Mr. Amitabh Chaturvedi, Mr. Gulshan Chawla, Ms. Rimjhim Suhani, Advocates v. CHET RAM

Judgment

1. The Registry is directed to ensure that the cause title as appearing in the cause list is in the terms of the amended memo of parties /directions passed by this Court from time to time.

2. The present Petition has been filed under Article 226 and 227 of the Constitution of India seeking to challenge an Order dated 19.12.2019 passed by the Controlling Authority, Hari Nagar, South West district, New Delhi [hereinafter referred to as “Impugned Order”] under the Payment of Gratuity Act, 1972 [hereinafter referred to as “Act”]. In addition, the challenge has also been made to the recovery certificate which emanates from the Signature Not Verified Digitally Signed By:RAHUL Signing Date:27.05.2025 14:58:35 W.P.(C) 17542/2022 Page 1 of 11 Impugned Order.

3. A Coordinate Bench of this Court by its Order dated 22.12.2022 had stayed the Impugned Order, subject to the Petitioner depositing Rs. 1,05,895/- with the Registrar General of this Court. By an Order dated

17.04.2025, this Court had appointed an Amicus Curiae in the matter.

Learned Counsel have been heard in the matter.

4. Briefly the facts are that the Respondent No. 1/Workman joined the services of Petitioner/Management on the contract of employment on

09.05.2007. His services were terminated on 31.08.2018 [this is borne from the paragraph 2 of the statement of claim of the Petitioner/Management]. Subsequently, the Petitioner/Management calculated gratuity which was offered to the Respondent No. 1/Workman. It is the case of the Petitioner/Management that the gratuity amount was not accepted by the Respondent No.1/Workman, however this is disputed by the Respondent No. 1/Workman. Instead, a Claim Petition was filed by the Respondent No. 1/Workman before the office of the Controlling Authority, Labour Commissioner, New Delhi [hereinafter referred to as “Controlling Authority”] on 27/29.03.2019 claiming an amount of Rs. 1,05,895/- along with the interest at the rate of 20% per annum.

4.1 Although initially there was an appearance on behalf of the Petitioner/Management before the Controlling Authority, however the Petitioner/Management stopped appearing, and an ex-parte Order was passed against the Petitioner/Management by the Controlling Authority. Pursuant to the Impugned Order, a Recovery Certificate was also issued on

19.08.2020 by the office of the Joint Labour Commissioner [hereinafter Signature Not Verified Digitally Signed By:RAHUL Signing Date:27.05.2025 14:58:35 W.P.(C) 17542/2022 Page 2 of 11 referred to as “Impugned Recovery Certificate”].

4.2 An Application was filed by the Petitioner/Management on

15.09.2020 [Annexure P-6] before the Controlling Authority seeking recall of the Impugned Order along with other prayers. It is the case of the Petitioner/Management that this Application was neither heard nor was disposed of by the Controlling Authority. This led to the filing of the present Petition.

5. Learned Counsel appearing on behalf of the Petitioner/Management has made two submissions. In the first instance, it is submitted that in terms of Section 2(a)(i)(b) of the Act, in cases where the management has branches in more than one State, the appropriate Government as defined under the Act would be the Central Government. He seeks to rely upon Section 2(a)(i), 2(d) and Section 3 of the Act in this behalf to submit that the Petitioner/Management has branch offices in multiple cities in India and thus, the appropriate Government would be the Central Government. Reliance in this behalf is placed on the provisions of the Act as well as on the judgment of the Coordinate Bench of this Court in Balsara Hygiene Products Limited v. The Appellate Authority1, which has been upheld by Supreme Court, National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India and Anr.2 and M/s G4S Secure Solutions India Pvt. Ltd v. Manoj Kumar Jha.

5.1 Learned Counsel submits that given the fact that the Controlling Authority had no jurisdiction to entertain the Claim Petition, the Impugned 1 2001 SCC OnLine Del 898 2 2019 SCC OnLine Del 11249 Signature Not Verified Digitally Signed By:RAHUL Signing Date:27.05.2025 14:58:35 W.P.(C) 17542/2022 Page 3 of 11 Order cannot be sustained.

6. The learned Amicus Curiae has also filed a compilation of judgments and submits that in view of the settled law as laid down in Balsara Hygiene case the Controlling Authority would be the controlling authority appointed by the Central Government and thus, the Impugned Order has been passed without jurisdiction.

7. Learned Counsel appearing on behalf of the Respondent No.1, on the other hand, has raised two objections. Firstly, he submits that the Petition is not maintainable in view of the existence of a remedy of an Appeal. Reliance is placed on the Section 7(7) of the Act. Secondly, it is contended that the Impugned Order was passed on 19.12.2019 and the Petition which is filed on 20.12.2022 is barred by delay and latches.

8. In Rejoinder, learned Counsel appearing Petitioner/Management has contended that Notice of the Impugned Order was only received by the Petitioner/Management after the Impugned Recovery Certificate was received office Petitioner/Management and subsequently on 15.09.2020, an Application was filed by the Petitioner/Management before the Controlling Authority for setting aside of the Impugned Order. He further submits that since there was no order passed on the Application, the Petitioner/Management was constrained to file the present Petition.

8.1 On the other issue raised by the learned Counsel for the Respondent No.1, learned Counsel appearing for the Petitioner/Management submits that it is settled law that even in spite of an Appellate remedy being available, an Signature Not Verified Digitally Signed By:RAHUL Signing Date:27.05.2025 14:58:35 W.P.(C) 17542/2022 Page 4 of 11 order passed by an authority without jurisdiction, can always be challenged under Article 226 without taking recourse to alternate remedy. Reliance in this behalf is placed on the judgment passed by the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors.3, Radha Krishna Industries v. State of Himachal Pradesh & Ors.4 and the judgment passed by this Court in Acceptier Investments Aircrafts Limited v. Union of India & Anr.5

8.2 In any event, it is contended by the learned Counsel appearing for the Petitioner/Management that since the Controlling Authority appointed by the State Government passed the Impugned Order without jurisdiction, the remedy of an Appeal which would otherwise lie before the Appellate authority appointed by the state government which is not a feasible alternate remedy.

9. The issue before the Court is limited as to whether the Impugned Order and Impugned Recovery Certificate have been passed by the appropriate Government as is defined in the Act. It is apposite to set out relevant provisions of the Act below: “.. 2. Definitions. – In this Act, unless the context otherwise requires, (a) "appropriate Government" means,- (i) in relation to an establishment- (a) belonging to, or under the 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, (d) of a major port, mine, oilfield or railway company, the Central Government,