The right to appeal under section 7(7) of the Payment of Gratuity Act, 1972 is a statutory right that cannot be taken away by the failure to serve notice in Form 'R'.

JUDGMENT :

RAJA BASU CHOWDHURY, J.

1. Two writ applications, one filed by the Delta Limited challenging an order dated 3rd September, 2021 whereby the appellate authority under the Payment of Gratuity Act 1972, was, inter-alia, pleased to dismiss the said appeal on the ground of limitation and the other writ application being WPA 4121 of 2021 filed by the workman concerned, inter-alia, praying for execution of the certificate issued by the controlling authority under the Payment of Gratuity Act, 1972, through the certificate officer having jurisdiction are taken up for consideration together.

2. Records would reveal that the petitioner in WPA 4121 of 2021 (hereinafter referred to as the “workman”) was engaged by Delta Limited (hereinafter referred to as the “company”) on 10th January, 1966.

3. It is the contention of the workman that the workman was a permanent employee under the company and had attained the age of superannuation on 21st February 2005. Thereafter following his superannuation sometimes on or about 25th March 2005, provident fund accumulation was disbursed in favour of the workman. After a lapse of more than a decade from the date of superannuation, the workman had filed an application in Form “I” before the company in terms of provisions contained in the West Bengal Payment of Gratuity Rules, 1973 (hereinafter referred to as the said Rules).

4. It is the contention of the workman that since gratuity remained unpaid, despite receipt of Form “I” an application in form “N” was filed by the workman before the controlling authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as the said Act). Since then proceedings were held before the controlling authority.

5. It is the contention of the company that the company was completely unaware with regard to the factum of disposal of the application in Form “N” until the time mentioned hereinafter.

6. In the interregnum, a general lockdown all over the country was imposed on 23rd March, 2020. The lockdown was partially relaxed sometimes in June 2020. Incidentally however, a show cause notice dated 23rd September, 2020 was issued by the controlling authority calling upon the company to show cause on account of noncompliance of the direction dated 24th March, 2020, why the matter be not sent to the certificate officer in terms of Section 8 of the said Act and also directing the company to pay a sum of Rs.2,83,256/-to the workman.

7. It is contended by and on behalf of the company that prior to receipt of the show cause notice the company was not at all aware with regard to the aforesaid direction issued by the controlling authority and as such immediately upon receipt of the said show cause, the company had responded to the same by communication in writing dated 2nd November, 2020.

8. Records would also reveal that such reply to the show cause, given by the company, was not accepted by the controlling authority as the certified copy of the order passed by the controlling authority had not appended with Form “U” in prescribed manner as envisaged under Rule 20 of the said Rules. It would also transpire from the record that on 4th November, 2020 the appellate authority had issued the certificate in terms of section 8 of the said Act, for recovery of the gratuity amount as determined by the controlling authority. Thereafter the company had filed a review application which was also dismissed by the controlling authority on the ground that the said matter had already been disposed of at the end of the controlling authority.

9. Subsequently the aforesaid writ application being WPA 4121 of 2021 was filed by the workman for execution of the aforesaid certificate. It would also appear from the records that a co-ordinate Bench of this Court by an order dated 24th February, 2021, had directed the company to deposit the entire amount of Rs. 2,83,256/-which had remained unpaid, with the learned Registrar General of this Court. Subsequently however, the co-ordinate Bench by an or