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3. At the outset Mr. L.K. Gupta, learned senior advocate appearing on behalf of the said respondent submitted that as the controlling authority or adjudicatory authority and the appellate authority had been empowered under the Act to deal with all issues and the alternative remedy provided therein was efficacious, the writ petition was not maintainable. Relying on the provisions of Order XIV Rule 2(2) of the Code of Civil Procedure (for short 'the Code"), as well as on the Judgment of the Apex Court in Uttar Pradesh State Bridge Corporation Limited v. Uttar Pradesh Rajya Setu Nigam S. Karmachari Sangh , it was submitted that as the order impugned had not been challenged on the ground that the controlling authority lacked jurisdiction or there was failure of compliance of the principles of natural justice or any of the provisions of the Act was ultra vires, the issue regarding the availability of alternative remedy should be decided at the threshold. Referring to the facts it was submitted that the said respondent, now a superannuated employee of FCI, was an employee of the Government of West Bengal (for short 'the State'). On 1st August, 1967 under instruction of the State he was sent on deputation to FCI. The said respondent continuously worked on deputation till 1st July, 1984 when he was absorbed in the FCI. On account of gratuity he received a sum of Rs. 4,878/- from the State. On 30th June, 2000, on his retirement, the FCI paid a sum of Rs. 22,519.20 as gratuity. As according to the said respondent, the quantum of gratuity paid by FCI was less than what he was entitled to receive, on 7th May, 2003 he disputed the same by submitting Form "I" under Section 7(4) of the Act read with Rule 7(i) of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as the Rules). Since FCI did not respond, the said respondent on 3rd June, 2003 submitted his application in Form 'N' under 10(i) of the Rules. Thereafter, the controlling authority initiated proceedings. Notice was issued to FCI. By consent of the parties delay in filing the application was condoned. Parties were heard. On 31st December, 2004 the controlling authority passed the order under challenge determining a sum of Rs 1,15,024.55 including interest payable as gratuity by the FCI to the said respondent. According to the said respondent, under Section 7(7) of the Act order impugned was an appealable order. Appeal was to be filed within sixty days from the date of the order, which under the proviso was extendable by a further period of sixty days. Relying on the Judgments of the Supreme Court in Titaghar Paper Mills Co. Ltd. and Anr. v. State of Orissa and Anr. , Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors. , Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. , State of Goa and Ors. v. Leukoplast (India) Ltd. etc. , Bhagwant Kishore Sud v. Income Tax Appellate Tribunal, Chandigarh and in Star Paper Mills Ltd. v. State of Uttar Pradesh and Ors. reported in (2006)7RC 488, it was submitted that the Act, a welfare legislation and a complete code, had laid down in detail the procedure and remedies with provision for preferring appeal. As the writ jurisdiction was discretionary, Courts should loathe to entertain a writ petition challenging an order, passed by a statutory authority, against which statute itself provided a forum for preferring appeal. Though existence of alternative remedy did not take away the jurisdiction of the writ Court, Courts would not exercise its discretion to entertain a writ petition and instead should relegate the party to the statutory appellate authority. However, there were exceptions. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. and in Harbanslal Sahania and Anr. v. Indian Oil Corporation Ltd. and Ors. the Apex Court had held that self-imposed restrictions were not applicable where the order under challenge was without jurisdiction, or where the vires of an enactment was under challenge, or where there had been a violation of the principles of natural justice, or where the petition was for the enforcement of fundamental rights. The absence of jurisdiction of the controlling authority had been faultily argued by the FCI and any of those exceptions did not exist in the present case. Referring to circular No. 47 dated 21st November, 1996 (hereinafter referred to as the said circular) it was submitted that FCI had admitted that Food Corporation of India (Death-cum-Retirement Gratuity) Regulations 1967 (for short 'the Regulations') became redundant and required to be rescinded. The said circular, recognized that the benefit of prior service before joining FCI would be counted as contemplated in Section 4(5) of the Act which gave the right to an employee to secure better terms of gratuity under any award, agreement or contract with the employer. Therefore, FCI could not deny the employee the benefit of counting prior service before joining FCI which was a right recognized by Section 4(5) of the Act. In this regard reliance was placed on the Judgments in Eastern Coal Fields Ltd. v. Regional Labour Commissioner (Central), Calcutta and Ors. reported in 1981(2) CLJ 478 and Ramilal Chimanlal Sharma v. Elphinstone Spinning and Weaving Mill Co. Ltd. and Anr. reported in 1984 Lab IC 1703. Moreover, the FCI in its circular had itself recognized the counting of past service for the purpose of calculation of gratuity on the basis of Section 4(5) of the Act. Further, in view of the Judgment of the Apex Court in Central Inland Water Transport Corporation Ltd. and Anr. such Regulations, laying down terms and conditions of service was part of service contract. Hence, such additional benefit was contractually conferred and also came under the purview of Section 4(5) of the Act. Referring to the Regulation it was submitted that Explanation (2) to Regulation 4 governed the cases other than those of absorbed depulationist and, therefore, did not apply to the said respondent. The petitioner could not raise the plea that the employee did not deposit the amount of gratuity received from the state since FCI in its letter dated 4th March, 1994 had waived the provision which had been referred to by the controlling authority in the order impugned. Relying on the Judgment of the Apex Court in Lalchoo Mal v. Radhya Shyam it was submitted even if the right of FCI to get refund as contained in Explanation 4 to Regulation 4 of the Regulations could be elevated to status of statutory right, such right could be waived if it was procedural. It was contended that under Section 7(7) of the Act an appeal from an order of controlling authority could be filed within 60 days extendable upto a further period of 60 days. The controlling authority had passed its order on 31st December, 2004. Accordingly, the time to file appeal had expired 2nd June, 2005. FCI chose not to file appeal but filed a writ petition affirmed on 11th March, 2005. The limitation for filing statutory appeal had thus set in during the pendency of the writ petition. Referring to the Judgment of the Supreme Court in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. it was submitted since the petitioner had voluntarily abstained from filing a statutory appeal, the plea of limitation as a ground for entertaining this writ petition could not be accepted. Further, one who had defaulted in complying with the statutory provision could not claim a better right over those who had complied. Since the vires of Section 7(7) of the Act was not under challenge, the submission of the petitioner regarding hardship caused by pre-deposit of the amount of gratuity as condition precedent under the said sub-section could not be entertained.

4. Mr. K.K. Maitra and Mr. R.N. Das learned senior advocates appearing on behalf of the petitioner in W.P. No. 5354(W) of 2005 submitted that the controlling authority was not competent to embark upon adjudication of the purported claim and the order passed was an erroneous application of facts and the relevant provisions of law. The said respondent was appointed by the State and had worked till 30th June, 1984. The state paid him a sum of Rs. 4878/- as gratuity which was received by him. After joining FCI, the said respondent was absorbed on 1st July, 1984 and continued to be an employee of the FCI from that date till his superannuation on 30th June, 2000. At the time of superannuating from FCI the said respondent was paid gratuity amounting to Rs. 22,519.20 for the service rendered with the FCI for the period from 1st July, 1984 till 30th June, 2000. The said respondent without making any application before the FCI preferred an application before controlling authority for payment of gratuity of Rs. 1,15,024.55 taking into account the entire period of service he had rendered both under the State and the FCI. In the context of the said facts, the order of the controlling authority for payment of gratuity amounting to Rs. 1,15,024.55 under the Act was wholly illegal and invalid as the question of payment of gratuity to a deputationist for the period of service he had rendered under the State before joining the service under FCI was not covered under the provisions of the Act. Regarding the preliminary objection as to the maintainability of the writ petition, it was submitted that unless entire factual matrix of the case and the relevant provisions of law concerning the facts were laid after exchange of affidavits, the point of maintainability could not be decided merely as a question of law. Invocation of Order XIV Rule 2 of the Code could not be made in isolation of Order XIV Rule 1 as only after material proposition affirmed by one party and denied by the other, the issues of facts and law could be framed. In the backdrop of such facts and law, the jurisdiction of the Court had to be decided. Regarding alternative remedy submission was made that it had neither been a rule of law and nor of compulsion but a matter of discretion and convenience of the Court. It was never considered to be a bar to the maintainability of the writ petition. In an appropriate case, in spite of the availability of alternative remedy, High Court could still exercise its writ jurisdiction in at least three contingencies - i) where the writ petition sought enforcement of fundamental right, ii) where there was a failure of compliance of the principles of natural justice and iii) where the orders or proceedings were wholly without jurisdiction or where the vires of the Act was challenged. As the petitioner was denied a reasonable opportunity of being heard and the controlling authority completely lacked jurisdiction in the matter of entertaining, adjudicating and deciding the claim of the said respondent under the provisions of the Act, the case came under the two exceptions. Further, the Apex Court in U.P. State Bridge Corporation Limited (supra) held that the objection regarding the maintainability of the writ petition on the ground of existence of alternative remedy was only in the nature of a demurer. Since the controlling authority lacked jurisdiction, alternative remedy would not be a bar. Besides the definition of continuous service' under Section 2A(1) of the Act nowhere contemplated the service rendered by such employee under any other employment prior to his employment under the employer wherefrom the employee superannuated. Referring to Section 7(1) and (4) it was submitted that the existence of a dispute was a pre-requisite for making an application to the controlling authority and then only the controlling authority could assume jurisdiction which in the instant case was conspicuously absent. Therefore, since assumption of jurisdiction by the controlling authority was illegal and without jurisdiction, his decision was a nullity. In this regard reliance was placed on the Judgment of the Apex Court in Union of India v. Tarachand Gupta & Bros. . Regarding efficacy of the alternative remedy under Section 7(7) of the Act, relying on the Judgment of the Supreme Court in Collector of Customs and Excise, Cochin and Ors. v. A.S. Bava , it was argued that the pre-deposit of the amount determined by the controlling authority and obtaining certificate could not but be said to stultify the right of appeal. Besides, though the Act was a welfare legislation, it could not be a one way traffic and Courts must look into the public interest since payment of money was involved. Moreover, there was no adherence to the procedure postulaled in Rule 7(1) and 10 of the Rules. On facts it was submitted that a circular dated 19th March, 1984 was issued with a view to absorb the West Bengal State Government deputationists in the regular service of FCI. In the said circular it was specifically provided that the State Government employees who had opted for permanent absorption in the service of the Corporation would be treated as direct recruits and would be subject to the terms and conditions as prescribed in FCI (Staff) Regulations, 1971. It was further stipulated in the said circular that for the service rendered prior, to the date of absorption in FCI, the FCI would not bear any liability in respect of the service rendered prior to the date of permanent absorption in the Corporation Regarding the Regulations it was submitted that those were promulgated in exercise of the powers conferred by Section 45 of the Food Corporation of India Act, 1964 with the previous sanction of the Central Government for payment of gratuity to all employees of the FCI regularly appointed under Regulation 7(1) of the Food Corporation of India (Staff) Regulation, 1971. Regulation 4 of the said Regulation provided the circumstances under which gratuity would be payable. Explanation 2 to the said Regulation 4 stipulated that service rendered in the Government or any public or private undertaking by an employee before his joining service of the FCI might be declared by the Managing Director to be deemed in whole or in part to be qualifying service provided that there was no break in service before joining the corporation. Explanation 4 to the said Regulation 4 also stipulated that qualifying service should also include service rendered in the Government after completion of 18 years of age by an absorbed deputationist provided that the amount of death cum-retirement gratuity received by him, if any, from the Government in respect of service rendered by him in the Government was deposited with the FCI immediately on receipt of such gratuity after his absorption. From the provisions contained in the Regulations and circular No. 21 of 1984 it was obvious that in order to be entitled to claim gratuity for the period of service rendered under the State of West Bengal, a deputationist was required to give option and to deposit with the FCI the amount of gratuity immediately on receipt from the State after his absorption in the FCI. Unless these essential conditions were complied with, an employee could not be said to be entitled to the benefit of continuous service under the State Government for claiming gratuity for the period so spent under the State Government for claiming gratuity for the period so spent under the state. However, in the instant case, the said respondent was ineligible as he had failed to deposit the gratuity with the FCI immediately after its receipt from the state. Though the Regulation became redundant after the enactment of the Act, a circular No. 47 of 1996 was issued on 21st November, 1996 whereby it was provided that future settlements of payment of gratuity would be under the provisions of the Payment of Gratuity Act, 1972. It was enumerated that as per the said provisions favourable benefits should continue to be extended to the existing employees covered under the said regulations to the extent applicable. Circular No. 47 also stipulated that action had also been initiated to approach the Central Government for issuing notification to rescind the 1967 Regulations. Thus, it was obvious that in the matter of extending favourable benefits so far as the existing employee of FCI were concerned the Regulations still occupy the field. Accordingly, better terms under the said regulations could be made available only when the conditions as provided in the Explanations 2 and 4 of the Regulations were complied with or acted upon. In the instant case since no award was given or agreement or contract as enumerated under Section 4(5) of the Act was entered into, the principles of law contained in the Judgment of the Bombay High Court were not applicable and better terms could only be extended to an existing staff of the FCI if the condition stipulated in the Explanations, 2 and 4 to Regulation 4 of the Regulation were complied with. Therefore, as the controlling authority, a creature of the statute, had to act within the parameters of the statute and the Rules framed thereunder and was devoid of jurisdiction, he had no authority to pass the order impugned. Thus, order impugned was liable to be interfered with in the writ jurisdiction and the plea of an alternative remedy could not stand in the way of entertainment and adjudication of the writ petition.

14. The keenly contested issue, in my view, though not pleaded in the grounds, is whether the controlling authority had the jurisdiction to decide the dispute. It appears from the annexures that since the said respondent was aggrieved by the amount received as gratuity from the FCI, he had disputed the same by submitting form T under Section 7(4)(b) of the Act read with Rule 7(1) of the Rules. Thereafter, as FCI failed to take action, the said respondent submitted his application before the controlling authority in Form 'N' under the relevant rules. It may be noted in the year 1967 FCI had introduced the Regulation. Though it was stipulated in 2(e) of the Regulations that it did not apply to the employees covered under the provisions of the Payment of Gratuity Act, 1972 and under Explanation 2 of the Regulation service rendered in the government by an employee before joining FCI might be "declared" by the Managing Director to be deemed to be wholly or partly to be qualifying service, yet Explanation 4, introduced in the year 1982, "also" included the past service in the government as "qualified service" provided lie had deposited with the FCI the amount of gratuity immediately on its receipt from the government. The question is whether the FCI developed any procedure to receive the amount received by the said respondent on account of gratuity from the state. The answer is in the negative as it is revealed from a letter dated 4th March, 1994 issued by the Deputy Manager (Personal) for Senior Regional Manager addressed to all D.M., FCI, Deputy Manager, Assistant Manager FCI which was an exhibit before the controlling authority and recorded in the order impugned "that it has also been decided that the amount of gratuity received by the employee concerned from A.G.W.B. during their tenure under the Government of West Bengal should be entered into the service book of the respective employees and the same should be deducted at the time of final settlement of gratuity on retirement on expiry during the service in this organization" (pages 36 and 37 of the writ petition) it is, therefore, evident from the letter dated 4th March, 1994 that FCI had done away with or had waived the stipulation contained in Explanation 2 of the Regulation and had accepted the continuity of service of said respondent. It is surprising that neither in the petition there is any denial about the existence of the said letter nor is it challenged on the ground of perversity. Further, Circular No. 47 of 1996 dated 21st November, 1996, (pages 50 and 51 of the writ petition) for "Rescinding of FCI (DCRG) Regulation and settlement of gratuity claims under provisos contained in Payment of Gratuity Act, 1972" had notified that "consequently all future settlements of payment of gratuity will be under the provisions of the Payment of Gratuity Act as amended from time to time." It appears from the circular that the Regulation including 2(e) was mode redundant and referring to Section 4(5) of the Act it was notified that "As per the said provision favourable benefits shall continue to be extended to the existing employees covered under the FCI (DCRG) Regulations to the extent applicable" which shall include "Counting of prior service before joining the Corporation"- thus putting a further stamp of approval on the continuity of service of the said respondent. Though it was sought to be argued on behalf of the petitioner that the Assistant Manager acting on behalf of the Manager had no authority to issue the circular dated 21st November, 1996, to circular or notification has been annexed to the petition by FCI, the petitioner, demonstrating that circular No. 47 of 1996 was rescinded or withdrawn. It only emphasized the fact that FCI had accepted the right of the said respondent to receive better terms under Section 4(5) of the Act.