Heard Shri P. K. Sinha learned counsel for the petitioner, Dr. Ravi Kumar Mishra for respondent no.1 and the State Counsel for the respondent no.2.
By means of the instant petition, the petitioner assails the notice dated 03.11.2020 issued by the Tahsildar, Sadar Lucknow in terms of Rule 141 (3) in pursuance of the recovery certificate No.36 which was issued for compliance and execution of the judgment and order dated 17.02.2020 passed by the Prescribed Authority under the Payment of Gratuity Act, 1972 in PG Case No.31 of 2016.
Primarily the submission of Shri Sinha is that the proceedings regarding payment of gratuity was instituted by the private respondent no.2 before the Prescribed Authority which was registered as PG Case No.31 of 2016. The petitioner institution had appeared before the Prescribed Authority and contested the proceedings by raising various objections. Ultimately, the written submission was filed and by means of order dated 20.01.2020 the judgment was reserved by the Prescribed Authority. It is the specific case of the petitioner that after the judgment was reserved the petitioner was not communicated or informed of the decision/order passed by the Prescribed Authority. It is only on 05.11.2020 when the Collection Amin/Tehsildar in pursuance of the recovery certificate issued for execution of the judgment passed by the Prescribed Authority dated 17.02.2020 was sought to be pressed against the petitioner and only then for the first time the petitioner institution became aware of the order passed in the case No.31 of 2016.
Shri Sinha further submits that process as adopted by the Prescribed Authority in issuing the recovery certificate is dehors the provisions of the U.P. Payment of Gratuity Act. It has been submitted that in terms of Section 7 sub-section (7) of the Payment of Gratuity Act, 1972, a person aggrieved against an order passed by the Prescribed Authority has a right to prefer an appeal. The aforesaid sub section further is qualified with the proviso that entitles the person aggrieved to prefer an appeal which must be accompanied by a deposit of an amount equal to be amount of gratuity required to be deposited in sub section (4) or be deposit with the Appellate Authority such sum.
Shri Sinha has also drawn the attention of the Court to Section 8 for the Payment of Gratuity Act, 1972 wherein it provides that only if the amount of gratuity which is determined under Section 7 is not paid then on an application made to the Competent Authority in this behalf, a certificate of recovery can be issued to the Collector. It is further stated that a proviso appended to the aforesaid section states that before issuing such a certificate reasonable opportunity of showing cause must be issued to the employer.
The precise submission is that at no point of time the judgment dated 17.02.2020 was ever communicated to the petitioner and even otherwise in terms of Section 8 of the Act, 1972 prior to the issuance of the certificate, no notice was issued on the petitioner or served.
Another limb of the submission is that even no application was given by the private respondents which could have activated the authority to have issued the certificate. In view of the aforesaid, it has been submitted that the entire process as adopted by the respondents no.1 and 2 is completely de hors the provisions of the Act, hence illegal and requires to be set aside.
Dr. Ravi Kumar Mishra who was granted time to seek instruction submits that despite having tried to connect with the Competent Authority he has not been able to obtain instructions. However, he submits that despite the aforesaid the petitioner has a remedy of filing an appeal against the order dated 17.02.2020 in terms of sub section (7) of Section 7 of Act of 1972. It is further submitted that all the aforesaid issues as raised by the petitioner are capable of being looked into by the Appellate Authority and in case if the petitioner avails the remedy of appeal, his grievances can be adequately met and in view of availability of adequate and statutory remedy of appeal the instant petition may not be entertained.
The Court has considered the rival submissions of the parties and also perused the material available on record.
Shri Sinha could not dispute the fact that the Act of 1972 contemplates a provision of appeal against the order dated 17.02.2020. Having considered the aforesaid sub section (7) of Section 7 of the Act, 1972 it would indicate that a period of 60 days as provided for filing an appeal is from the date of receipt of the order. The submission and contention of the learned counsel for the petitioner is that he received the copy of the order dated 17.02.2020 only on 05.11.2020. In that view of the matter, the petitioner has time to assail the impugned order before the Appellate Authority. Even otherwise in terms of the proviso appended under sub section (7) the petitioner still has a further period of 60 days to seek the remedy of appeal upon showing sufficient cause for not filing the appeal within the prescribed period.
Be that as it may, taking a holistic view of the matter, this Court is of the view that since contentious questions are involved and it has also been informed that the amount in dispute has already been paid vide a cheque deposited with the Tehsildar as such all this matter can very well be considered by the Appellate Authority before whom all pleas and contentious shall be open to be considered on merits In view of the aforesaid, this Court directs that if the petitioner prefers an appeal before the Appellate Authority within a period of two weeks from today alongwith an application for interim relief, the Appellate Authority is directed to consider the same and pass appropriate order on the application for interim relief after hearing the parties concerned most expeditiously say within a period of two weeks. An endeavour shall also be made to decide the appeal also as expeditiously as possible.
With the aforesaid direction, the petition stands disposed of.
Order Date :- 21.1.2021 ank