In Commissioner Of Income Tax v. M.k. Chandrasekharan Pillai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940WP(C).No. 5632 of 2018 PETITIONER/S: 1THE BOARD OF DIRECTORS OF THE FACT (CD) EMPLOYEESCO-OPERATIVE CONSUMER STORE LTD, NO.E 285, AMBALAMEDUP.O, KOCHI, REPRESENTED BY ITS HONORARY SECRETARY.CO-OPERATIVE CONSUMER STORE LTD, NO.E 285, AMBALAMEDUP.O, KOCHI, REPRESENTED BY ITS HONORARY SECRETARY. 2THE FACT (CD) EMPLOYEESCO-OPERATIVE CONSUMER STORE LTD, NO.E 285, AMBALAMEDUP.O, KOCHI,REPRESENTED BY ITS PRESIDENT.CO-OPERATIVE CONSUMER STORE LTD, NO.E 285, AMBALAMEDUP.O, KOCHI,REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.P.P.JACOB RESPONDENT/S: 1M.K. CHANDRASEKHARAN PILLAIKRISHNA NIVAS, VIKAS NAGAR, TRIPUNITHURA - 682 301.KRISHNA NIVAS, VIKAS NAGAR, TRIPUNITHURA - 682 301. 2THE DEPUTY LABOUR COMMISSIONER/CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACTCIVIL STATION, KAKKANADU,KOCHI - 682 030.UNDER PAYMENT OF GRATUITY ACTCIVIL STATION, KAKKANADU,KOCHI - 682 030. BY ADVS. SRI.ARUN PAUL (KAPRASSERY)SMT.M.M.FATHIMA JALEENASRI.ARUN PAUL (KAPRASSERY)SRI.K.A.HAZANSRI.K.P.WILSONSRI.K.R.SAJITHSRI.V.J.JAMES OTHER PRESENT: SMT C.S SHEEJA, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The 1[st] petitioner is the Board of Directors ofthe 2[nd] petitioner, which is a Co-operative Societyregistered under the provisions of the Kerala Co-operative Societies Act, 1969. The petitionershave filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ ofcertiorari to quash Ext.P5 order dated 27.12.2017of the 2[nd] respondent Deputy Labour Commissioner,who is the Controlling Authority under the Paymentof Gratuity Act, 1972. 2. On 20.02.2018, when this writ petition cameup for admission, this Court issued urgent noticeon admission by speed post to the 1[st] respondentreturnable within three weeks. The learned SeniorGovernment Pleader took notice on admission forthe 2[nd] respondent. This Court granted an interimstay of all recovery proceedings pursuant toExt.P5 order for a period of one month, oncondition that the petitioners deposit 50% of the 3 amount of gratuity payable as per Ext.P5 order,within ten days. 3. A counter affidavit has been filed onbehalf of the 1[st] respondent opposing the reliefssought for in this writ petition. 4. On 05.09.2018, when this writ petition came up for consideration, it was submitted by thelearned counsel for the 1[st] respondent that Ext.P5order of the 2[nd] respondent is an appealable order. 5. Heard the learned counsel for thepetitioners, the learned counsel for the 1[st]respondent and also the learned Senior GovernmentPleader appearing for the 2[nd] respondent. 6.The sole issue that arises for consideration in this writ petition is as towhether the challenge made against Ext.P5 order ofthe 2[nd] respondent could be entertained in a writpetition filed under Article 226 of theConstitution of India. 3. A counter affidavit has been filed onbehalf of the 1[st] respondent opposing the reliefssought for in this writ petition. 4. On 05.09.2018, when this writ petition came up for consideration, it was submitted by thelearned counsel for the 1[st] respondent that Ext.P5order of the 2[nd] respondent is an appealable order. 5. Heard the learned counsel for thepetitioners, the learned counsel for the 1[st]respondent and also the learned Senior GovernmentPleader appearing for the 2[nd] respondent. 6.The sole issue that arises for consideration in this writ petition is as towhether the challenge made against Ext.P5 order ofthe 2[nd] respondent could be entertained in a writpetition filed under Article 226 of theConstitution of India. 7.Admittedly, Ext.P5 order of the 2[nd]respondent Deputy Labour Commissioner is oneissued under sub-section (4) of Section 7 of thePayment of Gratuity Act. As per sub-section (7) ofSection 7 of the Act, any person aggrieved by anorder under sub-section (4) may, within 60 daysfrom the date of receipt of the order, prefer anappeal to the appropriate Government or such otherauthority as may be specified by the appropriateGovernment. Going by the first proviso to sub-section (7) of Section 7, the appropriateGovernment or the appellate authority, as the casemay be, may, if it is satisfied that the appellantwas prevented by sufficient cause from preferringthe appeal within the said period of 60 days,extend the said period by a further period of 60days. Going by the second proviso to sub-section(7) of Section 7, no appeal by an employer shallbe admitted unless at the time of preferring theappeal, the appellant either produces acertificate of the controlling authority to the effect that the appellant has deposited with himan amount equal to the amount of gratuity requiredto be deposited under sub-section (4), or depositswith the appellate authority such amount. 8.In Commissioner of Income Tax V. ChhabilDas Agarwal [(2014) 1 SCC 603] the Apex Courtreiterated that, non-entertainment of a writpetition under Article 226 of the Constitution ofIndia when an efficacious alternative remedy isavailable is a rule of self-imposed limitation. Itis essentially a rule of policy, convenience anddiscretion rather than a rule of law. Undoubtedly,it is within the discretion of the High Court togrant relief under Article 226 of the Constitutionof India, despite the existence of alternativeremedy. However, High Court must not interfere ifthere is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing thesame, unless he has made out an exceptional case warranting such interference or there existssufficient ground to invoke the extraordinaryjurisdiction under Article 226. 9. In Pavithran V. State of Kerala (2009 (4)KHC 4), a Full Bench of this Court held that,whenever an adverse order is passed against aperson, unless the same is challenged before theappropriate forum, within the prescribed timelimit, the said order will become final. 10. Having considered the submissions made bythe learned counsel on both sides, in the light ofthe law laid down by the Apex Court in thedecision referred to supra, conclusion isirresistible that when a statutory remedy isavailable under sub-section (7) of Section 7 ofthe Payment of Gratuity Act before the RegionalJoint Labour Commissioner, Ernakulam in order tochallenge Ext.P5 order passed by the 2[nd] respondentDeputy Labour Commissioner, the petitioners cannotinvoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution ofIndia. 10. Having considered the submissions made bythe learned counsel on both sides, in the light ofthe law laid down by the Apex Court in thedecision referred to supra, conclusion isirresistible that when a statutory remedy isavailable under sub-section (7) of Section 7 ofthe Payment of Gratuity Act before the RegionalJoint Labour Commissioner, Ernakulam in order tochallenge Ext.P5 order passed by the 2[nd] respondentDeputy Labour Commissioner, the petitioners cannotinvoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution ofIndia. In the result, this writ petition filed on19.02.2018 is dismissed, without prejudice to theright of the petitioners to challenge Ext.P5 orderbefore the appellate authority by invoking theprovisions under sub-section (7) of Section 7 ofthe Payment of Gratuity Act, after complying withthe statutory requirements. It is submitted by the learned counsel for thepetitioners that in terms of the interim order ofthis Court dated 20.02.2018, the petitioners havealready deposited 50% of the amount of gratuitypayable as per Ext.P5 order, before the 2[nd]respondent Deputy Labour Commissioner. It would be open to the 1[st] respondent to makean application before the 2[nd] respondent DeputyLabour Commissioner for disbursement of the saidamount. If any such application is received, the2[nd] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioners and also to the 1[st] respondent. Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE PHOTOCOPY OF THE LETTER ISSUED BY G.VIJAYAN NAIR TO THE SECOND PETITIONERDATED 14.7.2009 EXHIBIT P2 :TRUE PHOTOCOPY OF THE APPLICATION FOR GRATUITY FILED BY FIRST RESPONDENT BEFORE THE SECOND RESPONDENT WITH DELAYPETITION DATED 15.11.2016. EXHIBIT P3 :TRUE PHOTOCOPY OF THE NOTICE ISSUED BY SECOND RESPONDENT TO THE PETITIONERS DATED 21.10.2017SECOND RESPONDENT TO THE PETITIONERS DATED 21.10.2017 EXHIBIT P4 :TRUE PHOTOCOPY OF THE STATEMENT FILED BY THE PETITIONERS DATED 17.11.2017 BEFORE THE SECOND RESPONDENT BY THE PETITIONERS DATED 17.11.2017 BEFORE THE SECOND RESPONDENT EXHIBIT P5 :TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DATED 27.12.17THE SECOND RESPONDENT DATED 27.12.17 RESPONDENT'S/S EXHIBITS: EXHIBIT R1(A) :TRUE COPY OF THE APPLICATION DATED 03.09.2012 FILED BY THE 1ST RESPONDENT TO THE PETITIONER SOCIETY 03.09.2012 FILED BY THE 1ST RESPONDENT EXHIBIT R1(B) :TRUE COPY OF THE LETTER NO.759/12/CO DATED 10.10.2012 FROM THE ASST.REGISTRAR CO-OPERATIVE SOCIETIES KUNNATUNAD TO THE 1ST RESPONDENT DATED 10.10.2012 FROM THE ASST.REGISTRAR CO-OPERATIVE SOCIETIES KUNNATUNAD TO THE 1ST RESPONDENT EXHIBIT R1(C) :TRUE COPY OF THE LETTER DATED 09.10.2012 FROM THE PETITIONER SOCIETY SIGNED BY THE PRESIDENT OF THE PETITIONER SOCIETY.09.10.2012 FROM THE PETITIONER SOCIETY SIGNED BY THE PRESIDENT OF THE PETITIONER SOCIETY. EXHIBIT R1(D) :TRUE COPY OF THE ORDER DATED 29.09.2014IN WP(C)25103/2012IN WP(C)25103/2012 EXHIBIT R1(E) :TRUE COPY OF THE ORDER DATED 06.11.2014IN WRIT APPEAL NO.1591/2014IN WRIT APPEAL NO.1591/2014 EXHIBIT R1(F) :TRUE COPY OF THE ORDER NO.HRMP NO.650/2016 DATED 15.07.2016 OF THE HUMAN RIGHTS COMMISSIONNO.650/2016 DATED 15.07.2016 OF THE HUMAN RIGHTS COMMISSION EXHIBIT R2(A) :TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN WPC.NO. 25103/2012 DATED 29-9-2014.HON'BLE HIGH COURT IN WPC.NO. 25103/2012 DATED 29-9-2014. EXHIBIT R2(B) :TRUE COPY OF THE ORDER OF THE HUMAN RIGHTS COMMISSION DATED 15-7-2016.RIGHTS COMMISSION DATED 15-7-2016. AV/26/9