IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : GRATUITY WP(C) No.19753/2004 Order reserved on : 18.7.2006. Date of Decision: August 21, 2006 Delhi Transport Corporation through The Chairman I.P.Estate, New Delhi Through Versus Petitioner Ms. Saroj Bidawat, Advocate 1. Shri Prem Singh Ex. Assit. Foreman, T.No.4203, 114, D.T.C Colony, G.T.K. Road, Rana Pratap Bagh, New Delhi-110009 2. The Controlling Authority Labour Office, Central Dist. Pusa Campus, New Delhi-110012 Through Respondents Mr. S.P. Arora, Advocate SHIV NARAYAN DHINGRA, J 1. By this writ petition, the petitioner has assailed an order of competent authority dated 12.7.2004 under Payment of Gratuity Act, whereby the competent authority allowed the application of the respondent No.1 and directed the petitioner to pay an amount of Rs.48,048.50/- with 10% interest to the Respondent No.1. 2. Brief facts relevant for disposal of this writ petition are that the respondent No.1 retired as Assistant Foreman from the services of the petitioner corporation on 31.12.1995. During service, he was allotted quarter No.114, DTC Colony, G.T.K. Road, Rana Pratap Bagh, New Delhi on license fee basis. After retirement, the respondent did not vacate the residential quarter alloted to him and continued to occupy it unauthorizedly and is still in occupation of the quarter. Since the workman was in unauthorized occupation of the quarter, he authorized management by filing an affidavit to retain
Rs.20,000/- from his gratuity amount on account of water and electricity charges and other damages for occupying the quarter. The Respondent No.1 was governed by rules and regulations of DTC who had introduced a pension scheme in February, 1992. As per the scheme, the gratuity payable to the employees whose pay did not exceed Rs.2500/- per month, was to be as per the Payment of Gratuity Act and in case of those employees whose wages exceed Rs.2500/-, gratuity was payable subject to maximum of 16½ times the emoluments or Rs.1,00,000/-, whichever was less. Since the respondent No.1 had opted for pension scheme, he was entitled for payment of gratuity in terms of the scheme applicable to him. The gratuity, as calculated, in accordance with the scheme in respect of the respondent amounted to Rs.,68,260.50/-. After retaining Rs.20,000/- on account of non vacation of the quarter, balance amount of Rs.48,260.50 was paid to him. The workman made an application under the Payment of Gratuity Act to the controlling authority demanding gratuity as per Payment of Gratuity Act amounting to Rs.88,309/- and claimed balance amount of Rs.40,048.50/-. The Controlling Authority vide impugned order dated 12.7.2004 held that respondent No.1 was entitled to gratuity of Rs.88,309/-. Since he had been paid only Rs.48,260.50, he was held entitled to balance amount of Rs.40,050/-. Controlling Authority also awarded interest @ 10% over the unpaid amount from the date it became due. 3. Respondent No.1 as regard his unauthorized occupation of government accommodation even after ten years of his retirement stated that under a social welfare scheme, he was provided the premises to live in. Under this scheme, the ownership of the house licensed to him by the petitioner, was to be transferred to him and the management had passed resolution with respect to transfer of ownership to the allottees but later on the management reversed this resolution and since he was entitled to ownership of the house under the previous resolution, he was still in occupation of the house and he was entitled to gratuity as per the Payment of Gratuity Act. 4. The order of the Competent Authority has been challenged on the ground that the order was perverse. The competent authority failed to appreciate that the wages of the respondent were in excess of Rs.2500/- per month and he was not covered under the Act and he was entitled to gratuity only as per pension scheme for which he had opted and as per this scheme, gratuity payable to him was Rs.68,260.50 i.e. 16½ times of his salary. The Authority also did not consider that the respondent No.1 had not challenged the implementation of Pension Scheme. The Controlling Authority wrongly disallowed retention of Rs.20,000/- by the Corporation because the petitioner had not vacated the house. 5. In the counter affidavit, it is stated that the writ petition was not maintainable as there is a provision under Section 7(7) of the Payment of Gratuity Act for preferring an appeal before the appropriate government within 60 days against the order of the Controlling Authority. Since no appeal was preferred, the order of the Controlling Authority had become final and no writ was maintainable. It is submitted that in Shri Dhanwant Rai and ors. Vs. Delhi Transport Corporation CW No.6573/2003 decided on 20th September, 2004 this Court disposed of a Batch of writ petitions and observed that respondent could not have withheld the payment of gratuity on account of
non vacation of government alloted accommodation or for non furnishing of 'no demand certificate. The petitioner had filed a LPA which was still pending and there were no stay against the judgment. The respondent was depositing rent @ Rs.50 per month despite the fact that in default of payment of rent, still his gratuity could not be withhold. The affidavit regarding deduction of Rs.20,000/- was coercively obtained by the petitioner from him. 6. A perusal of the judgment dated 29.9.2004 delivered in WP(C) No.10834/2004 would show that this court had ordered that non vacation of government alloted accommodation would not provide tenable cause to withheld payment of gratuity. This judgment had not taken note of Supreme Court's judgment in Wazir Chand vs. Union of India and others 2001 SCC (L&S) 1038 whereby Supreme Court held: These appeals are directed against the orders of the Central Administrative Tribunal rejecting the claim of the appellant, who happens to be a retired railway servant. Admittedly, the appellant even after superannuation continued to occupy the government quarters, though being placed under hard circumstances. For such continuance, the Government, in accordance with rules, has charged penal rent from the retired government servant, and after adjusting the dues of the Government, the balance amount of the gratuity, which was payable, has been offered to be paid, as noted in the impugned order of the Tribunal. The appellant's main contention is that in view of the Full Bench decision of the Tribunal against which the Union of India had approached this Court and the special leave application was dismissed as withdrawn, it was the bounden duty of the Union of India not to withhold any gratuity amount and, therefore, the appellant would be entitled to the said gratuity amount on the date of retirement, and that not having been paid, he is also entitled to interest thereon. We are unable to accept this prayer of the appellant in the facts and circumstances of the present case. The appellant having unauthorizedly occupied the government quarters was liable to pay the penal rent in accordance with rules and, therefore, there is no illegality in those dues being adjusted against the death-cum-retirement dues of the appellant. We, therefore, see no illegality in the impugned order which requires our interference. The appeals stand dismissed. 7. The judgment in WP(C) No.6573/2004 would show that Board of Directors of DTC had passed a resolution deciding to allot quarters to respective employees of DTC. This resolution was later on withdrawn. The allottees of flats filed a suit bearing suit No.308/1983, challenging this act of DTC of withdrawing the resolution. The civil court decreed the suit in favour of DTC employees directing DTC to transfer ownership of respective quarters to respective allottees. However, on an appeal against the same being RFA(05)/04 of 1992, a Division Bench of this court set aside the order and decree of the lower court. Thus, there was no right of the petitioner to continue to live in the accommodation allotted to him during service. The petitioner retired in 1995 and even after about eleven years of retirement and despite the judgment of this court setting aside the decree in respect of every occupant, he has not vacated the quarter. Recently in Secretary ONGC Vs.V.U. Warrior 2005 SCC (L&S) 676, Supreme Court held that in case where the accommodation alloted was not vacated by the employees of company, High Court was not justified in exercising extraordinary discretion in favour of the
employees and directing the employer not to adjust penal rent of the quarter out of gratuity. Supreme Court held that action of deducting due penal rent from gratuity for the period the quarter remained in unauthorized occupation of the employee, was not illegal. 8. I am of the view that the petitioner had every right to retain the amount of Rs.20,000/- which was retained not only in case of respondent No.1 but in respect of all those who had not vacated the house. The plea of the respondent No.1 that affidavit was got executed from him coercively cannot be believed. He did not raise this plea at any other forum before he filed application for claiming gratuity after about seven years of his retirement. 9. The next question to be considered is as to how much amount the respondent was entitled as gratuity. The petitioner in its petition has submitted that the respondent No.1 was governed by the DTC Office Order No.161-5(4)/92 dated 27.11.1992 by which the pension-cum-gratuity scheme was introduced for DTC employees. This was an optional scheme and respondent No.1 had opted for this scheme. There is no denial of this fact. Since the respondent had opted for Pension-cum-Gratuity Scheme, respondent was bound by his option. In my opinion, where an option is put before a workman to subscribe to a scheme or not and he choses to subscribe to the scheme and volunteers to receive benefit of the scheme, he cannot later on say that irrespective of his receiving benefits under the scheme, he should also be given benefit under Payment of Gratuity Act as if he had not opted for the scheme. The respondent No.1 had opted for pension-cum- gratuity scheme. He, therefore, cannot claim gratuity under Payment of Gratuity Act and continue to take benefit of pension under the scheme. I, therefore, consider that he is entitled for gratuity as per pension and gratuity scheme and the gratuity was rightly calculated at Rs.68260/-. 10. The other issue raised by the respondent is that the writ was not maintainable. If the petitioner was not satisfied with order of Controlling Authority petitioner should have filed an appeal against the order. Instead of availing the remedy of appeal, petitioner has approached this court taking the ground that the Tribunal had no jurisdiction. The writ of the petitioner was not maintainable. 11. The existence of alternative remedy is not an absolute bar on maintainability of writ petition. In AIR 1969 SC 556 Supreme Court held as under: It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to al litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue writ. But, as observed by this Court in Rashid Ahmed vs. Municipal Board, Kairana, 1950 SCR 566 = (AIR 1950 SC 163), the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-
imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595, 605= (AIR 1958 SC 86, 93), S.R. Das, C.J., speaking for the Court, observed: In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol.II, p.130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster- General Ex parte Carmichael, (1928(1) KB 291) a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior Court will readily issue a certiorari i n a case where there has been a denial of natural justice before a Court of summary jurisdiction. The case of Rex v. Wandsworth Justice Ex parte Read, 1942 (1) KB 281 is an authority in point. In that case a man had been convicted in a Court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction. There are at least two well-recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.-(see the decisions of this Court in Carl Still G.m.b.H.v. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co.Ltd. v. State of Bihar, (1955) 2 SCR 603=(AIR 1955 SC 661). In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. (See 1958 SCR 595, 605=(AIR 1958 SC 86, 93). 11. In the present case, the Authority under Payment of Gratuity Act, ignored the law laid down by Supreme Court and also assumed jurisdiction when it had none. I consider the writ was maintainable despite non availing of remedy of appeal.
12. I, therefore, allow this writ petition. The order of competent authority, directing the petitioner to pay an amount of Rs.40,048/- with 10% interest per annum is set aside. No order as to cost. Sd/- SHIV NARAYAN DHINGRA, J