Uttarakhand High Court
Writ vs Controlling Authority Under The ... on 8 April, 2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
08TH APRIL, 2024
SPECIAL APPEAL NO. 72 OF 2024
M/s Saraswati Dynamic Limited ...... Appellant-
Writ petitioner
Versus
Controlling Authority Under the Payment of
Gratuity Act, 1972 and Another
......Respondents
Counsel for the Appellant : Mr. Gopal Narayan,
Advocate with Mr.
Amar Murti Shukla,
Advocate.
Counsel for the : Mr. K.N. Joshi, Deputy
Respondent No.1 Advocate General.
Upon hearing the learned counsel for the parties, this
Court made the following judgment :
(Per : Shri Alok Kumar Verma, J.)
This intra-court appeal has been filed assailing
the order dated 26.02.2024, passed in Writ Petition No.498
of 2024 (M/S), "M/s Saraswati Dynamic Limited vs.
Controlling Authority under the Payment of Gratuity Act,
1972 and Another", whereby, the learned Single Judge has
dismissed the writ petition.
2. Heard Mr. Gopal Narayan, Advocate with Mr. Amar
Murti Shukla, Advocate for the appellant and Mr. K.N. Joshi,
Deputy Advocate General for the respondent no.1.
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3. Mr. K.N. Joshi raised a preliminary objection to the
maintainability of this intra-court appeal. He contended that
the impugned order under writ petition dated 20.12.2023
was passed by the Controlling Authority under the Payment
of Gratuity Act, 1972. The "Controlling Authority" is a
Tribunal. Therefore, no Special Appeal is maintainable under
the provisions of Rule 5 of Chapter VIII of the Allahabad
High Court Rules, 1952, applicable to High Court of
Uttarakhand under U.P. Re-Organization Act,2000, against
the order dated 26.02.2024, passed by the learned Single
Judge in Writ Petition No.498 of 2024 (M/S), which was filed
by the appellant-writ petitioner against the order dated
20.12.2023, passed by the Controlling Authority.
4. Mr. Gopal Narayan, learned counsel appearing for
the appellant, opposed the said submission and contended
that this Special Appeal is maintainable.
5. In order to appreciate the issue which arises at the
preliminary stage of this Special Appeal, a brief reference to
the factual back ground is necessary, which is as follows:-
The respondent no.2 was employed under
the employment of the appellant in the month of November,
1990. He worked under the appellant from 1990 upto 22nd
August, 2008. The petitioner had calculated the gratuity and
other admissible amount and after informing the respondent
no.2 transferred to his account on 26.02.2009. Respondent
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no.2 received payment of Rs.51,862/-. Respondent no.2 did
not raise any objection. The petitioner had received a notice
from the office of respondent no.1 along with a copy of
Application, filed by respondent no.2 on 23.02.2021. The
petitioner filed reply to the said Application in which the
petitioner took a specific plea that the Application, filed by
the respondent no.2, is not maintainable; the claim of
respondent no.2 is barred by limitation, and, the respondent
no.2 accepted the amount of gratuity on 26.02.2009,
deposited by the petitioner in terms of the provisions
contained in the Payment Of Gratuity Act, 1972. The
respondent no.1 allowed the claim of the respondent no.2
on 20.12.2023. As per the petitioner, the petitioner has no
other alternative, efficacious and speedy remedy. Therefore,
the petitioner filed the writ petition with following reliefs :
"(i) Issue a writ, order or direction in the nature
of certiorari quashing the impugned order/judgment
dated 20.12.2023 (Annexure-4) issued by
respondent no.1.
(ii) Issue any other order or direction which this
Hon'ble Court may deem fit and proper in the
circumstances of the case.
(iii) Award cost of the petition."
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6. The learned Single Judge observed that the
petitioner has challenged the order dated 20.12.2023,
passed by Controlling Authority, under Payment of Gratuity
Act, 1972. Since the order impugned in the writ petition is
appealable under Section 7 (7) of the Payment of Gratuity
Act, 1972, therefore, the Court is not inclined to entertain
the writ petition. Consequently, the writ petition has been
dismissed with liberty to petitioner to approach the
appellate authority.
7. Feeling aggrieved, the appellant-writ petitioner is
before us.
8. Before we examine the contentions of both the
parties, it is necessary to consider the scope of Rule 5 of
the Chapter VIII of the Allahabad High Court Rules, 1952
which makes provisions for an intra-court appeal. Rule 5 of
the Chapter VIII of the Allahabad High Court Rules, 1952
reads as under :-
"An appeal shall lie to the Court from a
judgment not being a judgment passed in
the exercise of appellate jurisdiction in
respect of a decree or order made by a
Court subject to the superintendence of the
Court and not being an order made in the
exercise of revisional jurisdiction or in the
exercise of its power of superintendence or
in the exercise of criminal jurisdiction or in
the exercise of jurisdiction conferred by
Article 226 or Article 227 of the Constitution
in respect of any judgment, order or
award--(a) of a tribunal, Court or statutory
arbitrator made or purported to be made in
the exercise or purported exercise of
jurisdiction under any Uttar Pradesh Act or
under any Central Act, with respect to any
of the matters enumerated in the State List
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or the Concurrent List in the Seventh
Schedule to the Constitution, or (b) of the
Government or any Officer or authority,
made or purported to be made in the
exercise or purported exercise of appellate
or revisional jurisdiction under any such Act
of one judge".
9. From a perusal of the aforesaid Rule, it is clear
that no Special Appeal will lie in the following matter;
(i) the judgment passed by the Single Judge in the
exercise of appellate jurisdiction, in respect of a
decree or order made by a Court subject to the
superintendence of the Court;
(ii) an order made by the Single Judge in the
exercise of his revisional jurisdiction;
(iii) an order made by the Single Judge in the
exercise of the power of superintendence of the
High Court;
(iv) an order made by the Single Judge in the exercise
of Criminal jurisdiction;
(v) an order made by the Single Judge in the
exercise of the jurisdiction conferred by Article
226 or Article 227 of the Constitution of India in
respect of any judgment, order or award by-
(a) the Tribunal,
(b) the Court, or
(c) Statutory arbitrator, made or purported to be
made in the exercise or purported exercise of
jurisdiction under any Uttar Pradesh Act (as
applicable in the State of Uttarakhand) or under
any Central Act, with respect to any of the
matters enumerated in the State List or the
Concurrent List in the Seventh Schedule to the
Constitution, or
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(vi) an order made by the Single Judge in
respect of any judgment, order or award of the
Government or any Officer or Authority made or
purported to be made in the exercise of the
appellate or revisional jurisdiction under any
Uttar Pradesh Act (as applicable in the State of
Uttarakhand) or under any Central Act, with
respect to any of the matters enumerated in the
State List or the Concurrent List in the Seventh
Schedule to the Constitution of India.
10. In order to decide the said question, it is necessary
to refer to the provision of Section 7 of the Payment of
Gratuity Act, 1972. Section 7 of the said Act 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.
(2) As soon as gratuity becomes payable, the
employer shall, whether an application referred to in sub-
section (1) has been made or not, determine the amount of
gratuity and give notice in writing to the person to whom
the gratuity is payable and also to the controlling authority
specifying the amount gratuity so determined.
(3) The employer shall arrange to pay the amount of
gratuity within thirty days from the date it becomes
payable to the person to whom the gratuity is payable.
(3A) If the amount of gratuity payable under sub-
section (3) is not paid by the employer within the period
specified in sub-section (3), the employer shall pay, from
the date on which the gratuity becomes payable to the date
on which it is paid, simple interest at such rate, not
exceeding the rate notified by the Central Government from
time to time for repayment of long-term deposits, as that
Government may, by notification specify:
Provided that no such interest shall be payable if the
delay in the payment is due to the fault of the employee
and the employer has obtained permission in writing from
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the controlling authority for the delayed payment on this
ground.
(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
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.
(5) For the purpose of conducting an inquiry under sub-
section (4), the controlling authority shall have the same
powers as are vested in a court, while trying a suit, under
the Code of Civil Procedure, 1908 (5 of 1908), in respect of
the following matters, namely :
(a) enforcing the attendance of any person or
examining him on oath;
(b) requiring the discovery and production of
documents,
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of
witnesses.
(6) Any inquiry under this 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 (45 of 1860).
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(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 subsection (4), or deposits with the
appellate authority such amount.
(8) The appropriate Government or the appellate authority,
as the case may be, may, after giving the parties to the
appeal a reasonable opportunity of being heard, confirm,
modify or reverse the decision of the controlling authority."
11. A tribunal, generally, is any person or institution
with authority to judge, adjudicate on, or determine claims
or disputes, whether or not, it is called a tribunal in its title.
Nomenclature may be different. In Bharat Bank Limited
vs. Employees of the Bharat Bank, 1950 SCR 459, the
Hon'ble Supreme Court has observed, "......it is to be noticed
that owing to the intricate and complex system of
Government that exists in a modern State and the vast
expansion of social legislation of all sorts that have taken
place in England and in other countries including own,
within the last few decades, the so called administrative and
quasi-judicial tribunals have come to be a permanent
feature of our social and political system. They function as
adjudicating bodies in disputes concerning a large number
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of economic and social affairs. In a sense they are
governmental bodies appertaining to the executive and not
to the judicial branch of the State, though in various
matters they are armed with judicial powers analogous to
those normally carried out by Courts of law".
12. In Jaswant Sugar Mills Ltd, Meerut vs.
Lakshmichand and others, AIR 1963 SC 677, the
Hon'ble Supreme Court has observed "Question whether a
decision is judicial or is purely administrative, often arises
when jurisdiction of the superior courts to issue writs of
certiorari is invoked. Often the line of distinction between
decisions judicial and administrative is thin; but the
principles for ascertaining the true character of the
decisions are well settled. A judicial decision is not always
the act of a judge or a tribunal invested with power to
determine questions of law or fact; it must however be the
act of a body or authority invested by law with authority to
determine questions or disputes affecting the rights of
citizens and under a duty to act judicially. A judicial
decision always postulates the existence of a duty laid upon
the authority to act judicially. Administrative authorities are
often invested with authority or power to determine
questions, which affect the rights of citizens".
13. In Kihoto Hollohon vs. Shri Zachilhu, AIR
1993 SC 412, the Hon'ble Supreme Court referring to its
earlier decision in Harinagar Sugar Mills Ltd. vs. Shyam
Sunder Jhunjhunwala, AIR 1961 SC 1669, set out a
test to determine whether an authority exercising
adjudicatory powers is a Tribunal or not;
....there is a lis an affirmation by one party and
denial by another and the dispute necessarily
10
involves a decision on the rights and obligations
of the parties to it and the authority is called
upon to decide it, there is an exercise of judicial
power. That authority is called a Tribunal, if it
does not have all the trappings of a Court.
14. In Sudershan Singh Bedi vs. Additional
District Magistrate, Varanasi and Others, Allahabad
Rent Cases, 1993 (1) 121, the Division Bench of the
Hon'ble Allahabad High Court, while dealing the controversy
of maintainability of Special Appeal under U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972, has observed, "The word "Tribunal" has not been
defined under this Act, but now it is settled principle of law
that a tribunal is a body or an authority which is invested
with the judicial power to adjudicate on question of law or
fact affecting the right of parties in a judicial manner". In
para 15, it was observed, "The declaration of vacancy by
Rent Control and Eviction Officer contemplates pleadings
and evidence and the Rent Control and Eviction Officer is
invested with the power of a Civil Court in regulating the
procedure for taking evidence etc. He is also to determine
the dispute after taking into account the objections raised
by the parties and has to pass reasoned order". In these
circumstances, it was held that the Rent Control and
Eviction Officer acts as a Tribunal and order of the Rent
Control and Eviction Officer shall be treated as an order of
Tribunal.
15. In Pratappur Sugar and Industries Limited,
Pratappur, District Deoria vs. Deputy Labour
Commissioner, U.P. Gorakhpur Region, Gorakhpur
and others, [(2000) 3 UPLBEC, 2161], the Division
Bench of Hon'ble Allahabad High Court has observed that
the dictionary meaning shows that tribunal is a body
11
authorized by law to decide disputes and impart justice.
The Hon'ble Division Bench referred to the judgment of
Hon'ble Apex Court in Durga Shankar Mehta vs.
Raghuraj Singh, AIR 1950 SC 188, in which it was held
that the expression "Tribunal" as used in Article 136 of the
Constitution of India meant the same thing as Court but
includes within its submit adjudicating bodies, provided
they are constituted by State and are invested with judicial
power as distinguished from purely administrative or
executive functions. The Hon'ble Division Bench referred
the decision of Hon'ble Apex Court in Hari Nagar Sugar
Mills vs. Shyam Sunder, AIR 1961 SC 1669, in which
the Hon'ble Apex Court has held that by "Tribunal" is meant
those bodies of men who are appointed to decide
controversies arising under certain special laws. The
Hon'ble Division Bench also referred the judgment of
Hon'ble Constitution Bench in Engineering Mazdoor
Sabha vs. The Hind Cycles Ltd., AIR 1963 SC 874, in
which the Hon'ble Apex Court has held, "....The expression
"a court" in the technical sense is a Tribunal constituted by
the State as a part of the ordinary hierarchy of courts which
are invested with the State's inherent judicial powers. The
tribunal as distinguished from the court, exercises judicial
powers and decides matters brought before it judicially or
quasi-judicially, but it does not constitute a court in the
technical sense. The tribunal, according to the dictionary
meaning, is a seat of justice; and in the discharge of its
functions, it shares some of the characteristics of the court.
A domestic Tribunal appointed in departmental
proceedings, for instance, or instituted by an industrial
employer cannot claim to be a tribunal under Article
136(1). Purely Administrative Tribunals are also outside the
scope of the said Article. The Tribunals which are
12
contemplated by Article 136(1) are clothed with some of
the powers of the courts. They can compel witnesses to
appear, they can administer oath, they are required to
follow certain rules of procedure: the proceedings before
them are required to comply with rules of natural justice,
they may not be bound by the strict and technical rules of
evidence, but, nevertheless, they must decide on evidence
adduced before them; they may not be bound by other
technical rules of law, but their decisions must,
nevertheless, be consistent with the general principles of
law. In other words, they have to act judicially and reach
their decisions in an objective manner and they cannot
proceed purely administratively or base their conclusions on
subjective tests or inclinations. The procedural rules which
regulate the proceedings before the tribunals and the
powers conferred on them in dealing with matters brought
before them, are sometimes described as the "trappings of
a court" and in determining the question as to whether a
particular body or authority is a tribunal or not, sometimes
a rough and ready test is applied by enquiring whether the
said body or authority is clothed with the trappings of a
court". In para 8, it was observed, ".....it would thus be
noticed that apart from the importance of the trappings of a
Court, the basic and essential condition which makes an
authority or a body a tribunal under Article 136, is that it
should be constituted by the State and should be invested
with the State's inherent judicial power...". The Hon'ble
Division Bench also referred to the judgment of Hon'ble
Constitution Bench of the Supreme Court in Associated
Cement Companies vs. P.N. Sharma and another, AIR
1965 SC 1595, wherein, it was held, ".....Judicial functions
and judicial powers are one of the essential attributes of a
sovereign State, and on considerations of policy, the State
13
transfers its judicial functions and powers mainly to the
Courts established by the Constitution but that does not
affect the competence of the State, by appropriate
measures, to transfer a part of its judicial powers and
functions to tribunals by entrusting to them the task of
adjudicating upon special matters and disputes between
parties. It is really not possible or even expedient to
attempt to describe exhaustively the features which are
common to the tribunals and the Courts, and features
which are distinct and separate. The basis and the
fundamental features which is common to both the Courts
and the tribunals is that they discharge judicial functions
and exercise judicial powers which inherently vest in a
sovereign State.
In considering the question about the status
of any body or authority as a Tribunal under
Article 136(1) the main test to be applied is
whether the body or authority has been
constituted by the State and has been clothed
with the State's inherent judicial power to deal
with disputes between parties and determine
them on the merits fairly and objectively".
16. Applying the test laid down by the Hon'ble
Supreme Court, the Division Bench has held that an
Additional/ Deputy Labour Commissioner while exercising
power under sub-clause (6) of Clause LL of the Standing
Orders functions as a Tribunal.
17. Before the Division Bench of the Hon'ble
Allahabad High Court in Mohd. Arif vs. M/s. Mirza Glass
Works and Others, (2005)(107) FLR (129), the
question for consideration was as to whether the Prescribed
Authority under the Payment of Wages Act, 1936 is a
Tribunal. The Division Bench extracted Section 15 (1) and
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Section 18 of the Payment of Wages Act, 1936, which are
as below:-
"15. Claims arising out of deductions from
wages or delay in payment of wages and
penalty for malicious or vexatious claims.--
(1) The State Government may, by
notification in the Official Gazette, appoint
[a presiding officer of any Labour Court or
Industrial Tribunal, constituted under the
Industrial Disputes Act, 1947 (14 of 1947),
or under any corresponding law relating to
the investigation and settlement of industrial
disputes in force in the State or ] any
Commissioner for Workmen's Compensation
or other office with experience as a Judge of
a Civil Court or as a stipendirary Magistrate
to be the authority to hear and decide for
any specified area all claims arising out of
deductions from the wages, or delay in
payment of wages, [of persons employed or
paid in that area, including all matters,
incidental to such claims............."]
"Section 18 provides for powers of
authorities appointed under Section 15
which is extracted below:-
18. Powers of authorities appointed
under Section 15.--Every authority
appointed under subsection (1) of Section
15 shall have all the powers of a Civil Court
under the Code of Civil Procedure, 1908 (5
of 1908), for the purpose of taking evidence
and of enforcing the attendance of witnesses
and compelling the production of documents
and every such authority shall be deemed to
be a Civil Court for all the purposes of
Section 195 and of [ChapterXXVI of the
Code of Criminal Procedure, 1973(2 of
1974).]"
18. The Division Bench has held, "From a conjoint
reading of Section 15 (1) with Section 18 of the Payment of
Wages Act, 1936, it is clear that the authority empowered
to decide claims arising out of deduction from wages is
entrusted with all the powers of a Civil Court under the
Code of Civil Procedure for the purposes of taking evidence
and for attendance and compelling the production of
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documents. Thus, the said authority has the trapping of
Court and is a Tribunal. Any order, thus passed by the
authority, under Section 15 of the Payment of Wages Act,
1936, is an order passed by Tribunal. The Special Appeal
being barred against an order of one Judge exercising
Jurisdiction under Article 226/227 of the Constitution
arising out of a writ petition from an order of the Tribunal,
the preliminary objection raised by Counsel for the
respondents has substance. The appeal is barred under
Chapter-VIII, Rule 5 of the Rules of the Court and is
dismissed as not maintainable".
19. Reverting to the question whether this Special
Appeal is maintainable or not, we must consider the
scheme of the Act. The Payment of Gratuity Act has been
passed to provide for a scheme for the payment of gratuity
to employees engaged in factories, mines, oilfields,
plantations, ports, railway, companies, shops or other
establishments and for matters connected therewith or
incidental thereto. Object of the Act is to ensure that a
workman is rewarded for the honest, efficient and faithful
service that he renders for his employer's benefit. The
"Controlling Authority is appointed by the Government. The
Controlling Authority, after due enquiry and after giving the
parties to the dispute a reasonable opportunity of being
heard, determines the matter in dispute. 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) lays down that enquiry under this Section shall
be a judicial proceeding within the meaning of Sections 193
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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 and
to determine them on merits. The "Controlling Authority" is
appointed by the State and is invested with judicial power
as distinguished from purely administrative or executive
function. Therefore, under the provisions of the Payment of
Gratuity Act, 1972, the proceedings before the Controlling
Authority have the "Trapping of a Court".
20. Applying the test laid down by the decisions as
abovementioned, it is clear that the "Controlling Authority"
while exercising the power under the Payment of Gratuity
Act, 1972, particularly Section 7 thereof, acts as a
"Tribunal".
21. A right of appeal is a creature of a statute and a
litigant does not have any vested right to prefer the appeal
against an order or judgment unless such a right is
conferred by law.
22. For the reasons discussed above, the instant
intra-court appeal is not maintainable under Rule 5 of
Chapter VIII of the Allahabad High Court Rules, 1952.
23. Consequently, the present Special Appeal is liable
to be dismissed as not maintainable. The Special Appeal is
accordingly dismissed at the stage of admission.
________________
Ritu Bahri, C.J.
___________________
Alok Kumar Verma, J.
Dated: 08.04.2024
JKJ/PANT
