It’s primary duty of employer to pay gratuity to employee: HC

 J&K High Court, Srinagar
J&K High Court, SrinagarMubashir Khan/GK File

Srinagar: The High Court of J&K and Ladakh on Tuesday observed that it was the primary duty of the employer to pay the gratuity to the employee as it dismissed a plea by a company against orders of the Assistant Labour Commissioner, Srinagar.

The Assistant Commissioner Labour on March 20, 2019 had allowed a plea by an employee in the private company wherein the employee had claimed that before resigning on June 20, 2017, from the services, he was having continuous service of seven years, 10 months and 10 days and was drawing monthly salary of Rs 24,800 and as such was entitled to Rs 1,14,462 as amount of gratuity with interest till payment.

Bench of Justice Wasim Sadiq Nargal after hearing the parties  answered in negative the  “moot question” on whether the writ petition under article 226 of the constitution against the order passed by the Assistant Labour Commissioner under the payment of Gratuity Act, 1972, was maintainable or not.

“Order passed by the assistant labour commissioner in exercise of its jurisdiction vested under law cannot be questioned by invoking the power of writ jurisdiction under Article 226, when, alternate and efficacious remedy is available under the statutory provisions,” the court said.

The court said that the writ petition was not maintainable under Article 226 of the constitution against the order passed by Respondent No 2 (Assistant Labour Commissioner) under Payment and Gratuity Act 1972 in light of the alternate and efficacious remedy being available under law by way of filing appeal within 60 days in terms of Sub Section 7 of Section 7 of the Payment and Gratuity Act 1972, which has not been availed by the petitioner (company).

The court also held that the requirement of filing a written application for gratuity in terms of Rule 7 of the Payment of Gratuity Rules 1972 to the employer by the employee is not mandatory.

“It is primary duty of the Employer to pay the gratuity to the employee as per Section 7(2) and 7(3) of the aforesaid Act or deposit the same with the Controlling Authority irrespective of the fact as to whether an application under Section 7(1) of the Act read with Rule 7 of the Gratuity Rules has been made or not,” it said.

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