<WGlf: BFEm >^ •\.v. i: . IN THEHIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH W.P. N0. f^S^ /2006 PETITIONER Managing Director, Bharat Aluminum Company \^...-""^ -.. Limited (BALCO), Balco Naaar, Kort ...•••''<ftS,<<'°^-''" ..••"' .<S<:^/'7l^···"' ••<An^'.<'' f v.'--"^t" ....•••" Balco Nagar, Korba, N.i7-<\Y^..-' District Korba, Chhattisgarh ^' .f^ '-^ VERSUS RESPONDENTS : ^ -"-"--'^^B s-ri'^5'!; £^S.^ i^^A-^y^i ^y^s^ '^y^^yyi^i', A^ A^ ^y ^^^6' cy w^ ^- ^' r 1. Controlling Authority under Payment o'f Gratuity Act, 1972 O/o. Assistant Labour Commissioner, Korba, District Korba, Chhattisgarh /I. Lalit Singh Kanyal, Employment No. (2272), R/o. 401/31-B, Balco Nagar, Korba, District Korba, Chhattisgarh 3. Bharat Aluminium Mazdoor Sangh (INTUC), •- Through: Its General Secretary, Balco Nagar, Korba, District Korba, Chhattisgarh State of Chhattisgarh, Through: The Secretary, Government of Chhattisgarh, Department of Labour, D.K.S. Bhawan, Mantralaya, Raipur, Chhattisgarh WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITION OF INDIA AFA HI®HCOURTOFCHHATHS6ARH AT BILASPUR . P. No. 1594 of 2006 Petitioner Versus Managing Director, * Bharat Aluminum Compcny Limited (BALCO) Controtiing Authority under Poyment of ©ratuityAct, 1972 O/o. Assistcmt Labour Commissioner & others Post for order on S^Ionuary.2W7 Sd/- SatishK.Agnihotn Judge /.. - / p •s^^^^^s \,' HI6H CGURT OF WWTTtSGAW AT BILASPUR W. P. No. 1594 yf 2QQ6 Petitioner Respondents Versus Managing &irector, Bharat Aluminum Compony Limited (BALCO) Controtting Authori'ty under Payment of Srotui-ty Act, 1972 O/o. Assistant Labour Commissioner & others SB: Hon'ble Mr. Justice Satish K. Agnihotri. J Shri N.5. |(a!e, Senior counset with Shri Abhishekh Sinha, counsel for +he petitioner. Shri V.V.S. Moorthy, t5eputy Advocate Seneral for the respondents No. 1 to 4. '. N.IC. Shukta, Senior counsel with Shri Rajeev 5hrivastoiva,counsel for the respondents No. 2 and 3. OR&ER (Passed on S day of January. 2007) 1. By tiiis petition under Article 226/227 of the Constitution of India, the petitioner has chailenged the validity of the impugned order dated 4.3.2006 (P/7) passed by the Controlling Authority under the Poiyment of.firatuity Act, 1972 Qiereinafter referred to as 'the Act, 1972'). 2. The indisputable facts of the case aw that the respondent No. 2 is an employee of the petitioner-Company. According to +he petitioner, @) respondent No.2 was upgraded to the post of Assistant Technical Officer vide order dateci 15th Juty, 2003 (P/l). By the notice dated 15 November, 2005 ff*/2), the petitioner wos intimated that he woutd attain the age of superannuation i.e. 58 years on 31 January, 2006. The respondent No. 2/employee thereafter moved on applica+ion on 7.1.2006 iP/3) for grant ofgratuity. 3. The. respondent No. 2/employee further filed a writ petition on 30.1.2006, bemq W. P. No. 513 of 2006, in this Court seeking a relief to quash the notice/order dated 15.11.2005 and to direct the petitioner herein to retire •!iie petitioner on completion of age of 60 years being a workman. Subsequently, the petition was dismis^d as wi-rtidrawn by the order dated 31.1.2006 y/4). 4. The respondent No. 2/employee filed an application P/6) before the Control!in9 Authority/respondent No. 1 to cancel his application for payment of gratuity. Thereafter, a complaint was filed by the r&spondent No. 2 before the Inspector under the provisions of Chhattis9ar+> Industrial Employment (Stondin9 Orders) Act, 1961 ciaiming himsetf to be a workman and that he was retired in violation of the applicabte standing orders. The respondent No. l/Controllin9 Authority under tiie Act, t972 passed the order on 4.3.2006 (P/7) that the le+ter of superannuation was in viotation of Section 4 (1) of the Act, 1972 ond the respondent No. 2 would continue tilt he superannuates at the 096 of 60 years as per Rule 5 (d) of the <^) Standin9 Orders. The petitioner wos further directed to encash the cheque submitted by the respondent No. 2 to the petitioner as the payment of gratuity would accme on +he date of superannuation as per Rule 5 (d) of the Standing Orders. 5. Being aggrieved, the pstitioner has filed this petition impugning the order dated 4.3.2006 0?/7) passed by the respondent No. l/Controlling Authority on the following rounds:- (i) The impugned order wos bad 'm law as it was wholty without jurisdiction. (ii) The respondent No. 1 under the Act, 1972 has no power to adjudicate upon the status of the emptoyee or superannuation of any employee. (iii) The respondent No. 1 has furrtier no authorsty to direct refuncfof +he amount paid towards gratuity and provident fund and the order is contrary to the proyisions of the Rule 17 of the Payment of Sratuity (Central) Rules, 1972 (hereinafter referred to ois 'the Rules, 1972'). 6. Shri N.5. Kale, learned Senior counsel with Shri Abhishekh Sinha, leamed counse! appearing for the petitioner would submit, as stcted above. Leamed counse! would further contend -riiat the impu9ned order deserves to be set aside on the ground of being passed by the incompetent officer having no jurisdiction to pass such order. 7. Or. N.K. Shukla, leamed Senior counset with Shri Rajesv Shrivastava learned counsel appearing for the respondent No. 2 and 3 cnd Shri V.V.5. Murthy, leamed Deputy Advocate Senercsl cppearing for the respondents No. 1 and 4, per contra, would submit that the respondent fe^ t-^;, 1^ No. 1/Controlling Authority ho^ power to grant of peyment of gratuity and in the event, the gratui+y htis been paid wrongly before retirement of an employee, the respondent No. 1 has inherent power to direct refund of the gratuity. Since, -the re^ondent No. 1 has power to decide the payment of gratuity, the oncillary power to decide asto whether cin employee has been superannuated correctly or not vest in +he authority and •rfie order passed by the cuthority is competent, tegal ond valid. 8. Leamed counsel appearing for the respondents heavity relied on the decision of the Supreme Court in the coise of State of Puryab Vs. Laboir Court'. Jullundur and others and the decision of the Madras Hjgh Court in the case of Management of Pithavadien Vs. Author-ity under the Payment of Sratuity Act 1972 others . It was further contended that there is an ttltsrnative remedy prescribed under Section 7 (7) of the Act, 1972 and without resorting +o +he remedy under Section 7 (7) of the Act, 1972 of appeal to the State Sovernment, the petitioner has approached this Court. 9. I have heard leamed counsef for the parties and perused the pleadings and documents appended thereto. It is wel! settled that the Payment of ©ratuityAct is a self-contnined code incorporating all the essential provisions relating to payment of gratuity which coin be claimed under the Act, ond its provisions impliedty exclude recourse to any other statute for that purpose. In order to appreciate the dispute ••^as«@r^E~-" ^ST '-^.^ -. /' •^y^ raised in this petition, it is necessary to quote relevant provisions of the Act, 1972 and Rule 17 of the Rules, 1972. The relevant provisions are quoted below, Section 3 of 1he Act, 1972 reads as wider:- "5ection 3. ConlroSling cvthonty.-The Appropriate Sovemmeni' m<y. by iwtificafion, appoint any officer to be a conirollmg aulfiority, who ^ial! be responsib'ie for the administrwtiein of •H^is Act and cfifferent authorities mcy be appomi'ed for different areas." Secfwn 4 of the Act, 1972 ivadsas tinder:- "Section 4. Payment of gratuity.- (1) Srwhiily shal! be payable to an smployee on Ihe termination of his employment after he has rendered continues service for not less -thcn five yeesrs. - (a) on his superannuation, or (b) on his retirement or resignafion, or (c) on his deaifi or cSisabkment due to accidenf or disease Provided that the completion of continuous service of five years shatl not be necessary where the termination of the employment of ony emptoyee is due to death or disablement:" *** (3) *** (4) *** (5) *** (6) *** *** *** *** *** *** *•<[* *** *** *** *»* Sed'jpn 7 of Ihe Act. 1972 reads as under:- "Section 7 DelTermination of the amount of giwiuiiy.- (1) A person vuho is eligibk forpoymwit ofgralviiy under •this Act or anyperson authorised, in writmg to act on his behalf d^all send a wrfffen applicafion to ihe emphyer. ivi'fhffi such fime and in 6 \^ IA' such form, as may be prescribed, for payment of ajch gr'a-tiiity." *** *** *** *** (2) *** (3) *** (4) (a) If ihere is any c/ispute to the amounf of gra1vi1y payable to an emphyee under this Act or as to iiie admissibilrty of any chim of. or m relation to, an emphyee for poiyment of gratuity. or as to the fserson entitled to receive 1he gratuity, ihe emphyer shall deposri- wiih the confrollinj aiithori'fy such amountashe admits to bepayable byhim asgralus-ty. Zf***1 l(b) Where there is a disptjts wi-th regard to arsy mattei- of matters ^edfied in dause (a). -fhe employer or employee or any o'ffier person raising the dispute may make an <pplicafion to itie controlling authoriiy for deciding ifie tSispute.] (c) Jhe controlling authority ^sall, after due inquiry and after giving fhe parties to the di^sute a reasonabfe opportuniiy of being heard, defermine ihe matter or matters in dsspute wid ff. as a result ofsuch inquiry any amount is found to be pcyabk to 1tie emphyee, the controtling au'thoriiy shall direct the employer to pay such amount or. as ifie ccsse may be, ajch amounf as reduced by the amount afreacty deposited by the employer.J *** **» *** *** )t*X *** (7) Any person aggrieyed by an or-der under sub-section (4) my, wiifiin sixfy days froin Ihe dafe of Ifie recsipt of #ie order, prefer an appeal to ihe appropriafe Sovemmsnfor siich oiher authorrty as nwy be specified by fhe appr'opriate Sovemmeni- in ihisbehalf; Provided ifiaf itie cpprwpriate Sovemwent or the <yspellwte aufhoriiy, as the case may be. mcy. if it is satisfied 4' fhaf the appelhnt was prevented by suff'icient cxiuse from preferfing the appeal within -the said period of axty days, extend Ihe saidperiod by a furiher period of sixty days: providect fur'thef Ihat no ofspeal by an employer diall be admitfed unkss at 1he time of preferfhig fhe cppeal. Itie appellant eilher produces a cerfificate of the contfwlling euthori'ty fo the effecl- Ihat ihe appellant has deposited wrth him an amount equal fo the amount of gratuity required to be deposited unckr sub-section (4), or deposits with the appelhle aulhority such amoun+.J (8) The cppropriafe Govemment or the appelhte aultiority, as fhe cax may be. may. after g'w'ing Ihe par+ies to ifie afspeaf a reasonable opporfunity of being heard, confirm, modify, or reverse fhe decision of the controtling ouihorrty. Rule 17ofthe Ruks. 1972 i'eaets as under:- "Ruk 17. Di'r'ection for paymenf of gratuity.- Ifa finding is recorded wider sub-ruk (4) of rule 11 that the cpplicant is entifled to paymenf of gfatuity under 1he Aci. fhe controlling authority diall issue a noties fo 1tie employer concerned m Form R' specifymg Ihe airsount piryabk wid directing pcyment Itiereof to fhe applicant under in+imation to •the controlling au'thorily within Ifiirty days from the date of the recelpf of the notice by -the emphyer. A copy of the notice shall be endorsed to the applicant eniphyee, nominee or lega! heir, as 1tie case mcy be." 10. A bare reading of the provisions stated hereinabove makes it clear +hot the Controtling Autiiority is responsible for administration of this Act which proyides for payment of gratuity. Section 4 of the Act, 1972 provides asto when an employee is entitled the pcyment of •'^ ?;?;^^i^^^^^^^ ';^^v^:^^^K^2^ ?^^S gratuity on his ajperannuation or his retirement or resignation or on his dedth or disaiblement due to accident or cfisease. Sec+ion 7 of the Act, 1972 provides for determination of 'flie amount of gratuity to an employee who is eligible for gnnit of 9ratuity under 'the provisions of the Act, 1972. It further provides for resolution of dispute with regard to amount of 9ra+uity payable to an employee under the Act, 1972. Sub-section (7) of Section 7 of -rtie Act, 1972 provides for the appeal with regard to determination of amount of gratuity under sub-section (4) of Section 7 of the Act, 1972 only. If the entire Act is read as a whole. it does not provide for determination of the age of superonnuation. Tlie basic dispute dSto tAetfier the re^ondent No. 2 wcis a workman or not, is not within the scope of jurisdiction of the Controtling Autiiority under the Act, 1972. 11. TTie Supreme Court in +he case of Puryab "s. Labour Court, Jutlundur and others (supro) helct that the payment of grotuity act being a complete code contains detailed provisions covering all the essential features of a scheme for payment of gralufty, it creates the right of pdyment of gratuity, indicafes when the right wilt accrue, and lays down the principies for quontification of the gratuity. It provides further for recovery of •the amount, ond contains an e^eciat provision -rtiat compound interest at nine per cent per annum wiit be le on deioyed payment. Fur+her, for the enforcement of its pr-ovisions, the Act provides for the appointment of a Controlling -1.. Authority, wrfio is entrusted with the task of administering the Act. The futfillment of the rights and obtigations of the partfes are made his responsibility, and he has been invested with an amplitude of power for the -full discharge of that responsibiiity. 12-The decision of the Madras 1-ligh Court in the case of Management of Pithavadian Vs. Controiting Authority undsr the Payment of fratuity Act 19^ Madras and others (supra) is not appiicabte to fad-s of the case. In that case.. the main question was applicability of the Payment of ©ratuityAct to the Architects ond Planners asto the interpretation of Section 1 (3) of the Act, 1972. 13.In vfew of the above provisions and the obseryations of the Supreme Court that the Act, 1972 does not provide for adjudica+ion of the dispute with regard to the age of superannuation, particuto.rly, in the facts of the case when accordin9 +o the employee, ttie employee iS a workman and according to the petitioner, by order dated 15.7.2003, he has been upgradec! to the post of Assistant Technical Officer and is not a workman. This dispute can be adjudicated upon under some other provisions,not under this Act. 14.In regard to submission of learned counsel for -the respondents •tiiat an aiternative statutory appeal is provicied under the Act, on reading of the provisions of the dppea! under sub-section (7) of Section 7 of the Act, 1972, it is clear that the appeal is provided only in respect of determination of the gratui-ty amount. In the present case, question . ^niM&a r- 10 l^ "V involved is asto whether 1fte employee i.e. respondent No. 2 is a workman to be entitied for superannuation on athiining the age of 60 years or a supervisor, whose age of super'annuation is 58 years. The refusat to entertain the writ petition on the ground of avaiiability of alternative statutory remedy is discretionary and in the facts and circumstances of the case w^ien the question involved is the competence of the Controlling Authority, I am of tiie considered opinion that this petition omnot be thrown on the 9round of avaitabitity of alternative statutory remedy. 15.As a resuit and for the reosons stated hereinaboye, the impugned order dated 4.3.2006 (P/7) is set aside as being passed by •Hie incompetent officer i.e. Controlling Authorit^. Howisver, without expressing any opinion on the merit of the case asto v^e^her the employee/respondent No. 2 is a workman or not, the respondent No. 2/employee is at liberty to opproach on appropriate forum for determination of his status. 16.The writ petition is accordingly aillowed. No order as to costs. Sd/- SatishK.Agnihotri Judge 1. (1930) 1 SCC 4 2. (1984 LAB.I. c.1298) Babiu &-.