notification in the Official Gazette, in this
\nbehalf] may recover [from the employer by way of penalty such
\ndamages, not exceeding the amount of arrears, as may be specified in
\nthe Scheme :]<\/p>\n
\t[Provided
\nthat before levying and recovering such damages, the employer shall
\nbe given a reasonable opportunity of being heard :]<\/p>\n
\t[Provided
\nfurther that the Central Board may reduce
\nor waive the damages levied under this section in relation to an
\nestablishment which is a sick industrial company and in respect of
\nwhich a scheme for rehabilitation has been sanctioned by the Board
\nfor Industrial and Financial Reconstruction established under section
\n4 of the Sick Industrial Companies (Special Provisions) Act, 1985 91
\nof 1986), subject to such terms and conditions as may be specified in
\nthe Scheme.]”\n<\/p>\n
\tSection
\n7(Q) of PF Act is also quoted as under :\n<\/p>\n
“Sec.7Q
\n:\t\tInterest payable by the employer\n<\/p>\n
– The employer shall be liable to pay simple interest at the
\nrate of twelve per cent per annum or at such higher rate as may be
\nspecified in the Scheme on any amount due from him under this Act
\nfrom the date on which the amount has become so due till the ate of
\nits actual payment.\n<\/p>\n
\tProvided
\nthat higher rate of interest specified in the Scheme shall not exceed
\nthe lending rate of interest charged by any scheduled bank.]”\n<\/p>\n
\tSection
\n7(I) and 7(O) are also quoted as under :\n<\/p>\n
“Sec.7(I)\n<\/p>\n
– Appeals to Tribunal\n<\/p>\n
– (1) Any person aggrieved by a notification issued by the
\nCentral Government, or an order passed by the Central Government or
\nany authority, under the proviso to sub-section (3), or sub-section
\n(4) of section 1, or section 3, or sub-section (1) of section 7A, or
\nsection 7B [except an order rejecting an application for review
\nreferred to in sub-section (5) thereof], or section 7C, or section
\n14B, may prefer an appeal to a Tribunal against such notification or
\norder.\n<\/p>\n
\t(2)\tEvery
\nappeal under sub-section (1) shall be filed in such form and manner,
\nwithin such time and be accompanied by such fees, as may be
\nprescribed.]<\/p>\n
Sec.7(O)\n<\/p>\n
– Deposit of amount due, on filing appeal\n<\/p>\n
– No appeal by the employer shall be entertained by a Tribunal
\nunless he has deposited with it seventy-five per cent of the amount
\ndue from him as determined
\nby an officer referred to in section 7A:\n<\/p>\n
\tProvided
\nthat the Tribunal may, for reasons to be recorded in writing, waive
\nor reduce the amount to be deposited under this section.]”\n<\/p>\n
\tIt
\nis necessary to note that order under Section 14B of PF Act dated
\n10th November, 2008 is not immediately challenged by
\npetitioner Corporation before higher forum and decision of Central
\nBoard of Trustees dated 17th February, 2009 is also not
\nchallenged in time before higher forum by petitioner and waited for a
\nperiod of about more than two years and in other case about more than
\none year.\n<\/p>\n
\tThe
\npetitioner is having alternative remedy against order passed by PF
\nAuthority under Section 14B of PF Act to prefer appeal to Tribunal
\nand at the time of preferring appeal under Section 7(O), 75% amount
\nis required to deposit by petitioner from amount due.\n<\/p>\n
\tIn
\nlight of these facts, petitioner is having statutory effective remedy
\nof appeal challenging aforesaid order dated 10th November,
\n2008, therefore, this petition is not entertained only on this ground
\nby this Court.\n<\/p>\n
\tRecently,
\nApex Court has considered this aspect in case of Transport
\n& Dock Workers Union & Ors. v. Mumbai Port Trust & Anr.<\/a>
\nreported in 2011 AIR SCW 220.\n<\/p>\n
The relevant observation is made in Para 14 which is quoted as under
\n:\n<\/p>\n
“14.\n<\/p>\n
 In our opinion the writ petition filed by the appellants should have
\nbeen dismissed by the High Court on the ground of existence of an
\nalternative remedy under the Industrial Disputes Act. It is well
\nsettled that writ jurisdiction is discretionary jurisdiction, and the
\ndiscretion should not ordinarily be exercised if there is an
\nalternative remedy available to the appellant. In this case there was
\na clear alternative remedy available to the appellant by raising an
\nindustrial dispute and hence we fail to understand why the High Court
\nentertained the writ petition.\n<\/p>\n
It seems to us that some High Courts by adopting
\nan over liberal approach are unnecessarily adding to their load of
\narrears instead of observing judicial discipline in following settled
\nlegal principles. However, we may also consider the case on merits.”\n<\/p>\n
\tThe
\nJammu and Kashmir High Court has decided issue of alternative remedy
\nin case of Sanjay
\nAggarwal v. Union of India & Ors. reported
\nin AIR
\n2011 Jammu and Kashmir 20.\n<\/p>\n
The relevant Para 13 and 17 are quoted as under :\n<\/p>\n
“13.\t\tThe
\nApex Court in Kunga Nima Lepeha v. State of Sikkim, (2010) 4 SCC 513
\n: (AIR 2010 SC 1671) and Hindustan Petroleum Corporation Ltd. v.
\nSuper Highway Services, (2010) 3 SCC 321 : (2010 AIR SCW 1781) has
\nheld that when alternate remedy is available that should be exhausted
\nat the first instance.\n<\/p>\n
17.\t\tThe
\nApex Court in State Pollution Control Board, Orissa v. Jagannath
\nStore Crusher & others<\/a>, Civil Appeal No.4958\/2010, decided on
\n6-7-2010 (reported in 2010 (2) Orissa LR 522 (SC)), held that when
\nefficacious remedy is available, then appropriate orders should be
\npassed facilitating availing of such remedy. It is apt to reproduce
\nlast para of the judgment herein :\n<\/p>\n
“At
\nthe rehearing, the appellant herein shall be free to raise the
\nobjection to the maintainability of the writ petition on the ground
\nthat the respondent herein did not avail the statutory remedy of
\nappeal under Section 31 of the Air Act. If the High Court accepts the
\nobjection that an effective alternative remedy is available to the
\nwrit petitioners, then it should pass appropriate order facilitating
\navailing of such remedy.””\n<\/p>\n
\tIn
\nview of observations made by Apex Court as well as made by Jammu and
\nKashmir High Court as referred above and considering fact that more
\nthan two years have passed from order dated 10th
\nNovember, 2008 under Section 14B of PF Act and more than one year has
\npassed from decision of Central Board of Trustees dated 17th
\nFebruary, 2009, therefore,
\nit is not a fit case where this Court can exercise
\nextra-ordinary jurisdiction and this Court can use discretionary
\npowers for entertaining this petition. Therefore, this petition is
\nnot entertained by this Court only on the ground that petitioner is
\nhaving alternative effective statutory remedy under provisions of PF
\nAct.\n<\/p>\n
\tIn
\nview of above observation, present petition is disposed of without
\nexpressing any opinion on merits as not entertained by this Court.”\n<\/p>\n
8.\tIn
\nview of aforesaid view taken by this Court, not entertaining petition
\nfiled by GSRT Corporation only on the ground that Corporation is
\nhaving remedy of appeal under Section 7(I) of PF Act. Therefore, this
\nCourt has not entertained petition filed by petitioner.\n<\/p>\n
9.\tThe
\norder which has been passed by this Court in SCA No.2839\/2011 dated
\n15.3.2011 was challenged by GSRT Corporation before the Division
\nBench of this Court by way of LPA No.590 of 2011 wherein Division
\nBench of this Court has also dismissed appeal preferred by GSRT
\nCorporation by order dated 6.4.2011, which is quoted as under :\n<\/p>\n
“1.\tWe
\nhave heard learned counsel Mr. G.M. Joshi for the appellant.\n<\/p>\n
2.\tIntra-court
\nthis Letters Patent Appeal has been filed challenging judgment dated
\n15.3.2011 passed in Special Civil Application No.2839 of 2011, by
\nwhich the writ petition filed by the appellant has been dismissed on
\nthe ground of availability of statutory alternative remedy under the
\nprovisions of the Provident Fund Act.\n<\/p>\n
3.\tThe
\nlearned counsel for the appellant has urged that he has applied for
\nwaiver before the Central Board of Trustees under second proviso of
\nSection  14-B of the P.F. Act. This second proviso applies to SICK
\nIndustrial Unit and not to the appellant who has not yet been
\ndeclared as ‘SICK’. Therefore, the application filed by the appellant
\nbefore the Central Board of Trustees is not maintainable.\n<\/p>\n
4.\tThe
\nHon’ble Apex Court time in number has said  that, ‘when there is
\nstatutory remedy available, High Court should not exercise its
\njurisdiction under Article  226 of the Constitution of India’.\n<\/p>\n
5.\tFor
\nthe aforesaid reasons, we do not find any illegality in the order
\npassed by the learned Single Judge.  This appeal fails and is
\naccording dismissed.”\n<\/p>\n
10.\tSimilar
\nview has been taken by Larger Bench of Apex Court in case of Sadhna
\nLodh v. National Insurance Co. Ltd. & Anr.,<\/a> reported in 2003 (3)
\nSCC 524. Relevant observations of aforesaid decision are in Para.6, 7
\nand 8 which are quoted as under :\n<\/p>\n
“6.\tThe
\nright of appeal is a statutory right and where the law provides
\nremedy by filing  an appeal on limited grounds, the grounds of
\nchallenge cannot be enlarged by filing a petition under Article
\n226\/227 of the Constitution on the premise that the insurer has
\nlimited grounds available for challenging the award given by the
\nTribunal. Section 149(2) of the Act limits the insurer to file an
\nappeal on those enumerated grounds and the appeal being a product of
\nthe statute it is not open to an insurer to take any plea other than
\nthose provided under Section 149(2) of the Act (see National
\nInsurance Co. Ltd, Chandigarh vs. Nicolletta Rohtagi and others<\/a>
\n2002(7) SCC 456). This being the legal position, the petition filed
\nunder Article 227 of the Constitution by the insurer was wholly
\nmisconceived. Where a statutory right to file an appeal has been
\nprovided for, it is not open to High Court to entertain a petition
\nunder Article 227 of the Constitution. Even if where a remedy by way
\nof an appeal has not been provided for against the order and judgment
\nof a District Judge, the remedy available to the aggrieved person is
\nto file a revision before the High Court under Section 115 of the
\nCode of Civil Procedure. Where remedy for filing a revision before
\nthe High Court under Section 115 of CPC has been expressly barred by
\na State enactment, only in such case a petition under Article 227 of
\nthe Constitution would lie and not under Article 226 of the
\nConstitution.\tAs a matter of an illustration, where a trial Court in
\na civil suit refused to grant temporary injunction and an appeal
\nagainst refusal to grant injunction has been rejected, and a State
\nenactment has barred the remedy of filing revision under Section 115
\nC.P.C., in such a situation a writ petition under Article 227   would
\nlie\t and not under Article 226 of the Constitution.\t Thus, where the
\nState legislature has barred a remedy of filing a revision petition
\nbefore the High Court under Section 115 C.P.C., no petition under
\nArticle 226 of the Constitution would lie for the reason that a mere
\nwrong decision without anything more is not enough to attract
\njurisdiction of High Court under Article 226 of the Constitution.\n<\/p>\n
7.\tThe
\nsupervisory jurisdiction conferred on the High Courts under Article
\n227 of the Constitution is confined only to see whether an inferior
\ncourt or Tribunal has proceeded within its parameters and not to
\ncorrect an error apparent on the face of the record, much less of an
\nerror of law. In exercising the supervisory power under Article 227
\nof the Constitution, the High Court does not act as an Appellate
\nCourt or the Tribunal.  It is also not permissible to a High Court on
\na petition filed under Article 227 of the Constitution to review or
\nre-weigh the evidence upon which the inferior court or Tribunal
\npurports  to have passed the order or to correct errors of law in the
\ndecision.\n<\/p>\n
8.\tFor
\nthe aforesaid reasons, we are of the view that since the insurer has
\na remedy by filling an appeal before the High Court, the High Court
\nought not to have entertained the petition under Article 226\/227 of
\nthe Constitution and for that reason, the judgment and order under
\nchallenge deserves to be set aside.\t We, accordingly, set aside the
\njudgment and order under appeal.  The appeal is allowed. There shall
\nbe no order as to costs.  However, it would be open to the insurer to
\nfile an appeal if it is permissible under the law.”\n<\/p>\n
11.\tIn
\nview of aforesaid decisions of this Court which has been confirmed by
\nDivision Bench of this Court in LPA and Apex Court, as referred
\nabove, in facts of this case undisputedly order passed by controlling
\nauthority under Section 7(4) of Payment of Gratuity Act is not
\nchallenged before appellate authority under Section 7(7) by
\npetitioner. Therefore, only on that ground, present group of
\npetitions are not entertained by this Court. Accordingly, this group
\nof petitions are disposed of without expressing any opinion on
\nmerits.\n<\/p>\n
[
\nH.K.RATHOD, J. ]<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Divisional vs Jethabhai on 12 May, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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 ========================================================= […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-41866","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDivisional vs Jethabhai on 12 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/divisional-vs-jethabhai-on-12-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Divisional vs Jethabhai on 12 May, 2011 - 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