Oil and Natural Gas Corporation v. Dharam Singh Pundir and another

Mr. Piyush Garg, Advocate for the petitioner. Mr. Neeraj Garg, Advocate for the UPNL. JUDGMENT Hon’ble Ravindra Maithani, J.(Oral) Since common questions of law and facts are involved in all these petitions, they are decided by this common judgment. 20

2. The challenge in these petitions is made to the final order dated 22.10.2024 passed under Section 7 (4) (c) of the Payment of Gratuity Act, 1972 (“the Act”) read with 11 (4) of the Payment of Gratuity (Central) Rules, 1972 by the court of Assistant Labour Commissioner (Central), Dehradun and Controlling Authority under the Act.

3. Heard learned counsel for the parties and perused the record.

4. At the very outset, the Court wanted to know from learned counsel for the petitioner as to how, the writ petitions are maintainable in view of alternate efficacious remedy in terms of Section 7 sub Section (7) of the Act?

5. Learned counsel for the petitioner would submit that the controlling authority has wrongly interpreted the definition of employer and termed the petitioner as principal employer, which is beyond the jurisdiction of the controlling authority. Therefore, the writ petitions are maintainable. He would further submit that since the impugned order directs the petitioner as the principal employer to pay the gratuity, this order is without jurisdiction. 21

6. There are distinct aspects of the matter, namely, (i) Order without jurisdiction; (ii) an order which is termed wrong by a party. In para 56 of the impugned order, the Controlling Authority has proceeded to decide as to who is an employer, as per Section 2 (f) of the Act and in para (A), it records as follows:- “56. The crucial points in the claim before the undersigned, to arrive at the conclusion as to who is the employer as per Section 2 (f) of the PG Act, 1972 are:- (A) There is continuation of employment of employees in the establishment of the ONGC before and after the term of the contract of the UPNL. There was no termination of the service of the employees. The contract of the service is between the principal employer and contractor, the employees are not party to the said contract. The employees are in continuous service in the establishment of the ONGC through different contractors.”

7. In para (A) of the para 56 of the impugned order, the impugned order refers the words “principal employer” and the “contractor”. But thereafter, the order examines the contract and other factual aspects of the matter and in para 57 concludes as follows:- “57. In view of facts mentioned above, judgments of the Hon’ble Supreme Court of India and Hon’ble High Courts, it is held that the ONGC has the ultimate control over the affair of establishment in relation to these applicants. The ONGC is meeting the criteria of employer for the limited purpose of gratuity as per 22 section 2 (f) of the PG Act, 1972. The applicants are entitled for the gratuity as per the provisions of the Payment of Gratuity Act, 1972 and the ONGC is liable to pay the gratuity to the applicant.”

8. Sub Section (4) (a) (b) of Section 7 of the Act, deals with disputes of gratuity. It reads as follows:- “(4) (a) 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 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.”

9. Any person aggrieved by an order under sub- Section 4 may prefer an appeal. It is so given under Section 7 sub Section (7) of the Act, which reads as hereunder:- 23 “7. Determination of the amount of gratuity.- (1)..................................................................................... (2).................................................................................... (3)..................................................................................... (4)..................................................................................... (5)..................................................................................... (6)..................................................................................... (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 or such other authority as may be specified by 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 the 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 an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount.”

10. In the impugned order, the controlling authority has categorically held that “the ONGC is meeting the criteria of employer for the limited purpose of gratuity 24 as per Section 2 (f) of the Act. The applicants are entitled to gratuity as per the provisions of the Act”. This finding categorically establishes that, in fact, the controlling authority has determined the relationship between the employer and employee and held that the petitioner is employer as per Section 2 (f) of the Act. This order cannot be termed an order without jurisdiction. A party may term it as a wrong finding. But then for that purpose redressal can be had under Section 7 sub Section (7) of the Act. There is an alternate efficacious remedy available to the petitioner. Therefore, instant writ petitions may not be entertained. Accordingly, the instant writ petitions deserve to be dismissed at the stage of admission itself.

11. The writ petitions are dismissed in limine. Jitendra (Ravindra Maithani, J.)

19.03.2025