Auxilium Convent School vs The State Of West Bengal & Ors
2022 Latest Caselaw 5668 Cal

Item No.8.
             IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE


                           HEARD ON: 22.08.2022

                        DELIVERED ON:22.08.2022

                                  CORAM:

               THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                    AND
         THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA


                           F.M.A. No.428 of 2021

                        Auxilium Convent School.
                                    Vs.
                      The State of West Bengal & Ors.


Appearance:-
Mr. Sandip Kumar Bhattacharya,
Ms. Debanwita Pramanik                      .....    for the appellant.



                                 JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. This intra-Court appeal at the instance of the writ

petitioner is directed against the order dated 2 nd March, 2020 in

W.P. 18298 (W) 2019. In the said writ petition, the appellant /

institution had challenged the order passed by the controlling

authority under the provisions of the Payment of Gratuity Act,

1972 (hereinafter referred to as the "said Act") dated 25 th

September, 2017 and also the certificate proceedings which were

pending before the Learned District Magistrate and Collector,

South 24 Parganas. The learned Single Bench had dismissed the

writ petition primarily on two grounds, viz. that the order

passed by the controlling authority dated 25 th September, 2017

was appealed against before the appellate authority under the

said Act in G.R.A. 8 of 2017 and the said appeal stood dismissed

by order dated 10th May, 2018 on the ground that the appellant

had not complied with the requirement of pre-deposit as provided

under the Second proviso to Section 7(7) of the said Act. The

second ground on which the learned Single Bench had dismissed

the writ petition is on the ground that the appellant has not

challenged the order passed by the appellate authority in the

writ petition but attempted to canvass the case on merits.

2. In our considered view, the finding rendered by the learned

Single Bench that the appellant having challenged the order

passed by the controlling authority before the appellate

authority cannot canvass the merit of the matter in a writ

petition is well founded. The second aspect which weighed in

the mind of the learned Writ Court was that there was no

challenge to the order passed by the appellate authority dated

10th May, 2018. Though such finding may be right, in our

considered view, relief need not be denied to the appellant on

such a technical ground more so, when the appellant had

questioned the jurisdiction of the controlling authority to

compute the gratuity and several grounds have been raised on the

merits of the matter.

3. Learned Advocate appearing for the appellant submitted that

the amount of gratuity as computed by the controlling authority

has been paid to the deceased employee. However, copy of such

receipt is not readily available with the learned Advocate

appearing for the appellant. In any event, if such payment had

been effect prior to 10th May, 2018, nothing prevented the

appellant from producing the copy of the receipt before the

appellate authority. If that had been done, there would have

been no occasion for the appellate authority to record non-

compliance of the statutory requirement under the Second proviso

to Section 7(7) of the said Act.

4. In the light of the above, we are of the view that the

appeal can be disposed of by issuing appropriate direction.

5. We are inclined to dispose of the appeal without giving

notice to the respondents as the writ petition stood dismissed

at the admission stage on the ground of non-compliance of a

statutory condition.If the submission made by the learned

Advocate for the appellant is factually correct, then we are of

the view that one more opportunity can be granted to the

appellant to go before the appellate authority and produce the

receipt evidencing payment of the gratuity amount as computed by

the controlling authority vide order dated 25th September, 2017

and if the same is done to the satisfaction of the appellate

authority, the appellate authority can decide the appeal on

merits and in accordance with law.

6. If such course is adopted, it would also be beneficial to

the deceased employee as no useful purpose would be served by

keeping this appeal pending on the file of this Court.

7. In the light of the above, this appeal is partly allowed

and the ultimate conclusion arrived at by the learned Writ Court

in dismissing the writ petition is set aside with a direction to

the appellant to file a miscellaneous petition before the

appellate authority under the said Act cum Deputy Labour

Commissioner enclosing a copy of this judgment and order as well

as receipt evidencing payment of the gratuity amount as computed

by the controlling authority vide order dated 25th September,

2017.

8. If the appellate authority is satisfied with the condition

stipulated in the Second proviso to Section 7(7) of the said Act

stands fulfilled, the appeal shall be taken on file and after

hearing the parties, an order be passed on merits and in

accordance with law. In the event the appellate authority is of

the opinion that the appellant has not fulfilled the statutory

requirements, an order containing reasons be passed so as to

enable the appellate to work out its remedies in accordance with

law.

9. There shall be no order as to costs.

10. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(T.S. SIVAGNANAM, J)

I agree,

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)