Madhya Pradesh High Court
The State Of Madhya Pradesh vs Deepchand Choudhary on 29 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 29th OF JANUARY, 2025
WRIT PETITION No. 10448 of 2024
THE STATE OF MADHYA PRADESH
Versus
DEEPCHAND CHOUDHARY AND OTHERS
Appearance:
Shri A.S. Baghel - Govt. Advocate for petitioner/State.
Shri Ashutosh Tiwari - Advocate for respondent No.1.
ORDER
This petition has been filed assailing the order dated 06.10.2023 passed
by the respondent No.2 i.e. Controlling Authority under the Payment of
Gratuity Act-cum-Labour Officer, Narsinghpur, whereby the application
under Section 7(4) of the Payment of Gratuity Act, 1972 filed by the
respondent No.1-Deepchand Choudhary was allowed.
2. It is the case of the petitioner that Madhya Pradesh Rajya School
Shiksha Sewa (Shaikshanik Samvarg) Sewa Shartein Evam Bharti Niyam,
2018 is applicable to the case of respondent No.1 as his appointment to the
post of Primary Teacher vide order dated 01.07.2018 was in terms of the
aforesaid Rules. From the date of appointment i.e. 01.07.2018 till the date of
retirement i.e. 31.11.2021, the respondent No.1 has only worked for 3 years
and 4 months in the petitioner-department to the post of Primary Teacher. In
terms of Section 4 of the Payment of Gratuity Act, the qualifying service for
eligibility for getting the gratuity is 5 years. Since the respondent No.1 has
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not completed the qualifying service of 5 years as a Primary Teacher in the
petitioner-department, therefore, no such order could have been passed by
the controlling authority.
3. On notice being issued, a reply has been filed by the respondent No.1
denying petitioner's contentions. It is argued that initial appointment of
respondent No.1 in the petitioner-department was on ad-hoc basis as
Samvida Shala Shikshak Grade III vide order dated 01.09.2001. He was
appointed in the cadre of Assistant Teacher w.e.f. 01.04.2007 vide order
dated 23.06.2008 in the pay scale of Rs.3000-100-5000. He was given
appointment as a Primary Teacher w.e.f. 01.07.2018. It is argued that the
respondent No.1 was in regular establishment in the cadre of Assistant
Teacher w.e.f. 01.04.2007 in regular pay scale. Therefore, the argument
advanced by the petitioner that the respondent No.1 has not completed the
qualifying service of five years to enable him to be entitled for grant of
gratuity is incorrect. It is argued that similar proposition was considered by
the Division Bench of High Court of Uttarakhand at Nainital in the case of
M/s Saraswati Dynamic Limited vs Controlling Authority under the Payment
of Gratuity Act : Special Appeal No. 72 of 2024 decided on 08.04.2024
wherein it is observed that for the purpose of conducting an enquiry, the
"Controlling Authority" has been given all the powers of a Civil Court for
the purpose of enforcing the attendance of any person or examining him on
oath, requiring the discoveries and production of documents, receiving
evidence on affidavits and issuing commissions for the examinations of
witnesses. Sub- section (6) of Section 12 lays down that enquiry under this
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Section shall be a judicial proceeding within the meaning of Sections 193
and 228, and for the purpose of Section 196 of the Indian Penal Code, 1860.
The "Controlling Authority" is appointed by the State and has been clothed
with the State's inherent judicial power to deal with disputes between the
parties. Therefore, under the provisions of the Payment of Gratuity Act,
1972, the proceedings before the Controlling Authority have the "Trapping
of a Court". Hence, any order passed by the Controlling Authority under the
Payment of Gratuity Act, 1972, particularly Section 7 thereof, is deemed to
have been passed by the Tribunal. The order passed by the Tribunal is an
appealable order. Under these circumstances, the petition itself is not
maintainable. To buttress the submissions, respondent's counsel has placed
reliance on the judgment rendered by the Hon'ble Supreme Court in case of
Birla Institute of Technology vs State of Jharkhand and others : Civil Appeal
No. 2530 of 2012 decided on 07.03.2019 as well as judgments of the
Division Bench of this Court in W.A. No. 152/2019 : School Education
Department vs Smt. Tejwant Kaur decided on 29.05.2020 : AIR Online 2020
MP 879; Ram Nihore Soni vs Mines Manager and another passed in W.P.
No. 13382 of 2018 decided on 31.10.2022 and Prof. Sudha Murty vs State of
M.P. : W.P. No. 30402 of 2023 dated 19.02.2024. He has prayed for
dismissal of the petition.
4. Heard learned counsel for the parties and perused the record.
5. Counsel appearing for the petitioner could not dispute the fact that the
provision of appeal is available in terms of Section 7(7) of the Payment of
Gratuity Act, 1972. The similar aspect was considered by the High Court of
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Uttarakhand at Nainital in M/s Saraswati Dynamic Limited (supra) as well as
by the Hon'ble Supreme Court in the cases of ONGC vs Gujarat Energy
Transmission Corpn. Ltd., (2017) 5 SCC 42, Bengal Chemists & Druggists
Assn. vs Kalyan Chowdhury, (2018) 3 SCC 41 and P. Radha Bai vs P.
Ashok Kumar, (2019) 13 SCC 445. Under these circumstances, as an
alternative and efficacious remedy is available to the petitioner, this Court is
not inclined to entertain the present petition. The petitioner is granted liberty
to file an appeal before the appellate authority against the impugned order.
6. With the aforesaid, the petition stands disposed of finally. No order as
to costs.
Interim order dated 06.05.2024 is hereby vacated.
(VISHAL MISHRA)
JUDGE
VV
