Thai Airways International ... vs Gurvinder Singh
2018 Latest Caselaw 1032 Del

$~13
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of Judgment: 13.02.2018
+                   W.P. (C) 7762/2015
        THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY
        LTD.                                ..... Petitioner
                      Through: Ms.Ratna Dwivedi Dhingra and
                      Ms.Bhavna Dhami and Mr.Ajay Pratap
                      Singh, Advocates.

                           versus

        GURVINDER SINGH                      ..... Respondent
                     Through: Mr.Rajat Arora, Advocate
        CORAM:
        HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)

1. The jurisdication of this Court has been invoked by the petitioner under Article 226 and 227 of the Constitution of India challenging the order dated 27.05.2015 passed by the Assistant Labour Commissioner who is the Controlling Authority under The Payment of Gratuity Act, 1972 (in short "the Controlling Authority") in a Claim Petition No.ALC-I/36(457) of 2013 whereby the petitioner was directed to pay to the respondent a sum of Rs.1,01,538/- as balance gratuity along with interest @10% per annum from 03.02.2006 till the date of payment.

2. The brief facts of the case are that the Government of NCT of Delhi had referred a Reference No.F.24 (271) 1988-Lab/3987-

92 dated 24.02.1988 to the Labour Court-II, Karkardooma, Shahdara, Delhi in the following terms:-

"Whether the dismissal of Shri Gurvinder Singh is illegal and/or unjustified and, if so to what relief is he entitled and what directions are necessary in this respect?"

3. The learned Presiding Officer, Labour Court-II (in short „Industrial Adjudicator‟) adjudicated the reference by award dated 03.02.2006 and found services of the respondent were terminated by the petitioner illegally and/or unjustifiably and since the respondent was near the age of superannuation he was granted compensation of Rs.6 lakhs in lieu of reinstatement, back-wages, continuity of service and all other legal benefits and accordingly answered the reference.

4. The petitioner challenged the award of the Industrial Adjudicator in a writ petition being WP(C) No.9656/2007. During the pendeny of this writ petition, the respondent filed an application under Section 17B of the Industrial Disputes Act, 1947 which was dismissed by the learned Single Judge of this Court on 10.05.2010 which led the respondent to prefer LPA No.588/2010. There, the learned counsel for the petitioner herein stated that he has no objection to pay the compensation of Rs.6 lakhs as awarded by the Labour Court and it should be treated as ex-gratia and accordingly the Division Bench of this Court disposed of the LPA on 25.05.2011 with the direction to release the amount of Rs.6 lakhs by the Registry to the

respondent herein with interest accrued thereon and since nothing remained in WP(C) 9656/2007, the same was also ordered to be disposed of accordingly.

5. Subsequently, the respondent filed an application being CM APPL. 20700/2012 in the disposed of LPA No.588/2010 and claimed that besides the awarded amount he is also entitled to retiral benefits i.e. gratuity etc. from the petitioner and sought a direction for payment of release thereof. The Division Bench dismissed the application on 14.12.2012 with the liberty to the respondent to claim relief sought in the application in the appropriate proceedings before the appropriate fora and in accordance with law.

6. The respondent filed a review application being RA No.68/2013 in LPA No.588/2010 and sought review of the order dated 14.12.2012 disposing of CM APPL. 20700/2012 preferred by him. This review application was dismissed by the Division Bench on 24.05.2013.

7. The respondent preferred a claim application before the Controlling Authority for determination of the amount of gratuity payable to him. After hearing both the parties, the Controlling Authority has passed the order which is impugned in this writ petition.

8. It is submitted by learned counsel for the petitioner that it was in full and final settlement before the High Court in LPA No.588/2010 decided on 25.05.2011. She submits that the respondent had never raised a claim for gratuity even after

passing of the award dated 03.02.2006. She submits that the impugned order is based on presumption and assumption that the award dated 03.02.2006 does not include the retiral benefits. She submits that if there was ambiguity in the award dated 03.02.2006 the respondent should have sought a clarification from Industrial Adjudicator as to whether it includes the retiral benefits. She submits that all other legal benefits cannot be stretched to such an extent so as to include even the terminal benefits of gratuity. She submits that claim of gratuity is an afterthought to extract money from the petitioner.

9. Per contra, the learned counsel for the respondent has raised a preliminary objection about the maintainability of the writ petition. He submits that the impugned order passed under sub- section (4) of Section 7 of the Payment of Gratuity Act, 1972 is appellable before the appropriate Government or other authority as specified under sub-section (7) of Section 7 of the said Act and this writ petition is not maintainable as the effective alternative remedy is available to the petitioner. Even on merits, he submits that it was not a settlement in the LPA and rather the learned counsel for the petitioner stated before the Division Bench that this amount of compensation shall be treated as an exgratia. Even as per the award dated 03.02.2006, the compensation of Rs.6 lakhs was granted to the respondent in lieu of his reinstatement, back-wages, continuity of service and all other legal benefits. He submits that other legal benefits were not inclusive of benefit of the gratuity.

10. I have learned counsel for the parties. In order to appreciate the rival contentions of the parties, it would be beneficial to refer Section 7, 7(4) and 7(7) of the Payment of Gratuity Act, 1972 which reads as under:-

"7. Determination of the amount of gratuity.--(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

xxxx xxxx xxxx

(4)(a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.

(c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.

(d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.

(e) As soon as may be after a deposit is made under clause

(a), the controlling authority shall pay the amount of the deposit--

(i) to the applicant where he is the employee; or

(ii) where the applicant is not the employee, to the 7 [nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.

xxxx xxxx xxxx

(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: 1 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 sub-section (4), or deposits with the appellate authority such amount."

11. It is clear from the above said provision that the petitioner if aggrieved by an order passed under sub-section (4) of Section 7 could prefer an appeal within 60 days from the date of receipt of the order to the appropriate Government or such other authority as has been specified by the Government.

12. It is trite that when the petitioner is having an alternative effective statutory remedy of appeal, the writ petition under Article 226/227 of the Constitution of India cannot be allowed to be entertained.

13. In a case before the Hon'ble Supreme Court in Sadhna Lodh vs. National Insurance Company Ltd. 2003 (3) SCC 524, where instead of challenging the award of MACT by way of appeal, the insurer preferred a writ petition under Article 226/227 of the Constitution of India on the ground that the insurer has limited grounds available to challenge the award of the Tribunal. The Hon‟ble Supreme Court has held:-

"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi [(2002) 7 SCC 456 : 2002 SCC (Cri) 1788] ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115

CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.

7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

8. For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court

ought not to have entertained the petition under Articles 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer to file an appeal if it is permissible under the law."

14. Similarly in Transport & Dock Workers Union vs. Mumbai Port Trust 2011 (2) SCC 575, the Hon'ble Supreme Court held that:-

"14. In our opinion the writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the appellants by raising an industrial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us that some High Courts by adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following settled legal principles. However, we may also consider the case on merits."

15. In the circumstances when the petitioner is having an alternative effective statutory remedy of appeal available against the impugned order passed by the Controlling Authority under

Section 7(4) of the Payment of Gratuity Act, 1972 to prefer an appeal to the appropriate Government or such other authorities as may be specified under sub-section (7) of Section 7, the present writ petition cannot be entertained by this Court under Article 226/227 of the Constitution of India.

16. The writ petition is accordingly dismissed.

(VINOD GOEL) JUDGE FEBRUARY 13, 2018 dkb