AUXILIUM CONVENT SCHOOL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This intra-Court appeal at the instance of the writ petitioner is directed against the order dtd. 2/3/2020 in W.P. 18298 (W) 2019. In the said writ petition, the appellant/ institution had challenged the order passed by the controlling authority under the provisions of the Payment of Gratuity Act, 1972 (hereinafter referred to as the "said Act") dtd. 25/9/2017 and also the certificate proceedings which were pending before the Learned District Magistrate and Collector, South 24 Parganas. The learned Single Bench had dismissed the writ petition primarily on two grounds, viz. that the order passed by the controlling authority dtd. 25/9/2017 was appealed against before the appellate authority under the said Act in G.R.A. 8 of 2017 and the said appeal stood dismissed by order dtd. 10/5/2018 on the ground that the appellant had not complied with the requirement of pre-deposit as provided under the Second proviso to Sec. 7(7) of the said Act. The second ground on which the learned Single Bench had dismissed the writ petition is on the ground that the appellant has not challenged the order passed by the appellate authority in the writ petition but attempted to canvass the case on merits.

(2.) In our considered view, the finding rendered by the learned Single Bench that the appellant having challenged the order passed by the controlling authority before the appellate authority cannot canvass the merit of the matter in a writ petition is well founded. The second aspect which weighed in the mind of the learned Writ Court was that there was no challenge to the order passed by the appellate authority dtd. 10/5/2018. Though such finding may be right, in our considered view, relief need not be denied to the appellant on such a technical ground more so, when the appellant had questioned the jurisdiction of the controlling authority to compute the gratuity and several grounds have been raised on the merits of the matter.

(3.) Learned Advocate appearing for the appellant submitted that the amount of gratuity as computed by the controlling authority has been paid to the deceased employee. However, copy of such receipt is not readily available with the learned Advocate appearing for the appellant. In any event, if such payment had been effect prior to 10/5/2018, nothing prevented the appellant from producing the copy of the receipt before the appellate authority. If that had been done, there would have been no occasion for the appellate authority to record non- compliance of the statutory requirement under the Second proviso to Sec. 7(7) of the said Act.