Rabindranath Choubey Vs. Chairman-cum-m.D., Mahanadi Coalfield Ltd. and Ano - Court Judgment

HIGH COURT OF ORISSA; CUTTACK W.P.(C) No.24835 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. -----------------Rabindranath Choubey … Petitioner Versus Chairman-cum-Managing Director, Mahanadi Coalfield Ltd. and another … Opposite Parties ---------------For Petitioner For opposite party no.1 : M/s. C.Ananda Rao, S.K.Behera,A.K.Rath, and G.B.Pnda. : M/s. Debraj Mohanty and Sujit Mohanty. ---------------- PRESENT: THE HONOURABLE MR. JUSTICE S.K.MISHRA Date of hearing:17.02.2012 : Date of judgment:

21. 3.2012. S.K.Mishra,J.In this writ petition, the petitioner, a retired employee of Mahanadi Coal Fields Ltd., has assailed the order dated 15.4.2011 passed by the Controlling authority under payment of Gratuity Act, 1972 and Regional Labour Commissioner (Central), Rourkela, opposite party no.2, in Application No.36(3)/2010. As per the said order opposite party no.2 rejected the claim of the petitioner filed under Section 7(3) of the Payment of Gratuity Act”

1972. (for short “the Act”. for brevity) on the ground that a disciplinary proceeding is still pending against the petitioner.

2. At the outset the question arose whether the writ petition is maintainable in view of the fact that the order impugned is an appealable one under Section 7(7) of the Act. Sub-section (7) of Section 7 of the Act provides that any person aggrieved by an order under sub-section (4) may, within sixty days from the date of 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. There is also a provision for condonation of delay. Sub-section (3) of Section 7 of the Act provides that 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. Clause (a) of sub-section (4) of Section 7 of the Act provides that 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. Clause (b) of the said sub-section provides that 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. Thus, the order passed by opposite party no.2 is in exercise of sub-section (4) of Section 7 of the Act and, therefore, the same is appelable. The question, therefore, arise at the outset is whether in the event an alternative Forum is available, this writ petition should be entertained by the Court. In this regard, the Asst. Solicitor General has filed a notification issued by the Ministry of Labour and Employment on 4th January, 2006. quoted below:- The relevant portion is 3 “8.0.362- In exercise of the powers conferred by Sub-Section (7) of Section 7 of the Payment of Gratuity Act, 1972 (39 of 1972) and in supersession of the Notification of the Government of India in the Ministry of Labour not S.O.1252 dated 12th April 1999, the Central Government hereby specified the officers mentioned in the Column (2) of the Schedule specified hereunder to be Appellate Authority for the area/jurisdiction as specified in Column (3) of the said schedule in relation to all establishments for which the Central Government is the appropriate Government under Clause (a) of Section 2 of the said Act. SCHEDULE Sl.not Officers Jurisdictio”

2. 3 1. Regional Labour The State of Commissioner (Central) Gujrat and Ahmedabad. Union Territories of Dadra, Nagar Haveli, Daman and Diu xxx 5. xxx Regional Labour Commissioner (Central) Bhubaneswar. xxx The State of Orissa xxx”.. Thus the appellate forum is available to assail an order passed by opposite party no.2.

3. The Supreme Court in Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. and others; AIR 200.SUPREME COURT 212 has held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion. In an appropriate case in spite of availability of 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 4 natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged.

4. Similar view has been taken in U.P. State Spining Co. Ltd. Vrs. R.S. Pandey & another; 101(2006) CLT 16.(SC), wherein the Supreme Court held that not exercising the power in case of availability of alternative remedy is 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 or 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 the alternative remedy provided, the High Court should ensure that he has made out a strong case of that there exist good grounds to invoke the extraordinary jurisdiction.

5. The Supreme Court, in the case of NIVEDITA SHARMA VS. CELLULAR OPERATORS ASSN. OF INDIA & ORS.; CIVIL APPEAL N0.10706 OF 2011.has examined the question of maintainability of a writ petition before the High Court under Articles 226 and 227 of the Constitution in spite of existence of a statutory remedy of appeal available to the parties under Section 19 of the Consumer Protection Act, 1986. The Supreme Court held as follows:“We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature 5 of the Constitution and cannot be curtailed by parliamentary legislation – L. Chandra Kumar v. Union of India (1997) 3 SCC 261.However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

. Thus, the Supreme Court further held that the existence of alternative remedy is not a bar to entertain a writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. Holding thus, the Supreme Court has set aside the order passed by the Delhi High Court.

6. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others; AIR 199.SUPREME COURT 22 it has been laid down that the jurisdiction of the High Court in entertaining a Writ Petition under Art.226 of the Constitution in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. Thus, the Supreme Court has held that the High Court was not justified in dismissing the Writ Petition at the initial stage without examining 6 the contention that the show cause notice issued to the appellant was wholly without jurisdiction The Supreme Court has further held that in view of pendency of these proceedings in the High Court and specially in view of Section 107 of the Trade and Merchandise Marks Act, 1958, the Registrar could not legally issue any suo motu notice to the appellant under section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted. In view of Section 56(4), the Registrar has no jurisdiction to issue such a notice.

7. It is not the case of the petitioner in this case that the case comes within the exceptions as described above.

8. Court Thus in view of the existence of an appellate forum, this refrains itself from entertaining the writ petition. However, the petitioner may file an appeal before the appellate authority within twenty one days. On such an event, the appellate authority shall take up the matter for hearing and dispose of the same as expeditiously as possible preferably within a period of three months there from. The writ petition is, accordingly, disposed of. Sd/S.K.Mishra, J True copy Orissa High Court, Cuttack Dated 21st. March 2012/A.K.Behera. P.A. 7