Case Note & Summary
The petitioner, Chief Executive Officer of Zilla Parishad, Beed, challenged the order dated 23/08/2011 passed by the Assistant Labour Commissioner and Controlling Authority under the Payment of Gratuity Act, 1972 in P.G.A.No.19/2010. The respondent No.2, Madhukar Dhondiram Nagargoje, a retired employee, had claimed gratuity. The Controlling Authority allowed the claim. Instead of filing an appeal under Section 7(7) of the Gratuity Act, the petitioner directly approached the High Court under Articles 226 and 227 of the Constitution. The Court examined the short point whether the statutory remedy of appeal under Section 7(7) can be bypassed. The Court noted that the proviso to Section 7(7) provides for an appeal to the appropriate government or appellate authority. The Court held that the writ petition is not maintainable as the petitioner has an efficacious alternative remedy of appeal which has not been exhausted. The Court dismissed the writ petition, leaving it open to the petitioner to file an appeal within four weeks from the date of the order, if so advised. The Court also observed that the period during which the writ petition was pending shall be excluded for computing limitation.
Headnote
A) Gratuity Law - Alternative Remedy - Exhaustion of Statutory Remedy - Payment of Gratuity Act, 1972, Section 7(7) proviso - The petitioner challenged the order of the Controlling Authority under the Gratuity Act directly by way of writ petition without availing the statutory remedy of appeal under Section 7(7) proviso. The Court held that the writ petition is not maintainable as the alternative remedy of appeal is efficacious and must be exhausted before invoking writ jurisdiction. (Paras 3, 7-8)
Issue of Consideration
Whether the provisions of Section 7(7) read with the proviso thereunder of the Payment of Gratuity Act, 1972 can be bypassed to invoke the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
Final Decision
The writ petition is dismissed as not maintainable due to availability of alternative remedy of appeal under Section 7(7) of the Payment of Gratuity Act, 1972. The petitioner is at liberty to file an appeal within four weeks from the date of the order, and the period during which the writ petition was pending shall be excluded for computing limitation.
Law Points
- Alternative remedy
- Exhaustion of statutory remedy
- Writ jurisdiction
- Payment of Gratuity Act
- 1972
- Section 7(7) proviso
Case Details
2013 LawText (BOM) (11) 20
Writ Petition No.1855 of 2012
Mr. S.S. Dambe for petitioner; Mr. N.B. Patil, A.G.P. for respondent No.1; Mr. N.L. Dhobale h/f. Mr. B.R. Kawre for respondent No.2
Chief Executive Officer, Zilla Parishad, Beed
1. The Assistant Labour Commissioner, and Controlling Authority (Under Payment of Gratuity Act 1972), Latur; 2. Madhukar Dhondiram Nagargoje
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Nature of Litigation
Writ petition challenging the order of the Controlling Authority under the Payment of Gratuity Act, 1972.
Remedy Sought
Petitioner sought to quash the order dated 23/08/2011 passed by respondent No.1 in P.G.A.No.19/2010.
Filing Reason
Petitioner was aggrieved by the order of the Controlling Authority directing payment of gratuity to respondent No.2.
Previous Decisions
The Controlling Authority passed an order on 23/08/2011 allowing the gratuity claim of respondent No.2.
Issues
Whether the writ petition is maintainable when the petitioner has an alternative remedy of appeal under Section 7(7) of the Payment of Gratuity Act, 1972.
Submissions/Arguments
Petitioner argued that the order of the Controlling Authority is erroneous and challenged it directly by way of writ petition.
Respondents contended that the petitioner should have availed the statutory remedy of appeal under Section 7(7) of the Gratuity Act.
Ratio Decidendi
When a statutory remedy of appeal is provided under the Payment of Gratuity Act, 1972, the writ jurisdiction under Articles 226 and 227 of the Constitution should not be invoked without exhausting the alternative remedy. The proviso to Section 7(7) provides an efficacious appellate remedy.
Judgment Excerpts
Short point that arises for my consideration is as to whether the provisions of Section 7(7) r/w. the proviso thereunder of the Gratuity Act can be bypassed to invoke the writ jurisdiction of this Court under Article 226 and 227 of The Constitution of India.
In the light of the above, this petition is not maintainable and is dismissed.
Procedural History
The Controlling Authority under the Payment of Gratuity Act passed an order on 23/08/2011 in P.G.A.No.19/2010. The petitioner filed Writ Petition No.1855 of 2012 before the Bombay High Court, Aurangabad Bench, challenging the order. The High Court dismissed the writ petition on 27/11/2013 on the ground of alternative remedy.
Acts & Sections
- Payment of Gratuity Act, 1972: Section 7(7)
- Constitution of India: Articles 226, 227
