Jharkhand High Court
Damodar Valley Corporation ... vs The Union Of India Through ... on 7 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 4687 of 2018
Damodar Valley Corporation through the Project Head,
DVC/GMOD-VI, Maithan, Dhanbad........... Petitioner(s)
Versus
1. The Union of India through Ministry of Labour and
Employment
2. Deputy Chief Labour Commissioner, Dhanbad
3. Controlling Authority under Payment of Gratuity Act, 1972
4. Smt. Binapani Das............ Respondent(s)
......
Coram: Hon'ble Mr. Justice Ananda Sen
Through:-Video Conferencing
......
For the Petitioner : Mr. R.N.Sahay, Sr. Advocate
Mr. Soumitra Baroi, Advocate
For the Respondents : Mr. Prashant Vidyarthi, Advocate
......
9/07.04.2021 The lawyers have no objection with regard to the proceeding,
which has been held through video conferencing today at 11.00 A.M. They
have no complaint in respect to the audio and video clarity and quality.
Heard learned senior counsel appearing for the petitioner and the
learned counsel for the Union of India.
In this writ petition, filed under Article 226 of the Constitution of
India, the petitioner makes the following prayer:-
"(i) For a direction upon the Respondent No. 2 to accept and register an
appeal u/s 7(7) of the Payment of Gratuity Act, 1972, which was preferred
before him arising out of the order dated 02.01.2018 passed in Application
No. 36/(63)/2014-E.6 (Annexure-3) whereby and whereunder the Controlling
Authority under Payment of Gratuity Act, 1972 and Assistant Labour
Commissioner (Central), Dhanbad-I has passed an order to pay an amount of
Rs. 5995/- under the provisions of the Payment of Gratuity Act, 1972 within
30 days from the date of receipt of the finding to the Respondent No. 4 by
the petitioner.
(ii) For quashing the letter no. PG/Misc/2018.A.7 dated 05.04.2018
(annexure-7) whereby and whereunder the Deputy Chief Labour
Commissioner (Central) Dhanbad wrote to the Superintending Engineer,
GOMD-II, DVC Maithon, Dhanbad directing him to pay the gratuity amount
of Rs. 5995/- directly to Smt. Binapani Das within 07 days from receipt of the
letter."
Learned senior counsel appearing for the petitioner submits that
vide impugned letter dated 02/22.01.2018, the Controlling Authority
Payment of Gratuity Act, 1972 without disposing the appeal has directed
the petitioner to pay the amount of gratuity to the dependant of Late Ajit
Das. He submits that the impugned letter is absolutely bad and could not
have been issued since the appeal, which has been filed in terms of
Section 7(7) of the Payment of Gratuity Act, 1972 is pending before the
Authority. He submits that the law provides that no appeal is
maintainable without depositing 90% of the awarded amount by the
Controlling Authority, thus, the petitioner had deposited the amount with
the Appellate Authority, preferring an appeal. He submits that the appeal
should have been decided and then only the impugned order can be
passed. He further submits that the impugned order, which is Annexure-3
is absolutely bad and needs to the set aside.
Mr. Prashant Vidyarthi, learned counsel appearing for the Union
of India submits that the petitioner herein has not filed an appropriate
appeal. He submits that only Form-Q has been filed but the procedure for
filing an appeal has been laid down under Rule 18 of the Payment of
Gratuity Rules, 1972 and the petitioner has not followed the said
procedure and has neither filed memo of appeal and the grounds of appeal
nor the certified copy of the judgment of the Controlling Authority. He
submits that in absence of these statutory requirements, it cannot be said
that the petitioner has filed an appropriate appeal. He further submits
that in absence of an appeal, the impugned letter cannot be challenged as
there is no illegality in issuing the same.
After hearing the parties, I find the fact that Form-Q is filed, is
admitted. It is also admitted that the petitioner has neither filed a memo
of appeal, nor the grounds of appeal nor the certified copy of the
judgment, which is appealable before the Appellate Authority. The
petitioner is the employer. The Controlling Authority under the Payment of
Gratuity Act, 1972 vide order dated 02.01.2018, directed the employer to
pay a total amount of gratuity to the tune of Rs. 5995/-. The petitioner did
not pay the same rather deposited the same before the Appellate
Authority. After depositing the said amount, the petitioner filed Form-Q.
Section 7(7) of the Payment of Gratuity Act, 1972 provides for filing an
appeal. Section 7(7) of the Payment of Gratuity Act, 1972 reads as
follows:-
"7(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.
[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.]"
From the aforementioned provision, it is clear that an appeal
would lie before the Appellate Authority. Rule 18 provides as to how an
appeal has to be filed. Rule 18(1) prescribes that the memorandum of
appeal under sub-section (7) of section 7 of the Act shall be submitted to
the appellate authority with a copy thereof to the opposite party and the
controlling authority either through delivery in person or under registered
post acknowledgement due.
Further Rule-18 provides that the memorandum of appeal shall
contain the facts of the case, the decision of the controlling authority, the
grounds of appeal and the relief sought. Further, sub-rule (3) provides
that there shall be appended to the memorandum of appeal a certified
copy of the finding of the Controlling Authority.
These are the mandatory provisions which have to be followed at
the time of filing of an appeal. If we see Section 7(7) of the Payment of
Gratuity Act, 1972, there is no reference for Form-Q in the aforesaid
provision. Said provision of the Act only provides that an appeal has to be
filed before the appropriate Government or such other authority as may be
specified by the appropriate Government in this behalf.
Thus, if an appeal has to be filed, the procedure has to be
followed, which has laid down in Rule-18 of the Rules. Admittedly, the
petitioner has not filed any memorandum of appeal alongwith the grounds
of appeal or the relief claimed nor has filed the certified copy of the
judgment of the Controlling Authority. Merely a Form-Q has been filed.
Form-Q is related to particulars of applications under Section 7 of the Act.
Section 7 of the Act is in relation to determination of the amount of
gratuity. This does not deal with the filing of an appeal. Thus, filing of
Form-Q by way of an appeal is absolutely misconceived and cannot be
said to be an appeal filed in terms of Section 7 (7) of the Payment of
Gratuity Act, 1972.
When admittedly, there is no memorandum of appeal alongwith
the grounds in terms of Rule-18 (1), (2) & (3) of the Payment of the
Gratuity Rules, I am constrain to hold that there is no appeal before the
Appellate Authority. When there is no appeal before the Appellate
Authority, the Appellate Authority was well within its jurisdiction to issue
the impugned letter dated 05.04.2018 (Annexure-7), which directs the
petitioner to pay the gratuity amount to the beneficiary. I find no illegality
in issuing of the aforesaid letter.
Thus, in view of what has been held above, this writ petition
stands dismissed.
(Ananda Sen, J)
Mukund/-cp.2
