Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 919 (ALL)

BLOCK EDUCATION OFFICER v. PRESCRIBED AUTHORITY

2016-03-14

KRISHNA MURARI, RAGHVENDRA KUMAR

body2016
JUDGMENT By the Court.—This intra Court appeal under the Rules of the Court has been filed by the appellants challenging the order dated 17.7.2015 passed by learned Single Judge. Facts are that respondent No. 3 herein, who was superannuated as Teacher from Kanya Primary School, Naraich, Agra on 30th June, 1999, filed a P.G. Case No. 23 of 2011 before the Prescribed Authority/Assistant Labour Commissioner contending that she has been working on the post of Primary Teacher in Primary Kanya Pathshala and after superannuation on 30th June, 1999, despite repeated requests and demand, she has not been paid gratuity. Prescribed Authority/Assistant Labour Commissioner vide order dated 3.5.2012 allowed the claim of respondent No. 3 holding her entitled for payment of Rs. 92,019/- as gratuity. Respondent No. 3 went up in appeal before the appellate authority/Deputy Labour Commissioner on the allegation that she was also entitled to payment of interest on the late payment of gratuity, which has wrongly been denied by the Prescribed Authority. Appellate authority vide order dated 10.10.2012 allowed the appeal and awarded simple interest at the rate of 10% from the date of award till the date of actual payment. The appellants herein challenged the order of the appellate authority by filing writ petition, out of which the present appeal arises. Learned Single Judge vide impugned order dated 17.7.2015 entertained the writ petition and while calling for a counter-affidavit from the respondents, passed a conditional interim order. Aggrieved by the same, the appellants have approached this Court. 2. It is contended by the learned counsel for the respondents that the special appeal under Chapter VIII Rule 5 of the Rules of the Court being directed against the order passed by the learned Single Judge in exercise of jurisdiction conferred by Article 226 of the Constitution of India in respect of an order made in exercise of appellate jurisdiction under Central Act in respect of a matter enumerated in the Concurrent List in the VIIth Schedule to the Constitution, would not be maintainable. 3. Payment of Gratuity Act is a piece of social welfare legislation and deals with the payment of gratuity, which is a kind of retiral benefit, regular pension, provident fund etc. Gratuity in its etymological sense is a gift, specially for services rendered, or return for favours received. For the wage-earning population, security of income, when the worker becomes old or infirm, is very important. Gratuity in its etymological sense is a gift, specially for services rendered, or return for favours received. For the wage-earning population, security of income, when the worker becomes old or infirm, is very important. The provisions contained in the Act are in the nature of social-security measures like employment insurance, provident fund and pension. The main purpose and concept of gratuity is to help the workman after retirement, whether retirement is a result of rules of superannuation or physical disablement or impairment of vital part of the body. The word ‘gratuity’ itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. It is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is a sort of financial assistance to tide over post-retiral hardships and inconveniences. Payment of Gratuity Act, 1972 (hereinafter referred to as the ‘Act’) has been enacted to provide a scheme for payment of gratuity for certain commercial and industrial establishment as a measures of social security. Hon’ble Apex Court in the case of Jeewanlal (1929) Ltd. etc. v. Appellate Authority under the Payment of Gratuity Act etc., AIR 1984 SC 1842 , has observed as under. “It has now been universally recognized that all persons in society need protection against loss of income due to unemployment arising out of incapacity to work due to invalidity, old age etc. For wage-earning population, security of income when the worker becomes old or infirm, is of consequential importance. The provisions of social security measures, retiral benefits like gratuity, provident fund and pension (known as triple-benefits) are of special importance. In bringing the Act on Statute-book the intention of the legislature was not only to achieve uniformity and reasonable degree of certainty but also to create and bring into force a self-contained all-embracing complete and comprehensive code relating to gratuity. The significance of this legislation lies in the acceptance of the principal of gratuity as a compulsory statutory retiral benefit.” 4. Though the Payment of Gratuity Act is a Central enactment, but there is no specific reference of the same either in State List, Central List or in Concurrent List under Schedule VII to the Constitution of India. The significance of this legislation lies in the acceptance of the principal of gratuity as a compulsory statutory retiral benefit.” 4. Though the Payment of Gratuity Act is a Central enactment, but there is no specific reference of the same either in State List, Central List or in Concurrent List under Schedule VII to the Constitution of India. However, gratuity being held by the Hon’ble Apex Court as compulsory retiral benefit, it is referable to Entry 24 of List III of VIIth Schedule of the Constitution of India, which provides for welfare of labours including conditions of work, provident funds, employees liability workmen’s compensation, invalidity and old age pensions and maternity benefits. Section 4 of the Act provides for payment of gratuity to an employee on termination on his employment after he has rendered continuous service for not less than five years. The termination could be by superannuation or by retirement or resignation or on death or disablement due to accident or disease. Exception being that completion of continuous service of five years shall not be necessary where termination of an employee is due to death or disablement. The Act also provides for appointment of a controlling authority by the appropriate Government for administration of this Act and different controlling authorities can be appointed for different areas. 5. Section 7 of the Act provides for determination of the amount of gratuity in case of employee being eligible for the same by the controlling authority. The order passed by the controlling authority is appealable before the appropriate Government or such authority as may be specified by the appropriate Government at the instance of a person aggrieved. Thus, it is clear that the scheme of the Act not only provides for determination of the amount of gratuity by a competent authority under Section 7 (1) of the Act, but such a determination is appealable at the behest of any person aggrieved before the appropriate Government or such authority as may be specified by the appropriate Government in this behalf under sub-Section (7) of Section 7 of the Act. 6. In the case in hand, the order under challenge in the writ petition under Article 226 of the Constitution of India was an order made under appeal by the appellate authority under sub-section (7) of Section 7 of the Act. 6. In the case in hand, the order under challenge in the writ petition under Article 226 of the Constitution of India was an order made under appeal by the appellate authority under sub-section (7) of Section 7 of the Act. In the background of the above fact, it is to be seen as to whether a special appeal would lie against an order passed by the learned Single Judge in exercise of jurisdiction conferred by Article 226 of the Constitution of India in respect of such an order. Chapter VIII Rule 5 of the Allahabad Court Rules reads as under. “5. Special appeal : An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award—(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” 7. In the case of Vajra Yojna Seed Farm, Kalyanpur v. Presiding Officer, Labour Court II, U.P., Kanpur, (2003) 1 UPLBEC 496 , a Division Bench of this Court in paragraph 64 has held as under. “64. In the case of Vajra Yojna Seed Farm, Kalyanpur v. Presiding Officer, Labour Court II, U.P., Kanpur, (2003) 1 UPLBEC 496 , a Division Bench of this Court in paragraph 64 has held as under. “64. From the above discussions and looking into the provisions of U.P. Act No. 14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories:— (i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court. (ii) Judgment of one Judge in the exercise of revisional jurisdiction. (iii) Judgment of one Judge made in the exercise of its power of Superintendence. (iv) Judgment of one Judge made in the exercise of criminal jurisdiction. (v) Judgment or order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List. (vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act.” 8. The matter again came up for consideration before a Full Bench of this Court in the case of Sheet Gupta v. State of U.P. and others, AIR 2010 All. 46 . Full Bench answered the issue in paragraph 14 as under. “14. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. Full Bench answered the issue in paragraph 14 as under. “14. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances: 1.The judgment passed by one Judge in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court; 2. the order made by one Judge in the exercise of revisional jurisdiction; 3. the order made by one Judge in the exercise of the power of Superintendence of the High Court; 4. the order made by one Judge in the exercise of criminal jurisdiction; 5. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by (i) the tribunal, (ii) Court or (iii) statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India; 6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of (i) the Government or (ii) any officer or (iii) authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India.” 9. It is not in dispute that the Payment of Gratuity Act is a Central Act referable to Entry 24 in the Concurrent List of the Seventh Schedule to the Constitution of India. 10. It is not in dispute that the Payment of Gratuity Act is a Central Act referable to Entry 24 in the Concurrent List of the Seventh Schedule to the Constitution of India. 10. The issue is, thus, no longer res integra and it is well-settled that special appeal does not lie against the order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of the Government or any officer or authority made or purported to be made in exercise or purported exercise of appeal or revisional jurisdiction under any such Act, i.e., under any Uttar Pradesh Act or any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India. 11. In the case in hand, the order under challenge in the writ petition was passed by Appellate Authority under Payment of Gratuity Act, 1972 in exercise of powers conferred by sub-section (7) of Section 7 of the Act. Thus, according to the ratio of the Division Bench judgment in the case of Vajra Yojna Seed Farm (supra) as well as Full Bench judgment in the case of Sheet Gupta (supra), as also the provisions of Chapter VIII Rule 5 of the High Court Rules, the present appeal is not maintainable. The appeal, accordingly, stands dismissed as not maintainable.