1. The petitioner herein, a trust running Educational Institution, has brought under challenge, order dated 25th October 2011 passed by the Controlling Authority constituted under the provisions of the Payment of Gratuity Act, 1972 (the Act for short) whereby the first authority (i.e. Controlling Authority) has directed the petitioner to pay gratuity to the respondent - teacher.
2. As per the provisions contained under the said Act, more particularly, the provisions contained under Sub-Section 7 of Section 7 of the Act, an appeal before the Appellate Authority constituted under the said Act would lie against the order passed by the Controlling Authority.
3. Second proviso to the said Sub-Section obliges the employer to deposit the decreed/ordered amount (i.e. the amount quantified by the Controlling Authority and ordered to be paid) before preferring/filing appeal before the Appellate Authority.
4. Differently put, payment of the ordered amount is a condition precedent for maintaining the appeal.
5. The said provision i.e. Sub-Section 7 of Section 7 reads 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."
6. Despite the fact that the statutory remedy by way of an appeal is provided, the petitioner has approached this Court against the order passed by the Controlling Authority, without preferring the appeal.
7. In the result, the petitioner has not deposited the amount ordered by the Controlling Authority though it is a statutory requirement and pre-condition for maintaining an appeal.
8. When the petition is taken up for hearing, learned counsel appearing for the petitioner has tendered draft amendment. By virtue of the said amendment, the petitioner seeks to challenge vires of Section 13-A of the Act.
9. Under the circumstances, the Court would be required to direct the office to place the matter before the Division Bench, after requesting the Hon'ble the Acting Chief Justice to pass appropriate order for listing of the petition before the appropriate Bench.
10. However, before directing the office to take appropriate and necessary action in view of the draft amendment tendered by the petitioner, this Court is also required to consider as to whether the petition should be entertained or not, since the petitioner has approached the Court without approaching the Appellate Authority constituted under the Act and without exhausting the statutory remedy by way of appeal and without depositing the decreed/ordered amount.
11. Learned counsel for the petitioner admitted that the appeal has not been preferred and the petitioners have directly approached this Court.
12. However, he also submitted that the petitioner would make appropriate request before the Hon'ble First Court for listing of the matters and entertaining the petitions without requiring the petitioners to approach the Appellate Authority. For the said purpose, he requested for two days' time so that he can make appropriate request. Hence, S.O. to 12th January 2012.
(K.M.THAKER, J.) jani Top