Jammu & Kashmir High Court - Srinagar Bench
J&K State Road Transport Corporation ... vs Nazir Ahmad Mir And Another on 13 September, 2021
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Supplementary - 1 Causelist
S. No. 89
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1174/2021
CM(3953/2021), CM(4068/2021), CM(4069/2021)
c/w
WP(C) 1170/2021, WP(C) 1172/2021, WP(C) 1173/2021
WP(C) 1175/2021, WP(C) 1176/2021, WP(C) 1177/2021
WP(C) 1178/2021, WP(C) 1179/2021, WP(C) 1180/2021
WP(C) 1181/2021, WP(C) 1182/2021, WP(C) 1183/2021
J&K State Road Transport Corporation and another
... Petitioner/Appellant(s)
Through: Mr. Altaf Haqani, Sr. Advocate with Mr. Shakir Haqani, Advocate
V/s
Nazir Ahmad Mir and another
... Respondent(s)
Through: Mr. Zahoor Jan, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
13-09-2021 Impugned in these petitions filed under Article 226 of the Constitution of India by the J&K State Road Transport Corporation (hereafter SRTC for short), are orders passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (Assistant Labour Commissioner) Srinagar, whereby the applications filed by the respondents for payment of different amounts of gratuity have been allowed.
The impugned orders of the Controlling Authority have been challenged by the petitioner corporation primarily on the ground that the Controlling Authority was not competent to determine the rate of DA payable to the respondent employees of the corporation at the time of their retirement and, therefore, the Controlling Authority exceeded its jurisdiction and applied the rate of DA, which otherwise was not applicable to the employees of the corporation.
WP(C) 1174/2021 Page 2 of 3Mr. Zahoor Jan, learned counsel representing the respondent employees of the corporation, submits that these petitions are not maintainable, for, under sub-section 7 of section 7 of the Payment of Gratuity Act, 2010, any person aggrieved by an order made under sub- section 4 may, within 60 days from the date of receipt of the order, prefer an appeal to the appropriate Government or such authority as may be specified by the appropriate Government in this behalf. He, therefore, submits that in the face of availability of statutory remedy of appeal which is equally efficacious, the writ petition against the impugned orders of the Controlling Authority cannot be maintained.
Having heard learned counsel for the parties and perused the record, I am of the view that in the face of availability of statutory remedy of appeal provided under sub section 7 of section 7 of the Payment of Gratuity Act, 1972, these writ petitions are not maintainable.
The petitioners have hastened to file these petitions before this court bypassing the statutory remedy of appeal only with a view to avoid making pre-deposit as is mandated by 2nd Proviso of Sub Rule 7 of Section 7 of the Act. For better appreciation, sub section 7 of section 7 of the payment of Gratuity Act 1972 is reproduced hereunder:
(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 subsection (4), or deposits with the appellate authority such amount.] WP(C) 1174/2021 Page 3 of 3 In view of the mechanism of appeal provided under the Act, which of course is subject to making of pre-deposit of the entire amount of gratuity before the Controlling Authority or the appellate authority, there is no point in entertaining these petitions. I would have agreed with the plea of Mr. Haqani, learned senior counsel, that since the orders impugned are without jurisdiction, as such, there is no bar for entertaining the writ petition under Article 226 of the constitution of India, provided he could make out a case of impugned orders being without jurisdiction. His contention that the controlling authority was not competent in law to sanction DA is devoid of merit and cannot be accepted. The controlling authority has only determined the amount of gratuity payable in terms of section 7 of the Act and in the process has applied the applicable rate of DA. This does not render the impugned orders, by any stretch of reasoning, without jurisdiction. True it is, this court may entertain writ petition under Article 226 of the constitution of India despite availability of alternative remedy provided the order impugned is either without jurisdiction or passed in violation of principles of natural justice or where the vires of legislative enactment or statutory rules is under challenge. None of the aforesaid grounds exist in these petitions and the same are therefore held to be not maintainable.
In the aforesaid circumstances, all these writ petitions are dismissed leaving it open to the petitioner corporation to avail statutory remedy provided under the Payment of Gratuity Act, 1972. In the event the petitioner corporation approaches the appellate authority, the time spent in prosecuting these petitions shall be eschewed while considering the limitation.
Disposed of.
(SANJEEV KUMAR) JUDGE Srinagar 13-09-2021 N Ahmad NISSAR A BHAT 2021.09.14 14:18 I attest to the accuracy and integrity of this document