* THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

W.A.No.102 of 2024

% 22.02.2024

# The District Cooperative Central Bank Ltd.,

Kakinada, rep. By its Chief Executive Officer

(CEO), Nagimalithota, Kakinada,

East Godavari District, Andhra Pradesh. …. Petitioner

Versus

$ Sri Jandhyam Venkata Rao,

S/o Late Achutararamayya, Aged 67 years,

Occ: Retd., Employee, R/o D.No.5-10-25/q,

Gas Office Street, Ward No.27,

Bank Colony, Tuni, East Godavari District,

Andhra Pradesh & Others. …. Respondents

! Counsel for the Petitioner : Sri Srinivas Basava

! Counsel for the Respondents : 1) Sri Syed Arif Basha

2) Sri G.V.S. Kishore Kumar,

Learned G P (S-I)

3) Sri S.Brahmananda Reddy

< Gist:

> Head Note:

? Cases referred: (2006) 11 SCC 634

2

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

W.A.No.102 of 2024

# The District Cooperative Central Bank Ltd.,

Kakinada, rep. By its Chief Executive Officer

(CEO), Nagimalithota, Kakinada,

East Godavari District, Andhra Pradesh. …. Petitioner

Versus

$ Sri Jandhyam Venkata Rao,

S/o Late Achutararamayya, Aged 67 years,

Occ: Retd., Employee, R/o D.No.5-10-25/q,

Gas Office Street, Ward No.27,

Bank Colony, Tuni, East Godavari District,

Andhra Pradesh & Others. …. Respondents

DATE OF ORDER PRONOUNCED: 22.02.2024

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

1. Whether Reporters of Local Newspapers may

be allowed to see the Order? Yes/No

2. Whether the copies of Order may be marked

to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair

copy of the Order ? Yes/No

_____________

G. NARENDAR, J

________________

NYAPATHY VIJAY, J

3

THE HONOURABLE SRI JUSTICE G. NARENDAR

AND

THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

W.A.No.102 of 2024

JUDGMENT: (Per Hon’ble Sri Justice G.Narendar)

Heard Sri Srinivas Basava, Learned Counsel for the Appellant and

Sri Syed Arif Basha, Learned Counsel, Sri G.V.S. Kishore Kumar,

Learned G.P (S-I) and Sri S.Brahmananda Reddy, Learned Counsel

appearing for the Respondents.

2. The appellant i.e., the District Cooperative Central Bank Ltd.,

is before this Court being aggrieved by the Order dated 10.05.2023

passed by the Learned Single Judge in W.P.No.39157 of 2018. The

Learned Single Judge by the order impugned has been pleased to

appreciate the following prayer.

“to issue an order or direction more particularly in the nature of

Writ of Mandamus declaring the action of the 3rd respondent Bank in not

paying the terminal benefits i.e., Gratuity for 20 months and Encashment

of Earned Leave for 240 days to the petitioner after adjustment of

amount already paid in accordance with Clause 3 of Memorandum of

Intent dated 11.01.2013 as well as the inaction on the part of the 2nd to

4th respondents in acting on the petitioners representations dated

17.09.2018 as illegal, arbitrary, unjust and violative of Articles

14, 19 and 21 of the Constitution of India and consequently direct the 3rd

respondent Bank to pay the Gratuity and Encashment of Earned Leave of

the petitioner as per the Service Regulations of the 3rd respondent Bank

and pass such other order or orders.”

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3. While appreciating the same, the Learned Single Judge has been

pleased to grant relief in the following manner and the relevant paras

10 to 12 of the order reads as under:-

“10. Paragraph No.12 of the Judgment passed in W.A. No.139 of 2023

reads thus:

12) Therefore, from a reading of this Memorandum of intent it is clear that

terminal benefits to Special Category Assistants, who were taken into

services as on 01.03.2009 and thereafter rendered 5 years of service are as

per the Point No.1, for the others like the writ petitioner Point No.3 is

applicable. Admittedly, the writ petitioner joined the bank on 02.09.2009

and retired on 30.03.2016 (para 11 of the counter affidavit). Therefore, it is

clear that the writ petitioner has completed 5 years of service and is,

therefore, entitled to terminal benefits as per the service regulations.

11. As per the orders passed in W.P.No.28820 of 2018 as well as

W.A.No.139 of 2023, the employee who has completed 5 years of service

in the Bank (DCCB) is entitled for 20 months Gratuity and 240 days

Encashment of Earned Leave. In the present case, the petitioner was

recruited by the 3rd respondent in the year 1978 as a Paid secretary

under the “Half a Million Jobs Programme”. In pursuance of

G.O.Ms.No.67, dated 20.02.2009, the petitioner was reverted back to the

service of the 3

rd

respondent as Special Category Assistant and thereafter

petitioner was retired from service on 31.12.2016. Thus, the petitioner

has completed more than 5 years of service in the Bank. Therefore, the

petitioner has come into zone of consideration for the entitlement of 20

months Gratuity and 240 days Encashment of Earned Leave.

12. The issue involved in this petition is squarely covered by the order

of this Court in W.P.No.28820 of 2018 dated 31.10.2022.”

4. On a reading of para 12, it is seen that the Learned Single Judge

has been pleased to place reliance on the order passed by a Learned

Single Judge of this Court rendered in W.P.No.28820 of 2018, dated

5

31.10.2022, against which W.A.No.139 of 2023 has been preferred.

Copies of the orders in W.P.No.28820 of 2018 and in

W.A.No.139 of 2023 are enclosed along with the material papers of this

Writ Appeal.

5. It is stated that the Learned Single Judge in

W.P.No.28820 of 2018 proceeded to compute the dues and issued

directions for payment of the same. Aggrieved the reby,

W.A.No.139 of 2023 has been preferred. A Coordinate Bench of this

Court has been pleased to affirm the orders of the Learned Single

Judge and in Para 16, it placed reliance on the ruling in S.S. Rana vs.

Registrar of Cooperative Societies

1

to hold that the Writ Petitions

are maintainable against Cooperative Societies. This is a finding

regarding maintainability of a Writ Petition and has attained finality.

6. The fact remains that, what is now prayed in the instant Writ

Appeal is calling upon the Court to carry out an exercise, whereby the

Court is required to compute and ascertain the amounts due to the

respondents under the head of Gratuity.

1

(2006) 11 SCC 634

6

7. We have perused the orders passed and relied upon Writ

Petitions and the Writ Appeal. We see that there is no reference to

Section 7 of the Payment of Gratuity Act, 1972 (for short “the Act”).

The Act is a self-contained enactment, whereby the Act provides for

remedial measures and also for punitive actions so far it relates to any

omission or commission that arises under the Act. The Act provides for

an efficacious, alternative and statutory remedy by way of a statutory

application, for the very purpose sought for in the Writ Petition.

The litigant having been vested with an alternative remedy, it is not

demonstrated as to why the same should be by-passed.

8. Section 7 of the Act reads as under:-

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.

(2) 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 gratuity so determined.

(3) 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.

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(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) (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.]

(d) The controlling authority shall pay the amount deposited,

including the excess amount, if any, deposited by the employer, to

the person entitled thereto.

(e) As soon as may be after a deposit is made under clause (a), the

controlling authority shall pay the amount of the deposit –

(i) to the applicant where he is the employee; or

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(ii) where the applicant is not the employee, to the nominee or, as

the case may be, the guardian of such nominee or] heir of the

employee if the controlling authority is satisfied that there is no

dispute as to the right of the applicant to receive the amount of

gratuity.

(5) For the purpose of conducting an inquiry under sub-section (4),

the controlling authority shall have the same powers as are vested in

a court, while trying a suit, under the Code of Civil Procedure, 1908

(5 of 1908), in respect of the following matters, namely :

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents,

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses.

(6) Any inquiry under this section shall be a judicial proceeding within

the meaning of sections 193 and 228, and for the purpose of section

196, of the Indian Penal Code, 1860 (45 of 1860).

(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.]

9

(8) The appropriate Government or the appellate authority, as the

case may be, may, after giving the parties to the appeal a reasonable

opportunity of being heard, confirm, modify or reverse the decision

of the controlling authority.

9. A reading of Section 7 of the Act clearly demonstrates that the

act of computing dues and directing payment and the first adjudication

of any dispute in this regard, is in the exclusive domain of the

Controlling Authority, constituted under the Central Act of 1972 and

that being the position under the statute, we are of the considered

opinion that a Writ Petition is not maintainable in view of the

availability of an efficacious and alternate remedy

10. Learned Counsel for the respondents is unable to make out the

case, as to why the efficacious and alternative remedy of an application

provided under Section 7(4) of the Act, ought not to be

complied with.

11. In that view of the matter, the Writ Appeal requires to be

allowed on the ground of maintainability and the order of the Learned

Single Judge is set aside and the Writ Petition stands rejected.

The rejection of the Writ Petition will not foreclose or preclude the

petitioners from approaching the Competent/Controlling Authority and

prefer necessary applications for adjudication of their claims regarding

non-payment of gratuity. If such applications are made within one

10

month from the date of receipt of copy of this order,

the competent/controlling authority shall endeavour to hear and

dispose of the same within three (3) months thereafter.

12. Accordingly, the Writ Appeal is allowed. There shall be no order

as to costs. As a sequel, pending applications, if any, shall stand

closed.

__________________

JUSTICE G. NARENDAR

__________________ ___

JUSTICE NYAPATHY VIJAY

Date: 22.02.2024

Note: L.R copy be marked

(B/o)

IS/KLP

11

HONOURABLE SRI JUSTICE G. NARENDAR

AND

HONOURABLE SRI JUSTICE NYAPATHY VIJAY

W.A.No.102 of 2024

Date: 22.02.2024

Note: L.R copy be marked

(B/o)

IS/KLP