1. The petitioner has brought under challenge the order dated 30.12.2011 passed by the Controlling Authority constituted under the Payment of Gratuity Act, 1972 (hereinafter referred to as the "Act"). The order impugned in present petition has been passed by the Controlling Authority in application preferred by the respondent under Section 7 of the Act. Furthermore, the Controlling Authority has passed the order in exercise of power conferred by virtue of Section 7 of the Act.
2. Under the circumstances, the order impugned in present petition is, an order which is passed by the statutory authority constituted under the provisions of the Act for adjudicating and determining of dispute relating to the default in payment or short payment of gratuity and other related issues. The order has been passed in exercise of power conferred under Section 7 of the Act.
3. By virtue of the provisions contained under Sub-section (7) of Section 7, the statute has constituted appellate authority where the Appeal against order passed however Section 7 of the Act by the controlling authority, is maintainable.
Under the circumstances, statute provides for statutory remedy by way of Appeal.
The second proviso of Sub-section (7) of Section 7 requires appellant to deposit decree amount for maintaining Appeal. The said Section 7 (1) Section 7(2) and Section 7(3) and Section 7(3A) read thus:-
7. Determination of the amount of gratuity.-
A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:
Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.]
4. So far as the Appeal proceedings are concerned, the relevant provision is contained under Sub-section (7) of Section 7 which read thus:-
"(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.]"
5. Since the petitioner herein has preferred present petition without approaching appellate authority and without preferring statutory Appeal as provided under the scheme against order passed by the appellate authority, I am not inclined to entertain present petition against order passed by the controlling authority and instead the petitioner is relegated to the Appeal remedy provided under the Act.
It would be open to the petitioner to prefer appropriate Appeal proceedings before the appellate authority, in accordance with law, against order passed by the controlling authority. It is clarified that this Court has note examined the impugned order on merits and the petition is not entertained only on the limited ground viz. the provision for statutory Appeal against order of the first authority.
6. With the aforesaid clarification and direction the petition is disposed of accordingly.
(K.M.THAKER,J.) Suresh* Top