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-Ill (Central) while passing the order dated 31.12.2004 in connection with Misc. 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 FCI, 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. 23214 (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 14 Rule 2(2) of the Code of Civil Procedure (for short 'the Code'), as -well as on the judgement of the Apex Court in U. P. State Bridge Corporation Limited vs. U. P. Rajya Setu Nigam S. Karmachari Sangh, reported in 2004(4) SCC 268, 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 Rule 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 31* 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 judgements of the Supreme Court in Titaghur Paper Mills Co. Ltd. & Anr. vs. State of Orissa & Anr., reported in AIR 1983 SC 603, Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. & Ors., reported in AIR 1985 SC 330, Shyam Kishore & Ors. vs. Municipal Corporation of Delhi & Anr., reported in AIR 1992 SC 2279, State of Goa & Ors. vs. Leukoplast (India) Ltd. etc., reported in AIR 1997 SC 1875, Bhagwant Kishore Sud vs. Income Tax Appellate Tribunal, Chandigarh, reported in 1998(8) SCC 512 and in Star Paper Mills Ltd. vs. State of U. P. & Ore., reported in 2006(7) RC 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 vs. Registrar of Trade Marks, Mumbai & Ors., reported in 1998(8) SCC 1 and in Harbanslal Sahania & Anr. vs. Indian Oil Corporation Ltd. & Ors., reported in 2003(2) SCC 107, 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 faultly 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 Regulaions') 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 judgements in Eastern Coal Fields Ltd. vs. Regional Labour Commissioner (Central), Calcutta & Ors., reported in 1981(2) CLJ 478 and Ramiilal Chimanlal Sharma vs. Elphinstone Spinning & Weaving Mill Co. Ltd. & 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 judgement of the Apex Court in Central Inland Water Transport Corporation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr., reported in AIR 1986 SC 1571, 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 deputationist 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 judgement or the Apex Court in Lalchoo Mal vs. Radhye Shyam, reported in AIR 1971 SC 2213, 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 on 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 judgement of the Supreme Court in A. V. Venkateswaran, Collector of Customs, Bombay vs. Ramchand Sobhraj Wadhwani & Anr., reported in AIR 1961 SC 1506, 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.;