Delhi High Court
G4S Facility Services India Pvt Ltd vs Chet Ram on 15 May, 2025
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15.05.2025
+ W.P.(C) 17542/2022, CM APPL. 55997/2022
G4S FACILITY SERVICES INDIA PVT LTD. .....Petitioner
Through: Mr. Amitabh Chaturvedi, Mr.
Gulshan Chawla, Ms. Rimjhim
Suhani, Advocates
versus
CHET RAM .....Respondent
Through: Mr. Utsav Jain, Advocate for R-1
Mr. Manashwy Jha, Panel Counsel
(Civil), GNCTD
Mr. Abhinit Das, Advocate (Amicus
Curiae)
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
1. The Registry is directed to ensure that the cause title as appearing in
the cause list is in the terms of the amended memo of parties /directions
passed by this Court from time to time.
2. The present Petition has been filed under Article 226 and 227 of the
Constitution of India seeking to challenge an Order dated 19.12.2019 passed
by the Controlling Authority, Hari Nagar, South West district, New Delhi
[hereinafter referred to as "Impugned Order"] under the Payment of Gratuity
Act, 1972 [hereinafter referred to as "Act"]. In addition, the challenge has
also been made to the recovery certificate which emanates from the
Impugned Order.
3. A Coordinate Bench of this Court by its Order dated 22.12.2022 had
stayed the Impugned Order, subject to the Petitioner depositing Rs.
1,05,895/- with the Registrar General of this Court. By an Order dated
17.04.2025, this Court had appointed an Amicus Curiae in the matter.
Learned Counsel have been heard in the matter.
4. Briefly the facts are that the Respondent No. 1/Workman joined the
services of Petitioner/Management on the contract of employment on
09.05.2007. His services were terminated on 31.08.2018 [this is borne from
the paragraph 2 of the statement of claim of the Petitioner/Management].
Subsequently, the Petitioner/Management calculated gratuity which was
offered to the Respondent No. 1/Workman. It is the case of the
Petitioner/Management that the gratuity amount was not accepted by the
Respondent No.1/Workman, however this is disputed by the Respondent
No. 1/Workman. Instead, a Claim Petition was filed by the Respondent No.
1/Workman before the office of the Controlling Authority, Labour
Commissioner, New Delhi [hereinafter referred to as "Controlling
Authority"] on 27/29.03.2019 claiming an amount of Rs. 1,05,895/- along
with the interest at the rate of 20% per annum.
4.1 Although initially there was an appearance on behalf of the
Petitioner/Management before the Controlling Authority, however the
Petitioner/Management stopped appearing, and an ex-parte Order was
passed against the Petitioner/Management by the Controlling Authority.
Pursuant to the Impugned Order, a Recovery Certificate was also issued on
19.08.2020 by the office of the Joint Labour Commissioner [hereinafter
referred to as "Impugned Recovery Certificate"].
4.2 An Application was filed by the Petitioner/Management on
15.09.2020 [Annexure P-6] before the Controlling Authority seeking recall
of the Impugned Order along with other prayers. It is the case of the
Petitioner/Management that this Application was neither heard nor was
disposed of by the Controlling Authority. This led to the filing of the present
Petition.
5. Learned Counsel appearing on behalf of the Petitioner/Management
has made two submissions. In the first instance, it is submitted that in terms
of Section 2(a)(i)(b) of the Act, in cases where the management has
branches in more than one State, the appropriate Government as defined
under the Act would be the Central Government. He seeks to rely upon
Section 2(a)(i), 2(d) and Section 3 of the Act in this behalf to submit that the
Petitioner/Management has branch offices in multiple cities in India and
thus, the appropriate Government would be the Central Government.
Reliance in this behalf is placed on the provisions of the Act as well as on
the judgment of the Coordinate Bench of this Court in Balsara Hygiene
Products Limited v. The Appellate Authority1, which has been upheld by
Supreme Court, National Agricultural Co-operative Marketing Federation
of India Ltd. v. Union of India and Anr.2 and M/s G4S Secure Solutions
India Pvt. Ltd v. Manoj Kumar Jha.
5.1 Learned Counsel submits that given the fact that the Controlling
Authority had no jurisdiction to entertain the Claim Petition, the Impugned
2001 SCC OnLine Del 898
2019 SCC OnLine Del 11249
Order cannot be sustained.
6. The learned Amicus Curiae has also filed a compilation of judgments
and submits that in view of the settled law as laid down in Balsara Hygiene
case the Controlling Authority would be the controlling authority appointed
by the Central Government and thus, the Impugned Order has been passed
without jurisdiction.
7. Learned Counsel appearing on behalf of the Respondent No.1, on the
other hand, has raised two objections. Firstly, he submits that the Petition is
not maintainable in view of the existence of a remedy of an Appeal.
Reliance is placed on the Section 7(7) of the Act. Secondly, it is contended
that the Impugned Order was passed on 19.12.2019 and the Petition which is
filed on 20.12.2022 is barred by delay and latches.
8. In Rejoinder, learned Counsel appearing for the
Petitioner/Management has contended that Notice of the Impugned Order
was only received by the Petitioner/Management after the Impugned
Recovery Certificate was received in the office of the
Petitioner/Management and subsequently on 15.09.2020, an Application was
filed by the Petitioner/Management before the Controlling Authority for
setting aside of the Impugned Order. He further submits that since there was
no order passed on the Application, the Petitioner/Management was
constrained to file the present Petition.
8.1 On the other issue raised by the learned Counsel for the Respondent
No.1, learned Counsel appearing for the Petitioner/Management submits that
it is settled law that even in spite of an Appellate remedy being available, an
order passed by an authority without jurisdiction, can always be challenged
under Article 226 without taking recourse to alternate remedy. Reliance in
this behalf is placed on the judgment passed by the Supreme Court in
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors.3,
Radha Krishna Industries v. State of Himachal Pradesh & Ors.4 and the
judgment passed by this Court in Acceptier Investments Aircrafts Limited v.
Union of India & Anr.5
8.2 In any event, it is contended by the learned Counsel appearing for the
Petitioner/Management that since the Controlling Authority appointed by
the State Government passed the Impugned Order without jurisdiction, the
remedy of an Appeal which would otherwise lie before the Appellate
authority appointed by the state government which is not a feasible alternate
remedy.
9. The issue before the Court is limited as to whether the Impugned
Order and Impugned Recovery Certificate have been passed by the
appropriate Government as is defined in the Act. It is apposite to set out
relevant provisions of the Act below:
"..
2. Definitions. - In this Act, unless the context otherwise requires,
(a) "appropriate Government" means,-
(i) in relation to an establishment-
(a) belonging to, or under the control of, the Central Government,
(b) having branches in more than one State,
(c) of a factory belonging to, or under the control of, the Central
Government,
(d) of a major port, mine, oilfield or railway company, the
Central Government,
(1998) 8 SCC 1
(2021) 6 SCC 771
SCC OnLine Del 3895
(ii) in any other case, the State Government;
...
(d) "controlling authority" means an authority appointed by the
appropriate Government under section 3;
...
3. Controlling authority.- The Appropriate Government may, by
notification, appoint any officer to be a controlling authority, who shall
be responsible for the administration of this Act and different
authorities may be appointed for different areas.
[Emphasis Supplied]
9.1 Section 2(d) and Section 3 of the Act defines Controlling Authority as
the authority appointed by the Government responsible for administering the
Act. Section 2(a) of the Act provides that where an establishment has
branches in multiple States, the authority to decide the disputes would be the
authority appointed by the Central Government.
10. This issue was examined by a Coordinate Bench of this Court in the
Balsara Hygiene case wherein it was held that where the management has
branches in more than one State, the Controlling Authority would be the the
authority appointed by the Central Government. The judgement in the
Balsara Hygiene case was the subject matter of challenge before the
Supreme Court in Rakesh Kumar Girotra v. M/s Balsara Hygiene Products
Ltd.6, which was dismissed. The relevant extract of the Balsara Hygiene
case is reproduced below:
"...
5. ...During the course of arguments of the appeal it was also submitted
on behalf of the petitioner that the Controller Authority had no
jurisdiction to entertain the matter in view of provisions of Section 2 of the
Act. According to the petitioner, jurisdiction if any to entertain the mater
was with the Central Government and that the State Government lacks
inherit jurisdiction to entertain and decide the claim as the petitioner
SLP (C) No. 001904/2002; order dated 30.04.2008
company is having its branches in more than one State. The aforesaid
plea with regard to want of jurisdiction was objected to by the respondent
No. 2 before the Appellate Authority on the ground that the aforesaid plea
could not be raised at the time of arguments particularly when the same
was not raised either before the Controller Authority or in the appeal
petition filed by the petitioner...
xxxx xxxx xxxx xxx
7. Counsel appearing for the petitioner submitted that since the issue raised
goes to the root of the matter and relates to inherent lack of jurisdiction of
the State Government to decide the matter therefore, the said plea could be
raised at any stage as it relates to inherent lack of jurisdiction. In support of
the said contention counsel relied upon the decisions of the Supreme Court
in Hira Lal Patni vs. Sri Kali Nath reported in AIR 1962 SC. 1999,
Chandrika Misir and Another vs. Bhaiyalal , Rattan Lal Sharma vs.
Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary
School And Others reported in 1993 Lab. I.C. 1808 and in the decision
of Union Of India and Others vs. Baleshwar Singh reported in (1924) 29
Administrative Tribunals Cases 77.
[Emphasis Supplied]
10.1 The Coordinate Bench after examining the law on this aspect held that
the inherent lack of jurisdiction is a plea which goes to the root of the matter
and disposes of the Petition, transferring the Claim Petition for adjudication
before the controlling authority appointed by the Central Government in the
following terms:
"17. Therefore, the legal principle which is established is that if the plea
raised goes to the root of the question and concerns inherent lack of
jurisdiction of the court deciding the matter, such plea could be allowed to
be raised even at a later stage, for it goes to very root of the matter. Such a
plea concerning inherent lack of jurisdiction of court to decide the matter
could be raised before the High Court in a writ jurisdiction, for the first
time, and such a plea is required to be entertained to do justice amongst
the parties. On the other hand, if the plea raised concerns lack of
territorial or pecuniary jurisdiction, the same could be waived by a party
by submitting to its jurisdiction and by not raising at the earlier stage...
18. In my considered opinion, the decisions rendered by the Supreme Court
in the cases of Hira Lal and Rattan Lal Sharma (supra) squarely apply to
the facts and circumstances of the present case and, therefore, following the
ratio of the aforesaid decisions, the writ petition is allowed and the
impugned orders of the Appellate Authority as also of the Controlling
Authority are set aside and quashed. The application, which was filed by
the respondent No. 2 before the Controller Authority appointed by the
State Government would stand transferred to the Controlling Authority
appointed by the Central Government having jurisdiction in the matter
namely - Controlling Authority appointed by the Central Government,
Office of the Regional Labour Commissioner, Curzon Road Barracks,
Kasturba Gandhi Marg, New Delhi-110001 and the same shall be
proceeded with by the said authority in accordance with law allowing the
petitioner management to file its written statement..."
[Emphasis Supplied]
11. Learned Counsel appearing on behalf of the Respondent No.1 has
relied upon the judgment of the Bombay High Court in Metal Box India v.
B.R. Rangari7. However, the learned Counsel for the
Petitioner/Management submits that this judgment is not applicable in the
facts of the present case.
11.1 An examination of the judgment shows that the issue decided in the
Metal Box India case was whether the Section 5 of the Limitation Act, 1963
applies to the proviso of Section 7 (7) of the Act. It was held that "factories"
in other States could not be equated with "branches" and thus, the provisions
of Section 2(a) of the Act are inapplicable. Given that in the present case,
the Petitioner has contended that it has "branch" offices in more than one
state, the issue raised in the Metal Box India case is entirely distinct from
the issues involved in the present case.
12. So far as concerns the objections taken by the Respondent No.1 on the
maintainability of this Petition in view of availability of alternate remedy
before the Appellate authority is concerned, the same is without any merit.
2006 SCC OnLine Bom 512
13. As stated above, it is settled law that where an order has been passed
in the absence of jurisdiction, the Court under the provisions of Article 226
of the Constitution of India has ample power to set aside and to pass any
order to rectify the error so caused. The Supreme Court in the Radha
Krishna case the Court has held that the High Court has the discretion not to
entertain a writ petition where an effective alternate remedy is available to
the aggrieved person however, the High Court can entertain a writ petition
irrespective of the fact that an effective alternate remedy is remedy is
available if the order or proceedings under challenge is wholly without
jurisdiction. The relevant extract of Radha Krishna case is reproduced
below:
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be
exercised not only for the enforcement of fundamental rights, but for any
other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One
of the restrictions placed on the power of the High Court is where an
effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ
petition has been filed for the enforcement of a fundamental right
protected by Part III of the Constitution; (b) there has been a violation of
the principles of natural justice; (c) the order or proceedings are wholly
without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its
powers under Article 226 of the Constitution in an appropriate case thou
gh ordinarily, a writ petition should not be entertained when an
efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy
or procedure for enforcing the right or liability, resort must be had to that
particular statutory remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of statutory remedies
is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court
may decide to decline jurisdiction in a writ petition. However, if the High
Court is objectively of the view that the nature of the controversy requires
the exercise of its writ jurisdiction, such a view would not readily be
interfered with."
[Emphasis Supplied]
14. This Court is in Agreement with the submissions of the learned
Amicus Curiae and learned Counsel appearing for the
Petitioner/Management that the provisions of Section 7(7) of the Act could
only be exercised if the order was passed by the Controlling Authority
within the jurisdiction of the Controlling Authority. Since the Impugned
Order is passed sans jurisdiction, this remedy could in any event not be
exercised by the Petitioner/Management.
15. On the aspect of delay and latches, this Court finds that the
Petitioner/Management has clarified that the Petitioner/Management had
taken steps as soon as it had received the Impugned Recovery Certificate in
August/September 2020. Subsequently, Covid-19 pandemic set in. It is
contended that since there was no response from the Controlling Authority,
the Petition was filed in December 2022.
15.1 Given the period of Covid, and the judgment of the Supreme Court in
In Re: Cognizance for Extension of Limitation8 and the fact that the
Application seeking to recall the Impugned Order was filed upon receipt of
Impugned Recovery Certificate , this Court finds that the plea of delay and
laches is misconceived.
16. Undisputably, the Petitioner/Management does have branch offices in
cities other than Delhi. Thus, the controlling authority would be the
(2022) 3 SCC 117
authority appointed by the Central Government and not the Controlling
Authority appointed by the State Government that has passed the Impugned
Order.
17. Accordingly, the Impugned Order cannot be sustained. Consequently,
the Impugned Order and the Impugned Recovery Certificate are set aside.
The Petition is allowed.
18. Given the fact that the matter has been pending for so long, this Court
deems it apposite to direct that the Application filed by the Respondent No.
1/Workman be sent to the Labour Office at Shramev Jayate Bhawan,
Ground 8 First Floor, G-4, Sector-10, Dwarka, New Delhi-110075 within
two weeks from today. The Authority is requested to adjudicate the
complaint in an expeditious manner. The parties shall cooperate before the
office of the Authority. The parties will appear before the Authority, Central
Government on 02.06.2025 at 10:30 am.
19. The Court thanks the learned Amicus Curiae for his assistance in the
matter.
20. The parties shall act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J
MAY 15, 2025
g.joshi/ha
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