Soumitra Pal, J.
1. This writ petition was filed by the Food Corporation of India (for short 'FCI') challenging the order dated 31st December, 2004 passed by the Assistant Labour Commissioner (Central) Kolkata II and the Controlling Authority (for short 'the controlling authority') under the Payment of Gratuity Act, 1972 (for short 'the Act') directing payment of gratuity to the respondent No. 2 ('the said respondent' for short), the employee, under the Act on the following grounds as stated in the writ petition:
I) For that the Assistant Labour Commissioner-II (Central) was wrong in passing the order dated 31.12.2004 directing the petitioner to pay further amount of Rs. 1,15,024.55 paise towards gratuity to the Respondent No. 2.
II) For that the Assistant Labour Commissioner-II (Central) while passing the order dated 31.12.2004 in connection with Case No. 48/71/2003-ALC-II did not take into consideration at all that the Respondent No. 2 did not comply with the statutory obligation as such he cannot claim the benefit of continuity service in Food Corporation of India even after coming on deputation from the service of Government of West Bengal to FCI.
III) For that the Assistant Commissioner (Central) while passing the order dated 31.12.2004 in connection with Case No. 48(71)/2003-ALC-II did not take into consideration at all that the Respondent No. 2 did not comply with the statutory obligation as such he cannot claim the benefit of continuity service in FCI even after coming on deputation from the service of Government of West Bengal to FCI.
IV) For that the Assistant Labour Commissioner (Central) failed to consider that the Respondent No. 2 while being absorbs in F.C.I. did not deposit the amount of gratuity received by him from the Government of West Bengal and as such he is not entitled to receive the full gratuity amount from the FCI taking into account his total length of service from Government of West Bengal to till retirement from the service of FCI.
V) For that Respondent Authority failed to consider the case of the petitioners in proper perspective of the matter, particularly in view of different circular issued in this regard from time to time and as such the said orders passed by the Respondent Authority is totally illegal and unwarranted in the eye of law and same ought to be set aside and quashed.
2. It is to be noted that while the writ petition W.P. No. 5354(W) of 2005 was being heard, Hon'ble The Chief Justice passed an order on 27th January, 2006 in W.P. No. 232 14(W) of 2005 directing that all similar matters should be heard analogously.
3. At the outset Mr. L.K. Gupta, learned senior advocate appearing on behalf of the said respondent submitted that as the controlling authority or adjudicatory authority and the appellate authority had been empowered under the Act to deal with all issues and the alternative remedy provided therein was efficacious, the writ petition was not maintainable. Relying on the provisions of Order XIV Rule 2(2) of the Code of Civil Procedure (for short 'the Code'), as well as on the Judgment of the Apex Court in Uttar Pradesh State Bridge Corporation Limited v. Uttar Pradesh Rajya Setu Nigam S. Karmachari Sangh reported in : (2004)IILLJ9SC , it was submitted that as the order impugned had not been challenged on the ground that the controlling authority lacked jurisdiction or there was failure of compliance of the principles of natural justice or any of the provisions of the Act was ultra vires, the issue regarding the availability of alternative remedy should be decided at the threshold. Referring to the facts it was submitted that the said respondent, now a superannuated employee of FCI, was an employee of the Government of West Bengal (for short 'the State'). On 1st August, 1967 under instruction of the State he was sent on deputation to FCI. The said respondent continuously worked on deputation till 1st July, 1984 when he was absorbed in the FCI. On account of gratuity he received a sum of Rs. 4,878/- from the State. On 30th June, 2000, on his retirement, the FCI paid a sum of Rs. 22,519.20 as gratuity. As according to the said respondent, the quantum of gratuity paid by FCI was less than what he was entitled to receive, on 7th May, 2003 he disputed the same by submitting Form 'I' under Section 7(4) of the Act read with Rule 7(i) of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as the Rules). Since FCI did not respond, the said respondent on 3rd June, 2003 submitted his application in Form 'N' under 10(i) of the Rules. Thereafter, the controlling authority initiated proceedings. Notice was issued to FCI. By consent of the parties delay in filing the application was condoned. Parties were heard. On 31st December, 2004 the controlling authority passed the order under challenge determining a sum of Rs 1,15,024.55 including interest payable as gratuity by the FCI to the said respondent. According to the said respondent, under Section 7(7) of the Act order impugned was an appealable order. Appeal was to be filed within sixty days from the date of the order, which under the proviso was extendable by a further period of sixty days. Relying on the Judgments of the Supreme Court in Titaghar Paper Mills Co. Ltd. and Anr. v. State of Orissa and Anr. reported in : [1983]142ITR663(SC) , Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors. reported in : 1985ECR4(SC) , Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. reported in : AIR1992SC2279 , State of Goa and Ors. v. Leukoplast (India) Ltd. etc. reported in : 1997(2)ELT19(SC) , Bhagwant Kishore Sud v. Income Tax Appellate Tribunal, Chandigarh reported in : [1999]236ITR305(SC) and in Star Paper Mills Ltd. v. State of Uttar Pradesh and Ors. reported in (2006)7RC 488, it was submitted that the Act, a welfare legislation and a complete code, had laid down in detail the procedure and remedies with provision for preferring appeal. As the writ jurisdiction was discretionary, Courts should loathe to entertain a writ petition challenging an order, passed by a statutory authority, against which statute itself provided a forum for preferring appeal. Though existence of alternative remedy did not take away the jurisdiction of the writ Court, Courts would not exercise its discretion to entertain a writ petition and instead should relegate the party to the statutory appellate authority. However, there were exceptions. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. reported in : AIR1999SC22 and in Harbanslal Sahania and Anr. v. Indian Oil Corporation Ltd. and Ors. reported in : AIR2003SC2120 the Apex Court had held that self-imposed restrictions were not applicable where the order under challenge was without jurisdiction, or where the vires of an enactment was under challenge, or where there had been a violation of the principles of natural justice, or where the petition was for the enforcement of fundamental rights. The absence of jurisdiction of the controlling authority had been faultily argued by the FCI and any of those exceptions did not exist in the present case. Referring to circular No. 47 dated 21st November, 1996 (hereinafter referred to as the said circular) it was submitted that FCI had admitted that Food Corporation of India (Death-cum-Retirement Gratuity) Regulations 1967 (for short 'the Regulations') became redundant and required to be rescinded. The said circular, recognized that the benefit of prior service before joining FCI would be counted as contemplated in Section 4(5) of the Act which gave the right to an employee to secure better terms of gratuity under any award, agreement or contract with the employer. Therefore, FCI could not deny the employee the benefit of counting prior service before joining FCI which was a right recognized by Section 4(5) of the Act. In this regard reliance was placed on the Judgments in Eastern Coal Fields Ltd. v. Regional Labour Commissioner (Central), Calcutta and Ors. reported in 1981(2) CLJ 478 and Ramilal Chimanlal Sharma v. Elphinstone Spinning and Weaving Mill Co. Ltd. and Anr. reported in 1984 Lab IC 1703. Moreover, the FCI in its circular had itself recognized the counting of past service for the purpose of calculation of gratuity on the basis of Section 4(5) of the Act. Further, in view of the Judgment of the Apex Court in Central Inland Water Transport Corporation Ltd. and Anr. : (1986)IILLJ171SC such Regulations, laying down terms and conditions of service was part of service contract. Hence, such additional benefit was contractually conferred and also came under the purview of Section 4(5) of the Act. Referring to the Regulation it was submitted that Explanation (2) to Regulation 4 governed the cases other than those of absorbed depulationist and, therefore, did not apply to the said respondent. The petitioner could not raise the plea that the employee did not deposit the amount of gratuity received from the state since FCI in its letter dated 4th March, 1994 had waived the provision which had been referred to by the controlling authority in the order impugned. Relying on the Judgment of the Apex Court in Lalchoo Mal v. Radhya Shyam reported in : [1971]3SCR693 it was submitted even if the right of FCI to get refund as contained in Explanation 4 to Regulation 4 of the Regulations could be elevated to status of statutory right, such right could be waived if it was procedural. It was contended that under Section 7(7) of the Act an appeal from an order of controlling authority could be filed within 60 days extendable upto a further period of 60 days. The controlling authority had passed its order on 31st December, 2004. Accordingly, the time to file appeal had expired 2nd June, 2005. FCI chose not to file appeal but filed a writ petition affirmed on 11th March, 2005. The limitation for filing statutory appeal had thus set in during the pendency of the writ petition. Referring to the Judgment of the Supreme Court in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. reported in : 1983ECR2151D(SC) it was submitted since the petitioner had voluntarily abstained from filing a statutory appeal, the plea of limitation as a ground for entertaining this writ petition could not be accepted. Further, one who had defaulted in complying with the statutory provision could not claim a better right over those who had complied. Since the vires of Section 7(7) of the Act was not under challenge, the submission of the petitioner regarding hardship caused by pre-deposit of the amount of gratuity as condition precedent under the said sub-section could not be entertained.
4. Mr. K.K. Maitra and Mr. R.N. Das learned senior advocates appearing on behalf of the petitioner in W.P. No. 5354(W) of 2005 submitted that the controlling authority was not competent to embark upon adjudication of the purported claim and the order passed was an erroneous application of facts and the relevant provisions of law. The said respondent was appointed by the State and had worked till 30th June, 1984. The state paid him a sum of Rs. 4878/- as gratuity which was received by him. After joining FCI, the said respondent was absorbed on 1st July, 1984 and continued to be an employee of the FCI from that date till his superannuation on 30th June, 2000. At the time of superannuating from FCI the said respondent was paid gratuity amounting to Rs. 22,519.20 for the service rendered with the FCI for the period from 1st July, 1984 till 30th June, 2000. The said respondent without making any application before the FCI preferred an application before controlling authority for payment of gratuity of Rs. 1,15,024.55 taking into account the entire period of service he had rendered both under the State and the FCI. In the context of the said facts, the order of the controlling authority for payment of gratuity amounting to Rs. 1,15,024.55 under the Act was wholly illegal and invalid as the question of payment of gratuity to a deputationist for the period of service he had rendered under the State before joining the service under FCI was not covered under the provisions of the Act. Regarding the preliminary objection as to the maintainability of the writ petition, it was submitted that unless entire factual matrix of the case and the relevant provisions of law concerning the facts were laid after exchange of affidavits, the point of maintainability could not be decided merely as a question of law. Invocation of Order XIV Rule 2 of the Code could not be made in isolation of Order XIV Rule 1 as only after material proposition affirmed by one party and denied by the other, the issues of facts and law could be framed. In the backdrop of such facts and law, the jurisdiction of the Court had to be decided. Regarding alternative remedy submission was made that it had neither been a rule of law and nor of compulsion but a matter of discretion and convenience of the Court. It was never considered to be a bar to the maintainability of the writ petition. In an appropriate case, in spite of the availability of alternative remedy, High Court could still exercise its writ jurisdiction in at least three contingencies - i) where the writ petition sought enforcement of fundamental right, ii) where there was a failure of compliance of the principles of natural justice and iii) where the orders or proceedings were wholly without jurisdiction or where the vires of the Act was challenged. As the petitioner was denied a reasonable opportunity of being heard and the controlling authority completely lacked jurisdiction in the matter of entertaining, adjudicating and deciding the claim of the said respondent under the provisions of the Act, the case came under the two exceptions. Further, the Apex Court in U.P. State Bridge Corporation Limited (supra) held that the objection regarding the maintainability of the writ petition on the ground of existence of alternative remedy was only in the nature of a demurer. Since the controlling authority lacked jurisdiction, alternative remedy would not be a bar. Besides the definition of continuous service' under Section 2A(1) of the Act nowhere contemplated the service rendered by such employee under any other employment prior to his employment under the employer wherefrom the employee superannuated. Referring to Section 7(1) and (4) it was submitted that the existence of a dispute was a pre-requisite for making an application to the controlling authority and then only the controlling authority could assume jurisdiction which in the instant case was conspicuously absent. Therefore, since assumption of jurisdiction by the controlling authority was illegal and without jurisdiction, his decision was a nullity. In this regard reliance was placed on the Judgment of the Apex Court in Union of India v. Tarachand Gupta & Bros. reported in : 1983(13)ELT1456(SC) . Regarding efficacy of the alternative remedy under Section 7(7) of the Act, relying on the Judgment of the Supreme Court in Collector of Customs and Excise, Cochin and Ors. v. A.S. Bava reported in : 1973ECR18(SC) , it was argued that the pre-deposit of the amount determined by the controlling authority and obtaining certificate could not but be said to stultify the right of appeal. Besides, though the Act was a welfare legislation, it could not be a one way traffic and Courts must look into the public interest since payment of money was involved. Moreover, there was no adherence to the procedure postulaled in Rule 7(1) and 10 of the Rules. On facts it was submitted that a circular dated 19th March, 1984 was issued with a view to absorb the West Bengal State Government deputationists in the regular service of FCI. In the said circular it was specifically provided that the State Government employees who had opted for permanent absorption in the service of the Corporation would be treated as direct recruits and would be subject to the terms and conditions as prescribed in FCI (Staff) Regulations, 1971. It was further stipulated in the said circular that for the service rendered prior, to the date of absorption in FCI, the FCI would not bear any liability in respect of the service rendered prior to the date of permanent absorption in the Corporation Regarding the Regulations it was submitted that those were promulgated in exercise of the powers conferred by Section 45 of the Food Corporation of India Act, 1964 with the previous sanction of the Central Government for payment of gratuity to all employees of the FCI regularly appointed under Regulation 7(1) of the Food Corporation of India (Staff) Regulation, 1971. Regulation 4 of the said Regulation provided the circumstances under which gratuity would be payable. Explanation 2 to the said Regulation 4 stipulated that service rendered in the Government or any public or private undertaking by an employee before his joining service of the FCI might be declared by the Managing Director to be deemed in whole or in part to be qualifying service provided that there was no break in service before joining the corporation. Explanation 4 to the said Regulation 4 also stipulated that qualifying service should also include service rendered in the Government after completion of 18 years of age by an absorbed deputationist provided that the amount of death cum-retirement gratuity received by him, if any, from the Government in respect of service rendered by him in the Government was deposited with the FCI immediately on receipt of such gratuity after his absorption. From the provisions contained in the Regulations and circular No. 21 of 1984 it was obvious that in order to be entitled to claim gratuity for the period of service rendered under the State of West Bengal, a deputationist was required to give option and to deposit with the FCI the amount of gratuity immediately on receipt from the State after his absorption in the FCI. Unless these essential conditions were complied with, an employee could not be said to be entitled to the benefit of continuous service under the State Government for claiming gratuity for the period so spent under the State Government for claiming gratuity for the period so spent under the state. However, in the instant case, the said respondent was ineligible as he had failed to deposit the gratuity with the FCI immediately after its receipt from the state. Though the Regulation became redundant after the enactment of the Act, a circular No. 47 of 1996 was issued on 21st November, 1996 whereby it was provided that future settlements of payment of gratuity would be under the provisions of the Payment of Gratuity Act, 1972. It was enumerated that as per the said provisions favourable benefits should continue to be extended to the existing employees covered under the said regulations to the extent applicable. Circular No. 47 also stipulated that action had also been initiated to approach the Central Government for issuing notification to rescind the 1967 Regulations. Thus, it was obvious that in the matter of extending favourable benefits so far as the existing employee of FCI were concerned the Regulations still occupy the field. Accordingly, better terms under the said regulations could be made available only when the conditions as provided in the Explanations 2 and 4 of the Regulations were complied with or acted upon. In the instant case since no award was given or agreement or contract as enumerated under Section 4(5) of the Act was entered into, the principles of law contained in the Judgment of the Bombay High Court were not applicable and better terms could only be extended to an existing staff of the FCI if the condition stipulated in the Explanations, 2 and 4 to Regulation 4 of the Regulation were complied with. Therefore, as the controlling authority, a creature of the statute, had to act within the parameters of the statute and the Rules framed thereunder and was devoid of jurisdiction, he had no authority to pass the order impugned. Thus, order impugned was liable to be interfered with in the writ jurisdiction and the plea of an alternative remedy could not stand in the way of entertainment and adjudication of the writ petition.
5. It is to be noted that learned advocates for the parties in W.P. No. 5354(w) of 2005 had filed their respective written submissions which are on record. Learned advocates on behalf of the FCI in the other writ petitions had adopted the arguments advanced on behalf of the petitioner in W.P. No. 5354(W) of 2005.
6. The issues which are to be considered are (i) whether the alternative remedy under the Act is efficacious and (ii) whether the ALC and the Controlling Authority had the jurisdiction to determine the issue regarding payment of gratuity under the Act.
7. In order to address the issues raised it is necessary to refer to the relevant provisions of the Act. Section 7 is 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 authorized, 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 the controlling authority specifying the amount of 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, be 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 the controlling authority for the delayed payment on this ground.
(4) (a) If there is any dispute to the amount of gratuity payable to an employee under this Act or as to the admissibility or 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 his 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, alter the 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 as, 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 (45 of 1860).
(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 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 he said period of sixty days, extend he 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 as amount equal to the amount of gratuity required to be deposited under Sub-section (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.
8. In this context it is necessary to refer the relevant portion of Section 4 of the Act which is extracted hereunder:
4. Payment of Gratuity.-(1) Gratuity shall be payable to an employee on the termination on his employment after he has rendered continuous service for not less than five years:
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease.
(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
(Emphasis supplied)
9. Section 7(4) of the Act creates a mechanism authorizing the controlling authority to decide disputes regarding payment of gratuity after making inquiry and after giving parties to the dispute a reasonable opportunity of being heard. Section 7(5) lays down the procedure for conducting the inquiry under sub-section 4 for the purpose of determination of the 'matters or matters' in dispute. In doing so the controlling authority shall have the same power as are vested in a Court while trying a suit under the code. Such inquiry under Section 7 of the Act 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. Therefore, the controlling authority has the trappings of a Court to decide 'matter or matters' in dispute meaning thereby - even incidental or peripheral issues covered under the Act particularly regarding the payment of gratuity under Section 4 can be considered. Any person aggrieved by an order under Sub-section (4) of Section 7, within sixty days from the date of receipt of the order, has a right to prefer an appeal to the appellate authority which is extendable by further period of sixty days it if is satisfied that the appellant was prevented by sufficient cause from preferring appeal within the said period of sixty days. However, second proviso to Section 7(7) restricts admission of an appeal by an employer unless the appellant produces a certificate from the controlling authority that the appellant had deposited the amount required to be deposited under sub-section(4) or deposits such amount with the appellate authority. Since there is an alternative remedy under the Act for resolving the dispute, the question is whether the writ petition is maintainable. The Supreme Court in a number of Judgments had the occasion to deal with this issue. The principles of law laid down by the Apex Court in Whirlpool Corporation (supra) is as under:
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cal down this circle of forensic whirlpool, we would rely oil some old decisions of the evolutionary era of the constitutional law as they still hold the field.
16. Rashid Ahmed v. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, 'unless there are good grounds therefor', which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.
(Emphasis supplied)
10. The same view was reiterated by the Apex Court in Harbanslal Sahnia (supra) in the following manner:
7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged....
(Emphasis supplied)
11. In a recent Judgment in Star Paper Mills (supra) the Supreme Court while considering several Judgments held as follows:
7. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing of the alternative remedy provided, the High Court should ensure that the has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.
8....However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure for decision has not been adopted.
11... this Court held that where hierarchy of appeals is provided by the state, party must exhaust the statutory remedies before resorting to writ jurisdiction.
12. If, as was noted in Ram and Shyam Co. v. State of Haryana : AIR1985SC1147 the appeal is from 'Caeser to Caeser's wife' the existence of alternative remedy would be a mirage and an exercise in futility. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. The first is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings themselves are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.
(Emphasis supplied)
12. Now it has to be considered whether the contingencies referred to in Harbanslal Sahania (supra) are present in the instant writ petition. Before delving into controversy it is to be noted that under Rule 11 of the Rules of the High Court at Calcutta relating to applicants under Article 226 of the Constitution of India 'All petitions shall contain a paragraph containing the 'grounds' upon which the petition is moved.'
13. Perusing the grounds it is evident that vires of any of the provisions of the Act are not under challenge. Though it was submitted on behalf of the FCI that since it is a question of payment of public money and, thus, interest of the public is involved and right of access to writ Court is whittled down as predeposit under Section 7(7) of the Act causes hardship and the remedy, therefore, cannot be efficacious, in the absence of pleadings in the petition, such argument cannot be accepted. In this regard, the principles of law laid down in Jalgaon Municipal Council (supra) are squarely applicable to the instant case. Further, though it was feebly contended that FCI was denied the opportunity of being heard, it appears from the order impugned, that FCI - the petitioner - contested the case before the controlling authority by cross-examination the said respondent and had produced oral and documentary evidence. Moreover, grounds in the writ petition do not spell out at all that there was denial of natural justice. Therefore, the allegation of denial of reasonable opportunity of being heard is also devoid of merit.
14. The keenly contested issue, in my view, though not pleaded in the grounds, is whether the controlling authority had the jurisdiction to decide the dispute. It appears from the annexures that since the said respondent was aggrieved by the amount received as gratuity from the FCI, he had disputed the same by submitting form T under Section 7(4)(b) of the Act read with Rule 7(1) of the Rules. Thereafter, as FCI failed to take action, the said respondent submitted his application before the controlling authority in Form 'N' under the relevant rules. It may be noted in the year 1967 FCI had introduced the Regulation. Though it was stipulated in 2(e) of the Regulations that it did not apply to the employees covered under the provisions of the Payment of Gratuity Act, 1972 and under Explanation 2 of the Regulation service rendered in the government by an employee before joining FCI might be 'declared' by the Managing Director to be deemed to be wholly or partly to be qualifying service, yet Explanation 4, introduced in the year 1982, 'also' included the past service in the government as 'qualified service' provided lie had deposited with the FCI the amount of gratuity immediately on its receipt from the government. The question is whether the FCI developed any procedure to receive the amount received by the said respondent on account of gratuity from the state. The answer is in the negative as it is revealed from a letter dated 4th March, 1994 issued by the Deputy Manager (Personal) for Senior Regional Manager addressed to all D.M., FCI, Deputy Manager, Assistant Manager FCI which was an exhibit before the controlling authority and recorded in the order impugned 'that it has also been decided that the amount of gratuity received by the employee concerned from A.G.W.B. during their tenure under the Government of West Bengal should be entered into the service book of the respective employees and the same should be deducted at the time of final settlement of gratuity on retirement on expiry during the service in this organization' (pages 36 and 37 of the writ petition) it is, therefore, evident from the letter dated 4th March, 1994 that FCI had done away with or had waived the stipulation contained in Explanation 2 of the Regulation and had accepted the continuity of service of said respondent. It is surprising that neither in the petition there is any denial about the existence of the said letter nor is it challenged on the ground of perversity. Further, Circular No. 47 of 1996 dated 21st November, 1996, (pages 50 and 51 of the writ petition) for 'Rescinding of FCI (DCRG) Regulation and settlement of gratuity claims under provisos contained in Payment of Gratuity Act, 1972' had notified that 'consequently all future settlements of payment of gratuity will be under the provisions of the Payment of Gratuity Act as amended from time to time.' It appears from the circular that the Regulation including 2(e) was mode redundant and referring to Section 4(5) of the Act it was notified that 'As per the said provision favourable benefits shall continue to be extended to the existing employees covered under the FCI (DCRG) Regulations to the extent applicable' which shall include 'Counting of prior service before joining the Corporation'- thus putting a further stamp of approval on the continuity of service of the said respondent. Though it was sought to be argued on behalf of the petitioner that the Assistant Manager acting on behalf of the Manager had no authority to issue the circular dated 21st November, 1996, to circular or notification has been annexed to the petition by FCI, the petitioner, demonstrating that circular No. 47 of 1996 was rescinded or withdrawn. It only emphasized the fact that FCI had accepted the right of the said respondent to receive better terms under Section 4(5) of the Act.
15. There is another aspect to the controversy - whether the Regulations can be treated to be a contract of employment and, if so, whether it comes within the scope of Section 4(5) of the Act. To appreciate the issue it is necessary to set out the relevant paragraph in Brojo Nath (supra) which is extracted hereunder:
101. The Corporation is a large organization. It has offices in various parts of West Bengal, Bihar and Assam, as shown by the said Rules, and possibly in other States also. The said Rules from part of the contract of employment between the Corporation and its employees who are not workmen. These employees had no powerful workmen's Union to support them. They had no voice in the framing of the said Rules They had no choice but to accept the said Rules as part their contract of employment. There is gross disparity between the Corporation and its employees, whether they be workmen or officers. The Corporation can afford to dispense with the services of an officer. It will find hundreds of others to take his place but an officer cannot afford to lose his job because if he does so, there are not hundreds of jobs waiting for him. A clause such as Clause (i) of Rule 9 is against right and reason. It is wholly unconscionable. It has been entered into between parties between whom there is gross inequality of bargaining power. Rule 9(i) is a term of the contract between the Corporation and all its officers. It affects a large number of persons and it squarely falls within the principle formulated by us above. Several statutory authorities have a clause similar to Rule 9(i) in their contracts of employment. As appears from the decided case, the West Bengal State Electricity Board and Air India International have it. Several Government companies apart from the Corporation (which is the First Appellant before us) must be having it. There are 970 Government companies with paid-up capital of Rs. 16,415.00 crores as stated in the written arguments submitted on behalf of the Union of India. The Government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as Rule 9(i) in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, if is void under Section 23 of the Indian Contract Act.
(Emphasis supplied)
16. Though in Brqjo Nath (supra) Apex Court was considering whether Rule 9(i) - a clause in a contract of employment, was opposed to public policy, it in no uncertain terms held such rule to be a part of the contract of employment. Following the principles of law laid down in Brojo Nath, the Regulations cannot but be said to be a part of contract of employment. It thus comes within the ambit of Section 4(5) giving the employee - the said respondent - to receive better terms of gratuity under a contract with FCI - the employer. In the instant case as the Regulation was a part of the service contract with the employer and as the said respondent was aggrieved with the gratuity paid, he had validly raised a dispute for the determination of gratuity under Section 7 of the Act which gave jurisdiction to the controlling authority to decide the issue. In this regard it is appropriate to refer to the Judgment in Eastern Coalfields v. R.L. Commissioner (supra) delivered by G.N. Ray, J. as His Lordship then was with which I am in respectful agreement, the relevant portion of which is as under:
In my view, it will not be a proper construction in keeping with the beneficial purpose of the legislation, that although under Section 4(5) of the Act an employee may be entitled to a higher payment of gratuity but for enforcing such favourable terms of service for higher gratuity, he should move a different forum and the authority under the Gratuity Act cannot entertain such claim of higher amount of gratuity.
17. Therefore, since the vires of any of the provisions of the Act is not under challenge nor is there any allegation that FCI - the petitioner - was denied the opportunity of hearing and as I find that the said respondent - the employee, under the Act enjoyed a right to receive better terms of gratuity under the service regulation thereby bringing the dispute within the fold of the controlling authority, in my view, the submission of the petitioner in paragraph 34 of the writ petition that there is petitioner is not tenable as 'it is now well-recognised that where a right or liability is created by a statute which gives special remedy for enforcing it, the remedy provided by the statute only must availed of - Titaghur Paper Mills (supra). Further, FCI has not made out a 'strong case' or has come up with 'good grounds to invoke the extraordinary jurisdiction' as propounded by the Apex Court in Star Paper Mills (supra).
18. Hence, considering the facts of the case, according to me, it does not appear that the ALC and the controlling authority acted beyond the jurisdiction to warrant interference. Hence, the writ petition is dismissed. Interim order is vacated.
No order as to costs.
Urgent Xerox certified copy of this Judgment and order, if applied for, be given to the appearing parties on priority basis.
Later:
After Judgment is delivered, learned advocate appearing on behalf of the FCI - the petitioner, prays for stay of the operation of the Judgment and order. Considering the facts and circumstances, let there be a stay of operation of the Judgment and order till 9th March, 2007.
Urgent xerox certified copy of this order, if applied for, be given to the appearing parties on priority basis.