JUDGMENT

S.K. MISHRA, J. - In this writ petition, the petitioner, a retired employee of Mahanadi Coal Fields Ltd., has assailed the order dated 15.4.2011 passed by the Controlling authority under Payment of Gratuity Act, 1972 and Regional Labour Commissioner (Central), Rourkela, opposite party No.2, in Application No.36(3)/2010. As per the said order opposite party No.2 rejected the claim of the petitioner filed under Section 7(3) of the Payment of Gratuity Act, 1972 (for short "the Act" for brevity) on the ground that a disciplinary proceeding is still pending against the petitioner.

2. At the outset the question arose whether the writ petition is maintainable in view of the fact that the order impugned is an appealable one under Section 7(7) of the Act. Sub-section (7) of Section 7 of the Act provides that any person aggrieved by an order under Sub-section (4) may, within sixty days from the date of 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. There is also a provision for condonation of delay. Sub-section (3) of Section 7 of the Act provides that 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. Clause (a) of Sub-section (4) of Section 7 of the Act provides that 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. Clause (b) of the said Sub-section provides that 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. Thus, the order passed by opposite party No.2 is in exercise of Subsection (4) of Section 7 of the Act and, therefore, the same is appealable. The question, therefore, arise at the outset is whether in the event an alternative Forum is available, this writ petition should be entertained by the Court. In this regard, the Asst. Solicitor General has filed a notification issued by the Ministry of Labour and Employment on 4th January, 2006. The relevant portion is quoted below :

"8.0.362- In exercise of the powers conferred by Sub-Section (7) of Section 7 of the Payment of Gratuity Act, 1972 (39 of 1972) and in suppression of the Notification of the Government of India in the Ministry of Labour No.S.O.1252 dated 12th April 1999, the Central Government hereby specified the officers mentioned in the Column (2) of the Schedule specified hereunder to be Appellate Authority for the area/jurisdiction as specified in Column (3) of the said schedule in relation to all establishments for which the Central Government is the appropriate Government under Clause (a) of Section 2 of the said Act.

SCHEDULE

Sl. No. Officers Jurisdiction

1. Regional Labour Commissioner The State of Gujarat and

(Central) Ahmedabad. Union Territories of

Dadra, Nagar Haveli,

Daman and Diu

xxx xxx

5. Regional Labour Commissioner The State of Orissa

(Central) Bhubaneswar.

xxx xxx

Thus the appellate forum is available to assail an order passed by opposite party No.2.

3. The Supreme Court in Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others; AIR 2003 SUPREME COURT 2120 has held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion. In an appropriate case in spite of availability of alternative remedy the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the Fun