Serial No. 02 Regular Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) 2849/2024 c/w WP(C) 2848/2024 WP(C) 2850/2024 UNION OF INDIA AND ORS. … Petitioner(s) Through: Mr. T.M. Shamsi, DSGI with Ms. Yasmeen Jan, Advocate Vs. REYHANA AKHTER AND ANR. ...Respondent(s) Through: None CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE JUDGMENT 04.04.2025 1. In the instant petitions, the issue raised by the petitioners herein are akin and analogous to each other as such are being disposed of jointly hereunder. 2. Facts emerging from the record of the petitions reveal that the private respondent 1 herein had filed an application before respondent 2 herein under and in terms of Rule 10 of the Payment of Gratuity Central Rules 1972 (for short the Rules of 1972) framed under section 15 of the Payment of Gratuity Act, 1972 (for short the Act of 1972), seeking a direction therein to the Management of petitioner 3- School herein for payment of gratuity on the premise that the said respondent 1 herein worked in the school being Army Goodwill Public School, Phalgam, w.e.f 06.10.2018 to 09.03.2024 as a teacher having been paid the last salary of Rs. 31,200/- for the month of February 2024 and having worked as such for the whole year i.e for 12 months entitles the applicants/private respondents herein to the payment of gratuity under the provisions of the Act and the Rules of 1972 respectively. 3. The non-applicants before the respondent-2 being petitioner 4 herein contested the claim setup by the applicants/ private respondents herein on the ground that the appointment of the applicants was for a period of 11 months and that though the school remained closed for 2 ½ months on account of winter vacations the applicants were paid salary for 12 months and that the school is being run on no profit basis, however, gets monetary support from the Indian Army under project Sadbhavana. 4. Respondent-2 herein on the basis of the case setup by the parties before it framed the following issue for consideration:- “Whether the applicant has rendered continuous service of 5 years as per section 4 of the Payment of Gratuity Act, 1972.” 5. The respondent 2 herein upon considering the respective case/s of the applicants/ private respondents herein as also the provisions of the Act and the Rules 1972 inasmuch as the judgments of the Apex Court and after computing the period of service rendered by the applicants/private respondents herein held the applicants/respondents herein entitled to the payment of gratuity for the period commencing from 11th April 2016 to 9th March 2024, as also interest thereon on the ground that the applicants/private respondents has rendered 5 years, 5 months and 4 days of service with the non- applicant/ petitioner 4 herein and consequently in terms of the impugned order directed the non-applicant/petitioner 4 herein to pay the amount of gratuity of Rs. 97,742/- along with simple interest @ 10% p.a. w.e.f 10.03.2024 to the actual date of payment of gratuity to the applicants/private respondents herein within 30 days of the receipt of the order. 6. The petitioners 1 to 3 herein have joined the petitioner 4 herein in the instant petition although the said petitioners were not a party before respondent 2 herein before whom the private respondents had maintained the application for Payment of Gratuity under the Act and Rules of 1972 respectively. 7. The petitioners have maintained the instant petitions inter alia on the grounds that the impugned order is bad in law and on the facts and that the respondent 2 herein did not decide the controversy in its real perspective as the private respondents were not paid salary for 12 months, but only for 11 months and that the bonus equivalent to one month salary after the payment of salary of 11 months, infact was paid to them and that the private respondents herein served and that the private respondents in fact, being a contractual appointee did not discharge continuous service but with a break in the service in the month of February, and, that the respondent 2 herein erred in directing the payment of gratuity to the private respondents herein and that in fact the Vice Principal who appeared before respondent 2 representing the School gave a wrong statement before the respondent-2 without the approval of the management of the School. Heard learned counsel for the petitioners and perused the record. 8. Before proceeding to advert to the issues raised in the instant petitions, it would be significant to mention here that the Act of 1972, has been enacted for providing a scheme for the payment of gratuity to the employees engaged in factories, mines, oil fields, plantation, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto. The Apex court in case titled as Ahmedabad Pvt. Primary Teachers Association Vs Administrative Officer reported in 2004 (1) SCC 755 has held that the Act of 1972 is a piece of welfare legislation and its provisions are in the nature of social security measures like employment insurance, provident fund and pension. It is also consistent view of the constitutional courts that the object of the Act 1972, is to ensure that a workmen is rewarded for the honest, efficient and faithful service that he or she renders for his employer’s benefit. It is also consistent view of the constitutional courts that a school whether aided or otherwise is an “establishment” within the meaning of said expression as is used in section 1(3) of the Act of 1972. The Apex Court further in case titled as Balbir Kaur & Anr. Vs Steel Authority of India Limited reported in 2000 (6) SCC 493 has held that the gratuity under the Payment of Gratuity Act, 1972 is no longer in the realm of charity but a statutory right given to the employee. It is also been laid down by the Apex Court in case titled as Allahabad Bank Vs. All India Allahabad Bank Retired Employees Association reported in 2010 (2) SCC 44, that the right to receive gratuity under the provisions of the Act of 1972 cannot be defeated by any instrument or contract and an employee cannot be deprived of the said valuable statutory right. 9. Keeping in mind the aforesaid position of law and reverting back to the case in hand, record reveals that the claim setup by the private respondents herein for payment of gratuity against the private respondents herein before respondent 2 herein has been duly contested by the petitioner 4 herein, having resulted into passing of the impugned order. 10. A bare perusal of section 7(7) of the Act 1972 suggests that a remedy of appeal is provided to a person aggrieved by an order passed under sub-section 4 of Section 7 to be preferred before the appropriate Government or such other Specified Authority within 60 days from the date of receipt of the order. Before proceeding further in the matter, it would be advantageous and appropriate to refer to section 7 sub section (1), Section 7 sub section (4) (a) (b) (c) and Section 7 sub section 7 hereunder, being relevant herein:- Section: 7 Determination of the amount of gratuity. (1) 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. Section 7 (4):- (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. (b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.] (c)] The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.] Section 7(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 subsection (4), or deposits with the appellate authority such amount.] 11. As has been noticed in the preceding paras, the non- applicant before the respondent 2 being petitioner 4 herein did contest the claim made by the private respondents herein for payment of gratuity and seemingly was well aware about the passing of the impugned order, yet has chosen to allow the limitation period prescribed for preferring of an appeal under section 7(7) supra of the Act , to exercise and even after considerable period of more than 5 months, by passing the said statutory remedy of appeal provided under section 7 (7) supra of the Act, chose to file the instant petitions. It is significant to mention here that although the extra ordinary writ jurisdiction vested in this Court under Article 226 of the Constitution is discretionary in nature and no limits can be placed upon the exercise of such discretion, yet law is settled that the same has to be exercised within recognized lines and subject to certain self imposed limitations, in that, it is settled law that in exercise of such discretionary jurisdiction, the High Court does not act either as a court of appeal or revision to correct mere errors of law of fact, and also that the jurisdiction also is not intended as an alternate remedy for relief which may be obtained by a party through a mode prescribed by a statute, and the High Court under Article 226 of the Constitution of India will not entertain a petition, and permit the machinery created by a statute to be by-passed, moreso when the determination of question in the petition would demand an elaborate examination of evidence or is a matter of large canvass. 12. As has been noticed in the preceding paras, the writ petitioners herein including petitioner 4 herein being the lone contesting party before respondent 2 herein consciously chose not to avail the remedy of appeal provided under the Act of 1972, within the prescribed period of limitation and filed the instant petitions after a considerable period of time while invoking extra ordinary writ jurisdiction of this Court while by-passing said statutory alternate remedy, inasmuch as have sought determination of questions which would demand an elaborate examination of evidence based upon disputed facts involving in the matter, this Court is not inclined to display indulgence and examine discretion moreso, in view of law laid down by the Apex Court in case titled as A.V. Venkataswaran, Collector of Customs Vs. Ramchand Shobraj Wadhwani and Anr. reported in 1961 SC 1506, wherein it has been held that where an alternate remedy is available, the petitioner cannot allow that to become time barred and then apply under Article 226 of the Constitution and urge that he has no remedy, and that, in such a case jurisdiction under Article 226 of the Constitution of India cannot be exercised unless there are exceptional circumstances to explain how the alternate remedy became time barred. Even such an explanation is missing in the instant petitions. 13. For what has been observed, considered and analyzed hereinabove inasmuch as considering the scheme and object of the Act 1972 the instant petitions are destined to fail. 14. Resultantly, the petitions fail and are accordingly dismissed, along with connected CMs. 15. Registry to place a copy of this order on each of the petitions. (JAVED IQBAL WANI) JUDGE SRINAGAR: 04.04.2025 “S.Nuzhat” Whether the order is speaking Yes/No Whether the order is reporting Yes/No