Ram Krishna vs Secretary Krishni And 3 Others
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Allahabad High Court

Ram Krishna vs Secretary Krishni And 3 Others on 11 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 Neutral Citation No. - 2025:AHC:111871-DB
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 574 of 2025
 

 
Appellant :- Ram Krishna
 
Respondent :- Secretary Krishni and 3 others
 
Counsel for Appellant :- Amit Kumar Mishra
 
Counsel for Respondent :- Adarsh Bhushan
 

 
Hon'ble Arun Bhansali,Chief Justice
 
Hon'ble Kshitij Shailendra,J.
 

 

1. Heard Shri Amit Kumar Mishra, learned counsel for the appellant, Shri Adarsh Bhushan, learned counsel for all the respondents and perused the material available on record.

2. The present special appeal is directed against an interim order dated 06.05.2025, whereby the learned Single Judge, while entertaining Writ C No.14071 of 2025 (Secretary Krishi Utpadan Mandi Samiti Rura Kanpur Dehat vs Ram Krishna and 3 others), has stayed the award dated 29.03.2025 passed by the Controlling Authority, Payment of Gratuity Act, 1972 (in short 'the Act') in PG Case No. 52 of 2024 (Ram Krishna vs. Director, Rajya Krishi Utpadan Mandi Parishad, Lucknow and others).

3. Brief facts of the case are that the appellant was appointed as ad-hoc Safai Karamchari on 01.08.1986 in the office of Krishi Utpadan Mandi Samiti, Rura, Kanpur Dehat (in short the 'Samiti'). He worked in the said capacity upto 14.03.1991 and his services were regularized by order dated 15.03.1991 passed by the competent authority. After attaining the age of superannuation on 31.07.2023, the appellant retired from the post and was relieved. He claimed gratuity to the tune of Rs.12,96,480/- on completion of service for a period of 36 years 11 months and 29 days, however, he was paid a sum of Rs.9,86,960/- as gratuity by an order dated 04.11.2023.

4. The appellant filed a representation dated 30.03.2024 before the authority praying for an additional sum of Rs.3,09,520/- as gratuity on the plea that he had continuously worked on the post w.e.f. 01.08.1986 to 14.03.1991, i.e. including the period prior to his regularization, however, the said period was not taken into consideration while making payment of gratuity. The representation was rejected by the authority by an order dated 08.04.2024.

5. Being aggrieved by rejection of his claim for additional amount of gratuity, the appellant filed PG Case No.52 of 2024 before the Controlling Authority under the Act. The claim was disputed by the respondents on various grounds such as non-applicability of provisions of the Act and assigning reasons for not taking into consideration the period w.e.f. 01.08.1986 to 14.03.1991 terming the same as ad hoc services and, as such, not countable towards payment of gratuity.

6. After considering the evidence led before it and the rival contentions advanced, the Controlling Authority, by order dated 29.03.2025, awarded a sum of Rs.3,09,520/- as additional gratuity alongwith 10% interest to the appellant w.e.f. 01.09.2023.

7. Challenging the award dated 29.03.2025, the respondents filed the aforesaid Writ C No.14071 of 2025, in which, learned Single Judge has passed interim order dated 06.05.2025, which has been impugned in the present appeal.

8. Learned counsel for the appellant submits that the learned Single Judge has erred in entertaining the writ petition despite the fact that plea of availability of an alternative remedy of preferring a statutory appeal under Section 7(7) of the Act was specifically raised by the appellant in opposition of the writ petition at the very first stage. It is further urged that the only reason assigned in the impugned interim order is pendency of matter before Hon'ble Supreme Court pursuant to a reference made by order dated 21.01.2020 passed in Dhansai Sahu vs. State of Chhattisgarh and others: (2020) 19 SCC 808. It is submitted that, under identical facts and circumstances, various other writ petitions were dismissed by the same Bench on account of availability of alternative remedy of appeal which fact stands reflected from Annexure-2 to the affidavit supporting stay application, which is a compilation of copies of orders passed on 19.03.2025 and 25.04.2025, respectively in Writ C Nos.7910 of 2025 and 5739 of 2025, however, a different view has been taken in the present matter.

9. Further submission has been made that pendency of reference before the Larger Bench in the case of Dhansai Sahu (supra) has no relevance qua the controversy involved in the present matter, inasmuch as, the same had arisen from a situation where a subsequent Bench of Hon'ble Supreme Court doubted the correctness of decision of an earlier Bench in Netram Sahu vs. State of Chhattisgarh and another: (2018) 5 SCC 430, in different set of the facts.

10. Elaborating his submissions, learned counsel for the appellant submits that in the case of Netram Sahu (supra), the concerned incumbent was appointed as a daily wager in Water Resources Department of the State of Chhattisgarh and, after considering the length of service rendered by him, a direction was issued to pay him the gratuity amount as determined by the Controlling Authority. It is further urged that when correctness of decision in Netram Sahu (supra) was doubted in the subsequent judgement in Dhansai Sahu (supra), reference was made to a previous decision of Co-ordinate Bench of Hon'ble Supreme Court in BSNL vs. Teja Singh: (2020) 19 SCC 811, wherein the employee concerned was a daily rated labour with a Central Government owned Corporation. It is, alternatively, submitted that though reference was made to examine the applicability of the provisions of Act vis-a-vis entitlement of such a labour corresponding to the length of services rendered by him, the previous decision in Netram Sahu (supra) was not stayed and, therefore, mere pendency of reference to the Larger Bench cannot constitute a sufficient ground for passing an interim order in the present case.

11. Learned counsel for the appellant has further referred to a judgement dated 19.07.2016 pronounced by learned Single Judge of this Court in Writ C No.24841 of 2016 wherein a detailed consideration was made qua an employee working in Krishi Utpadan Mandi Parishad and he was found entitled to get gratuity. The judgement has been affirmed by the Hon'ble Supreme Court while dismissing the Special Leave to Appeal (C) No.34308 of 2016 by order dated 06.02.2017.

12. Per contra, learned counsel for the respondents submits that the learned Single Judge has followed various interim orders passed on identical lines on earlier occasions and, therefore, since parity has been maintained by the learned Single Judge, no error has been committed by him so as to call for any interference in the present appeal. Reference has been made to orders dated 14.02.2025, 04.04.2025 and 05.04.2025 passed respectively in Writ C Nos.38531 of 2024, 9121 of 2025 and 9268 of 2025.

13. On merits, it is submitted by the respondents' counsel that services rendered by the appellant over a period when he did not acquire status of a regularized employee, cannot be counted for the purposes of payment of gratuity and once gratuity to the tune of Rs.9,86,960/- has been paid to him after making computations based upon length of his continuous service in regularized capacity, claim for additional gratuity based upon the services rendered prior to 15.03.1991, was not tenable in the eyes of law.

14. It is further urged that once the Hon'ble Supreme Court, while making reference to a Larger Bench in Dhansai Sahu (supra), has clearly observed that the previous Co-ordinate Bench in Netram Sahu (supra) did not consider the service regulations before issuing a direction for releasing amount of gratuity, so long as the question of law is pending consideration before the Hon'ble Supreme Court in the matter referred to the Larger Bench, in case the amount is released in favour of the appellant or is recovered from the respondents, even in the event of success of the department in the referred matter, the respondents would not be able to recover the amount from the appellant and, therefore, the learned Single Judge has not erred in passing interim order during pendency of the writ petition.

15. On the aspect of availability of an alternative remedy of appeal, Shri Adarsh Bhushan submits that, in certain matters, appeals were filed, however, same were dismissed by the appellate authority and since pure question of law is involved in the present case, filing of appeal which is bound to be dismissed, would be an exercise in futility and, therefore, learned Single Judge has not erred in entertaining the writ petition despite availability of remedy of appeal.

16. We have considered the submissions made and perused the material available on record.

17. We notice two significant aspects of this matter. One is the fact that order/award under challenge before the writ court is appelable under Section 7(7) of the Act and the other is the effect of pending reference in the case of Dhansai Sahu (supra).

18. It has come on record vide Annexure-2 to the stay application filed in the present appeal that various other identical writ petitions were dismissed by the learned Single Judge on the ground of availability of alternative remedy of statutory appeal under Section 7(7) of the Act, however, the writ petition giving rise to the present appeal has not only been entertained but also an interim order has been passed staying the award. The Court has also to see the effect of pendency of reference before Hon'ble Supreme Court in Dhansai Sahu (supra).

19. A bare perusal of the award of the Controlling Authority, impugned before the writ court, would reveal that the same was passed after considering the stand taken in the written statement filed by the respondents and after dealing with the oral and documentary evidence lead before the authority. Concerned service regulations were also considered by the Authority and reliance placed by the respondents based upon certain decisions of this Court in writ petitions was also examined. The Authority came to the conclusion that the judgements cited before it on behalf of the respondents were related to the State Government employees, whereas Mandi Parishad is neither the Central Government nor the State Government organisation but is merely a statutory authority, as held in the judgement of this Court dated 19.07.2016 passed in Writ C No.24841 of 2016 (supra) upheld by the Hon'ble Supreme Court in Special Leave to Appeal (C) No.34308 of 2016 decided on 06.02.2017.

20. In view of the discussion made by the Controlling Authority, it has to be seen by this Court as to whether the judgement in Netram Sahu (supra) or reference made in Dhansai Sahu (supra) has any adverse effect on the claim of the appellant, that is to say, as to whether placing reliance upon the said reference, an interim order could be granted by the learned Single Judge, inasmuch as, we do not find any other reasoning behind passing the impugned interim order.

21. Notwithstanding the aspect of applicability of either judgment of Netram Sahu (supra) or reference made in Dhansai Sahu (supra), we may gainfully refer certain decisions on the proposition as to what effect pending reference made to a Larger Bench would have on the proceedings which are brought before the Court.

22. In Ashok Sadarangani v. Union of India, (2012) 11 SCC 321, it was held as under:

"29. As was indicated in Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh vs. State of Punjab and another: (2010) 15 SCC 118 need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field."

23. The decisions of Hon'ble Supreme Court in Harbhajan Singh (supra) and Ashok Sadarangani (supra) were recently again considered by the Hon'ble Apex Court in the case of Union Territory of Ladakh and others vs. Jammu and Kashmir National Conference and another: 2023 SCC Online SC 1140: 2023 (12) SCR 68. Further, this Court, in its order dated 20.12.2024 passed in Writ A No.20698 of 2024 (Shivam Shukla and 6 others vs. Union of India and 7 others), after placing reliance upon the judgement in Union Territory of Ladakh (supra) and another decision of Hon'ble Supreme Court in Rajnish Kumar Rai vs. Union of India and others: 2023 INSC 862, has reiterated the same proposition of law.

24. We are also not impressed by the submissions made by Shri Bhushan on the line that since statutory appeals in identical matters have been dismissed and, therefore, the same is sufficient reason for filing the writ petition without filing appeal. In our opinion, merely because statutory appeals in other matters have been dismissed by the appellate authority, the same cannot be a ground not to file an appeal, otherwise a situation may arise that in any particular matter where the statutory fora or appropriate courts have dismissed the claim/defence of any party, litigants would be free to take recourse to the highest courts, like High Court or Hon'ble Apex Court taking a plea that their claim/defence, as the case may be, has been dislodged by the sub-ordinate fora/courts. Such a situation would create a chaos in the hierarchy of the courts/fora/authorities whose jurisdiction in the matters has been well-defined under the Statutes or otherwise. The argument so advanced, therefore, stands discarded.

25. In view of the above discussion, we are of the view that passing of interim order by the learned Single Judge, staying the award only on account of pendency of reference made to the Larger Bench, moreso when the plea of availability of an alternative statutory remedy of appeal under Section 7(7) of the Act was also specifically raised by the appellant, who had appeared through caveat, appears to be not justified. However, at the same time, it is also observed as to under what circumstances availability of alternative remedy can be bypassed, so as to entertain a writ petition, is always in the discretion of the Court while exercising powers under Article 226 of the Constitution of India.

26. Leaving the said exercise to be taken care of by the learned Single Judge in his own discretion, we are satisfied that passing of an interim order based upon reasoning given therein, appears to be not justified and, therefore, we are inclined to allow the present appeal and remit the matter to the stage of fresh consideration of the writ petition by the learned Single Judge.

27. Accordingly, the appeal is allowed. The order dated 06.05.2025 passed in learned Single Judge in Writ C No.14071 of 2025 is hereby set aside.

28. Writ C No.14071 of 2025 shall now be listed before appropriate Single Bench on 24.07.2025 as a fresh case.

Order Date :- 11.7.2025

Jyotsana

(Kshitij Shailendra, J) (Arun Bhansali, CJ)