WP(C) 4699/2003 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Ms. A. Bhattacharjee, learned counsel for the petitioner a s well as Mr. B. Chakraborty, learned counsel for the sole respondent. 2. This writ petition is directed against the judgment and award da ted 13.5.2003 passed by the Assistant Labour Commissioner (Central), Dibrugarh - cum- Controlling Authority under Payment of Gratuity Act, 1972, Dibrugarh by whi ch the respondent has been awarded interest of 9% per annum in respect of the gr atuity amount of Rs. 42,466,46 for the period from 1.2.1992 to 31.12.2000. The a mount of interest as calculated by the Assistant Labour Commissioner (ALC) stand s at Rs. 34,079.33. 3. The facts necessary for disposal of the writ petition are alread y there in the impugned judgment and order. The respondent had claimed his conti nuous service under the petitioner from 17.9.55 to 1.2.1992 and calculated the g ratuity on that basis. However, the ALC has calculated the service period from 1 8.9.1962 to 1.1.1964 as in the interregnum the respondent was not in service of the petitioner. He had left the job on 18.9.1962 on his own will and thereafter he was given fresh appointment from 1.1.1964. Accordingly, it has been held that his claim for gratuity from 17.9.1955 to 1.2.1992 is not justified. 4. It appears that the respondent also objected to his retirement f rom service on attaining the age of superannuation with effect from 1.2.1992 as reflected in the impugned judgment and order. He had filed Civil Suit claiming c ontinuity in service on the basis of another date of birth. Such dispute also co nsumed much time and eventually the petitioner paid the gratuity amount to the r espondent in the year 2000. It appears that there was proceeding before the Apex Court also and on conclusion of the said proceeding, the engaged counsel of the respondent advised him to vacate the quarter allotted to him before 31.12.2000. Thereafter, he vacated the quarter. Accordingly, the petitioner paid the gratui ty on the basis of calculation arrived at for period from 1.1.1964 to 1.2.1992. 5. On the basis of the above fact situation, Ms. Bhattacharjee, lea rned counsel for the petitioner submits that in view of the on going litigation, gratuity could not be paid to the respondent and it was only after final adjudi cation of the proceeding before the Apex Court and upon vacation of the quarter, the gratuity amount was paid to the respondent. She has seriously questioned th e jurisdiction of the learned ALC in trying the adjudication. She submits that s ince the establishment in question has its only establishment at Dibrugarh with no other establishment in any other State, as per the provision of Section 2 of the Payment of Gratuity Act, 1972, the ALC could not have any jurisdiction to ad judicate the matter. 6. Countering the above argument, Mr. Chakraborty, learned counsel for the respondent submits that since the ALC has arrived at the particular calc ulation towards payment of interest, this Court considering the aforesaid act is a beneficiary steps to the litigants will be reluctant to interfere with the sa me. 7. As regards the single establishment of the petitioner, he has re ferred to the statements made in paragraph 1 of the writ petition so as contend that there are two establishments of the petitioner. In the said paragraph a sta tement has been made that the petitioner’s Tea Estate has its head office at Kol kata and registered office at Dibrugarh. 8. Mr. Chakraborty, learned counsel for the respondent has also rai sed the question of maintainability of the writ petition, there being alternativ e remedy by way of an appeal to the appropriate Government as provided under Sec tion 7 (7) of the Payment of Gratuity Act, 1972. 9. As regards the question of maintainability of the writ petition, Ms. Bhattacharjee, learned counsel for the petitioner has submits that once the writ petition has been admitted for hearing, now after lapse of more than 8 yea rs, the petitioner should not thrown out of this Court to pursue alternative rem edy. She has placed reliance on the decisions of the Apex Court reported in AIR 1987 SC 2186 (Dr. Smt. Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya , Sitapur (UP) & Ors.) so as to contend that when the question of very jurisdict ion of the authority in passing the order is involved, there cannot be any bar i n exercising the writ jurisdiction. 10. I have considered the entire materials on record. As regards the question of jurisdiction, the point was specifically raised by the petitioner T ea Estate, about which, the ALC has mentioned in the impugned judgment and award . Referring to the written statement of the management filed on 27.3.2001, the A LC has recorded the jurisdictional issue raised by the petitioner. In the said w ritten statement, it was contended on behalf of the petitioner that appropriate Government as defined in Section 2(a) of the Payment of Gratuity Act, 1972 being the State Government, the ALC could not have entertained the claim of the respo ndent. 11. Although the aforesaid plea raised on behalf of the petitioner w as recorded in the impugned judgment and order, but the same has not been answer ed. Section 2 (a) defining the term appropriate Government states that the sam e would mean (i) in relation to an establishment - (a) belonging to, or under th e 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 , (ii) in any other case, the State Government. 12. While according to the respondent, as per the own admission of t he petitioner, it has got establishment out of the State i.e. the State of Assam , learned counsel for the petitioner has submitted that the statement made in pa ragraph 1 of the writ petition does not mean that the petitioner’s Tea Estate ha s got another establishment at Kolkata. Paragraph-1 of the writ petition is quot ed below: That, the petitioner is the Management of the Jalannagar Tea Estate which is ow ned by M/s Etholweld Estate Pvt. Ltd. having its Head Office at 25 Ballyguag Cir cular Road, Kolkata with Registered Office at Dibrugarh. Its Manager represents the said Writ Petitioner. 13. From the above, what is seen is that in the above paragraph, the re is no indication as to the petitioner’s establishment having branch in more t han one State. The petitioner’s Tea Estate is owned by M/s Etholweld Estate Pvt. Ltd having its head office at Kolkata, but the establishment and for that matte r the Tea Estate is located at Dibrugarh, admittedly the said Tea Estate does no t have any other branch in any other State other than the State of Assam. 14. It is in the above context, it will have to be considered as to whether the establishment with which we are concerned in this proceeding cannot be said to be an establishment having branch in more than one State. The Tea Est ate in question is located in the district of Dibrugarh and the establishment of the said Tea Estate is also at Dibrugarh in the State of Assam. Admittedly the said establishment does not have any other branch in any other State. Irrespecti ve of the said position, the ALC assumed jurisdiction to try the matter. 15. Once it is held that the ALC did not have jurisdiction to try th e matter, the question of alternative remedy being available under Section 7 (7) of the Act will have to be considered in the touchstone of the jurisdictional i ssue, by way of judicial review under Article 226 of the Constitution of India. In Dr. Smt. Kuntesh Gupta (supra), the Apex Court dealing with the ground of ava ilability of alternative remedy made the following observation. 12. The next question that falls for our consideration is whether the High C ourt was justified in dismissing the writ petition of the appellant on the groun d of availability of an alternative remedy. It is true that there was an alterna tive remedy for challenging the impugned order by referring the question to the Chancellor under Sec. 68 of the U.P. State Universities Act. It is well establis hed that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the Hi gh Court should not refuse to exercise its jurisdiction under Art. 226 of the Co nstitution on the ground of existence of an alternative remedy. In the instant c ase, the Vice-Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vic e-Chancellor on review was a nullity; such an order could surely be challenged b efore the High Court by a petition under Art. 226 of the Constitution and, in ou r opinion, the High Court was not justified in dismissing the writ petition on t he ground that an alternative remedy was available to the appellant under Sec. 6 8 of the U.P. State Universities Act. 13. As the impugned order of the Vice-Chancellor is a nullity, it would be usele ss formality to send the matter back to the High Court for disposal of the writ petition on merits. We would, accordingly, quash the impugned order of the Vice- Chancellor dated March 7, 1987 and direct the reinstatement of the appellant for thwith to the post of Principal of the Institution. The judgment of the High Cou rt is set aside and the appeal is allowed. There will, however, be no order as t o costs. 16. Above apart, once the writ petition was admitted for hearing way back in 2003, it will not be appropriate to non-suit of the petitioner on groun d of there being alternative remedy after about more than 8 years. That apart, t here is no absolute bar of writ jurisdiction even in the matter of alternative r emedy. It is the sound discretion which is exercised by the Writ Court towards e ntertaining a matter or not. In the instant case, the writ petition having been admitted and the question of jurisdiction having been raised, I am of the consid ered opinion that the plea of alternative remedy cannot be sustained so as to tu rn down the very jurisdictional issue raised by the petitioner. 17. Above apart, the award itself indicates that there was various l itigation by and between the parties. It is the settled position of law that in case of occupation of allotted quarter by an employee beyond the permissible lim it of period, the employer is entitled withhold gratuity. It is on record that a fter termination of the proceeding before the Apex Court, the engaged lawyer of the respondent instructed him to vacate the quarter before 31.12.2000. It was on the basis of such assurance furnished by the respondent to vacate the accommoda tion, the employer paid the gratuity to him on the basis of the calculation arri ved at taking into account the period in question from 1.1.1964 to 1.2.1992. The ALC has held that the gratuity is required to be calculated on the basis of the said period of service and not for the period from 17.9.1955 to 1.2.1992. 18. Above being the position, I am of the considered opinion that th e writ petition deserves to be allowed on the ground of lack of jurisdiction of the ALC to pass the impugned order and the quarter being occupied by the respond ent beyond the permissible limit. Consequently, he was not entitled to receive t he gratuity before vacation of the quarter. 19. The writ petition is allowed. The impugned order dated 13.5.2003 passed by the ALC in Payment of Gratuity Claim Case No. 47(2)/2001-D/A stands s et aside and quashed. There shall be no order as to costs.