# Mahendra Singh Kanwal v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-03
- **Case number:** Writ -A No. 11509 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-kanwal-v-state-of-u-p-ors-51038
- **Pages:** 7

## Headnote

A. Service Law - Gratuity - Alternate
remedy - Payment of Gratuity Act, 1972:
Section 2A.

Maintainability - The Hon'ble Supreme
Court has carved out certain exceptions
when a petition u/Article 226 of the
Constitution of India could be entertained
in spite of availability of an alternate
remedy. Some of the exceptions are:

(i) where the statutory authority has not acted
in accordance with the provisions of the
enactment in question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
(iii) it has resorted to invoke the provisions
which are repealed; and
(iv) when an order has been passed in total
violation of the principles of natural justice.
(Para 13)

None of the aforesaid exceptions are
attracted in the facts of the instant case
so as to entertain the instant petition.
(Para 14)

B. Perusal of Section 7 of the Act, 1972
would indicate that sub Section 4(a) of
Section 7 of the Act, 1972 categorically
provides that if there is any dispute as to
the amount of gratuity payable to an
employee under the Act, 1972 or as to the
admissibility of any claim etc., then the
employer or the employee or any other
person raising a dispute may give an
application to the controlling authority for
deciding the dispute. (Para 8)

In the instant case, the dispute is that although
the service rendered by the petitioner as daily
wager is covered under the provisions of Section
2A of the Act, 1972 yet the respondents have
not considered the said service while giving the
gratuity to the petitioner by treating his service
only for the period between 2014 to 2019 i.e.
the period of service rendered by the petitioner
after his regularization till his retirement. Thus,
it is apparent that there is a dispute as to the
amount of gratuity payable to the petitioner
which can validly be raised
before the
controlling authority under the provisions of the
Act, 1972. (Para 9)

Statutory remedy being available under the
provisions of Act, 1972 as such the writ petition
is disposed of leaving it open to the petitioner to
pursue the remedy as available to him under the
Act. (Para 15)
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition disposed of. (E-4)

Precedent followed:

## Text

12 All. Mahendra Singh Kanwal Vs. State of U.P. & Ors.
991
order would squarely be covered by
the provisions of Section 16G(5)(a) of the Act,
1921 and thus the petitioner has correctly been
placed under suspension in terms of the
aforesaid provisions.

31. The Court would like to add that it
has not expressed any opinion with regard to
provisions of Section 16G(5)(b) of the Act,
1921 that without issuance of a charge-sheet the
suspension order cannot be passed and the said
question is left open to be considered in an
appropriate case.

32. Keeping in view the aforesaid
discussion, no case for interference is made out.
Accordingly, the writ petition stands dismissed.
----------
(2024) 12 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ -A No. 11509 of 2024
With
Writ-A Nos. 11511 of 2024, 11526 of 2024 &
11538 of 2024

Mahendra Singh Kanwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Singh Kushwaha

Counsel for the Respondents:
C.S.C., Rajeeva Kumar Sinha

A. Service Law - Gratuity - Alternate
remedy - Payment of Gratuity Act, 1972:
Section 2A.

Maintainability - The Hon'ble Supreme
Court has carved out certain exceptions
when a petition u/Article 226 of the
Constitution of India could be entertained
in spite of availability of an alternate
remedy. Some of the exceptions are:

(i) where the statutory authority has not acted
in accordance with the provisions of the
enactment in question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
(iii) it has resorted to invoke the provisions
which are repealed; and
(iv) when an order has been passed in total
violation of the principles of natural justice.
(Para 13)

None of the aforesaid exceptions are
attracted in the facts of the instant case
so as to entertain the instant petition.
(Para 14)

B. Perusal of Section 7 of the Act, 1972
would indicate that sub Section 4(a) of
Section 7 of the Act, 1972 categorically
provides that if there is any dispute as to
the amount of gratuity payable to an
employee under the Act, 1972 or as to the
admissibility of any claim etc., then the
employer or the employee or any other
person raising a dispute may give an
application to the controlling authority for
deciding the dispute. (Para 8)

In the instant case, the dispute is that although
the service rendered by the petitioner as daily
wager is covered under the provisions of Section
2A of the Act, 1972 yet the respondents have
not considered the said service while giving the
gratuity to the petitioner by treating his service
only for the period between 2014 to 2019 i.e.
the period of service rendered by the petitioner
after his regularization till his retirement. Thus,
it is apparent that there is a dispute as to the
amount of gratuity payable to the petitioner
which can validly be raised
before the
controlling authority under the provisions of the
Act, 1972. (Para 9)

Statutory remedy being available under the
provisions of Act, 1972 as such the writ petition
is disposed of leaving it open to the petitioner to
pursue the remedy as available to him under the
Act. (Para 15)
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition disposed of. (E-4)

Precedent followed:

1. Netram Sahu vs State of Chhattisgarh & Anr.,
(2018) 3 SCR 682 (Para 6)

2. The Assistant Commissioner of State Tax &
Ors vs M/S Commercial Steel Limited, (2022) 16
SCC 447 (Para 11)

3. PHR Invent Educational Society v. UCO Bank,
(2024) 6 SCC 579 (Para 12)

Present petition challenges order dated
20.09.2024, whereby the claim of the
petitioner for gratuity on the basis of
entire length of service rendered as Daily
Wager has been rejected.

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioners, learned Standing Counsel for
the State-respondent and Shri Rajeeva
Kumar Sinha, learned counsel appearing
for respondents No.2 and 3.

2. Learned counsels for the parties
contend that the issue involved in all the
four writ petitions are same. As such, the
Court proceeds to hear all the writ petitions
together and they are being decided by way
of a common judgement. For convenience,
facts of WRIT - A No. - 11509 of 2024 are
being taken.

3. Under challenge is the order
dated 20.09.2024, a copy of which is
Annexure-1 to the petition, whereby the
claim of the petitioner for gratuity on the
basis of entire length of service rendered as
Daily Wager has been rejected.

4. Contention of the learned
counsel for the petitioner is that the
petitioner was appointed in the year 1984
as a Daily Wager and has been regularized
vide order dated 01.02.2014 and retired on
29.09.2019. Contention is that although the
respondents have paid the gratuity to the
petitioner but it is only the period of his
regular service which has been counted by
the respondents for payment of gratuity
while the period of his services rendered as
daily wager which has not been counted.

5. Despite the petitioner having
approached this Court earlier and the Court
having required the respondents to decide a
representation of the petitioner in this
regard said representation has been rejected
vide impugned order dated 20.09.2024 and
hence the instant petition.

6. Learned counsel has placed
reliance on the judgment of the Hon'ble
Supreme Court in the case Netram Sahu vs
State of Chhattisgarh & Anr : (2018) 3
SCR 682 to argue that the Hon'ble Supreme
Court has held that entire period of service
as rendered by the petitioner would fall
within the ambit of being 'continuous
service' as provided under Section 2A of
the Payment of Gratuity Act, 1972
(hereinafter referred to as 'the Act, 1972'),
consequently the respondents have patently
erred in not counting the entire period of
service rendered by the petitioner right
from the year 1984 till his regularization in
the year 2014.

7. On the other hand, Shri Rajeeva
Kumar Sinha, learned counsel appearing
for respondents No.2 and 3 has taken a
preliminary objection that the petitioner has
statutory remedy of approaching the
controlling authority under the provisions
of Section 7(4)(b) of the Act, 1972
inasmuch as considering Section 7(4)(a) of
the Act, 1972 as the petitioner is disputing
the amount of gratuity payable to him
under the Act, 1972 consequently he should
12 All. Mahendra Singh Kanwal Vs. State of U.P. & Ors.
993
approach the controlling authority in this
regard.

8. Perusal of Section 7 of the Act,
1972 would indicate that sub Section 4(a)
of Section 7 of the Act, 1972 categorically
provides that if there is any dispute as to
the amount of gratuity payable to an
employee under the Act, 1972 or as to the
admissibility of any claim etc., then the
employer or the employee or any other
person raising a dispute may give an
application to the controlling authority for
deciding the dispute.

9. In the instant case, the dispute is
that although the service rendered by the
petitioner as daily wager is covered under the
provisions of Section 2A of the Act, 1972 yet
the respondents have not considered the said
service while giving the gratuity to the
petitioner by treating his service only for the
period between 2014 to 2019 i.e. the period
of service rendered by the petitioner after his
regularization till his retirement. Thus, it is
apparent that there is a dispute as to the
amount of gratuity payable to the petitioner
which can validly be raised before the
controlling authority under the provisions of
the Act, 1972.

10. At this stage, learned counsel for
the petitioner contends that as it is clearly
apparent from perusal of Section 2A of the
Act, 1972 read with the judgment of the
Hon'ble Supreme Court in the case of Netram
(supra) that his entire period of service would
fall within the ambit of being continuous
service and consequently the period of
service from 1984 till 2014 would also be
counted towards is gratuity as such this Court
may entertain the instant petition.

11. Entertaining of a writ petition
despite availability of a statutory remedy is
no longer res integra. The Hon'ble Supreme
Court in the case of The Assistant
Commissioner of State Tax & Ors vs M/S
Commercial Steel Limited : (2022) 16
SCC 447 has held as under:-

"10. The respondent had a
statutory remedy under Section
107. Instead of availing of the
remedy, the respondent instituted a
petition under Article 226. The
existence of an alternative remedy
is not an absolute bar to the
maintainability of a writ petition
under
Article
226
of
the
Constitution. But a writ petition
can be entertained in exceptional
circumstances where there is:
(i) a breach of fundamental
rights;
(ii) a violation of the
principles of natural justice;
(iii)
an
excess
of
jurisdiction; or
(iv) a challenge to the vires
of
the
statute
or
delegated
legislation.
11. In the present case,
none of the above exceptions was
established. There was, in fact, no
violation of the principles of
natural justice since a notice was
served on the person in charge of
the conveyance. In this backdrop, it
was not appropriate for the High
Court to entertain a writ petition.
The assessment of facts would have
to be carried out by the appellate
authority. As a matter of fact, the
High Court has while doing this
exercise proceeded on the basis of
surmises. However, since we are
inclined to relegate the respondent
to the pursuit of the alternate
statutory remedy under Section
994 INDIAN LAW REPORTS ALLAHABAD SERIES
107,
this
Court
makes
no
observation on the merits of the
case of the respondent."

12. Likewise, recently the Hon'ble
Supreme Court in the case of PHR Invent
Educational Society v. UCO Bank, (2024)
6 SCC 579 has held as under:-

22. The law with regard to
entertaining
a
petition
under
Article 226 of the Constitution in
case of availability of alternative
remedy is well settled. In Satyawati
Tondon [United Bank of India v.
Satyawati Tondon, (2010) 8 SCC
110 : (2010) 3 SCC (Civ) 260 :
2010 INSC 428] , this Court
observed thus : (SCC p. 123, paras
43-45)
"43.
Unfortunately,
the
High Court [Satyawati Tondon v.
State of U.P., 2009 SCC OnLine All
2608] overlooked the settled law
that the High Court will ordinarily
not entertain a petition under
Article 226 of the Constitution if an
effective remedy is available to the
aggrieved person and that this rule
applies with greater rigour in
matters involving recovery of taxes,
cess, fees, other types of public
money and the dues of banks and
other financial institutions. In our
view,
while
dealing
with
the
petitions involving challenge to the
action taken for recovery of the
public dues, etc. the High Court
must keep in mind that the
legislations enacted by Parliament
and State Legislatures for recovery
of such dues are a code unto
themselves inasmuch as they not
only
contain
comprehensive
procedure for recovery of the dues
but also envisage constitution of
quasi-judicial bodies for redressal
of the grievance of any aggrieved
person. Therefore, in all such
cases, the High Court must insist
that before availing remedy under
Article 226 of the Constitution, a
person must exhaust the remedies
available
under
the
relevant
statute.
44. While expressing the
aforesaid view, we are conscious
that the powers conferred upon the
High Court under Article 226 of the
Constitution to issue to any person
or
authority,
including
in
appropriate
cases,
any
Government, directions, orders or
writs including the five prerogative
writs for the enforcement of any of
the rights conferred by Part III or
for any other purpose are very wide
and there is no express limitation
on exercise of that power but, at the
same time, we cannot be oblivious
of
the
rules
of
self-imposed
restraint evolved by this Court,
which every High Court is bound to
keep in view while exercising
power under Article 226 of the
Constitution.

45. It is true that the rule of
exhaustion of alternative remedy is
a rule of discretion and not one of
compulsion, but it is difficult to
fathom any reason why the High
Court should entertain a petition
filed under Article 226 of the
Constitution and pass interim order
ignoring the fact that the petitioner
can
avail
effective
alternative
remedy
by
filing
application,
appeal, revision, etc. and the
particular legislation contains a
12 All. Mahendra Singh Kanwal Vs. State of U.P. & Ors.
995
detailed mechanism for redressal of
his grievance."
23. It could thus be seen
that, this Court has clearly held
that the High Court will ordinarily
not entertain a petition under
Article 226 of the Constitution if an
effective remedy is available to the
aggrieved person. It has been held
that this rule applies with greater
rigour
in
matters
involving
recovery of taxes, cess, fees, other
types of public money and the dues
of banks and other financial
institutions. The Court clearly
observed that, while dealing with
the petitions involving challenge to
the action taken for recovery of the
public dues, etc. the High Court
must keep in mind that the
legislations enacted by Parliament
and State Legislatures for recovery
of such dues are a code unto
themselves inasmuch as they not
only
contain
comprehensive
procedure for recovery of the dues
but also envisage constitution of
quasi-judicial bodies for redressal
of the grievance of any aggrieved
person. It has been held that,
though the powers of the High
Court under Article 226 of the
Constitution
are
of
widest
amplitude, still the courts cannot be
oblivious of the rules of selfimposed restraint evolved by this
Court. The Court further held that
though the rule of exhaustion of
alternative remedy is a rule of
discretion
and
not
one
of
compulsion, still it is difficult to
fathom any reason why the High
Court should entertain a petition
filed under Article 226 of the
Constitution.
24. The view taken by this
Court
has
been
followed
in
Agarwal Tracom (P) Ltd. v. Punjab
National Bank [Agarwal Tracom
(P) Ltd. v. Punjab National Bank,
(2018) 1 SCC 626 : (2018) 1 SCC
(Civ) 425 : 2017 INSC 1146] .
25.
In
State
Bank
of
Travancore v. Mathew K.C. [State
Bank of Travancore v. Mathew
K.C., (2018) 3 SCC 85 : (2018) 2
SCC (Civ) 41 : 2018 INSC 71] ,
this Court was considering an
appeal against an interim order
passed by the High Court in a writ
petition under Article 226 of the
Constitution
staying
further
proceedings at the stage of Section
13(4) of the Sarfaesi Act. After
considering
various
judgments
rendered by this Court, the Court
observed thus : (SCC p. 94, para
16)
"16.
The
writ
petition
ought not to have been entertained
and the interim order granted for
the mere asking without assigning
special reasons, and that too
without even granting opportunity
to the appellant to contest the
maintainability of the writ petition
and failure to notice the subsequent
developments in the interregnum.
The opinion of the Division Bench
that the counter-affidavit having
subsequently
been
filed,
stay/modification could be sought
of the interim order cannot be
considered sufficient justification to
have declined interference."
26. The same position was
again reiterated by this Court in
Phoenix ARC (P) Ltd. v. Vishwa
Bharati Vidya Mandir [Phoenix
ARC (P) Ltd. v. Vishwa Bharati
996 INDIAN LAW REPORTS ALLAHABAD SERIES
Vidya Mandir, (2022) 5 SCC 345 :
(2022) 3 SCC (Civ) 153 : 2022
INSC 44] .
27. Again, in Varimadugu
Obi Reddy v. B. Sreenivasulu
[Varimadugu Obi Reddy v. B.
Sreenivasulu, (2023) 2 SCC 168 :
(2023) 1 SCC (Civ) 58 : 2022 INSC
1207] , after referring to earlier
judgments, this Court observed
thus : (SCC pp. 181-82, para 34)
"34. The order of the
Tribunal dated 1-8-2019 was an
appealable order under Section 18
of the Sarfaesi Act, 2002 and in the
ordinary course of business, the
borrowers/person aggrieved was
supposed to avail the statutory
remedy of appeal which the law
provides under Section 18 of the
Sarfaesi Act, 2002. In the absence
of efficacious alternative remedy
being
availed,
there
was
no
reasonable justification tendered by
the
respondent
borrowers
in
approaching the High Court and
filing writ application assailing
order of the Tribunal dated 1-82019 under its jurisdiction under
Article 226 of the Constitution
without exhausting the statutory
right of appeal available at its
command."
28. It could thus be seen
that
this
Court
has
strongly
deprecated
the
practice
of
entertaining writ petitions in such
matters.
...........
30. It can thus be seen that
it is more than a settled legal
position of law that in such matters,
the High Court should not entertain
a petition under Article 226 of the
Constitution particularly when an
alternative statutory remedy is
available.
.........
37. It could thus clearly be
seen that the Court has carved out
certain exceptions when a petition
under
Article
226
of
the
Constitution could be entertained
in spite of availability of an
alternative remedy. Some of them
are thus:
(i) where the statutory
authority
has
not
acted
in
accordance with the provisions of
the enactment in question;
(ii) it has acted in defiance
of the fundamental principles of
judicial procedure;
(iii) it has resorted to
invoke the provisions which are
repealed; and
(iv) when an order has
been passed in total violation of the
principles of natural justice.
38. It has however been
clarified that the High Court will
not entertain a petition under
Article 226 of the Constitution if an
effective
alternative
remedy
is
available to the aggrieved person
or the statute under which the
action complained of has been
taken itself contains a mechanism
for redressal of grievance."

13. From perusal of the judgments
of the Hon'ble Supreme Court in the cases
of The Assistant Commissioner of State
Tax (supra) and PHR Invent Educational
Society (supra), it clearly emerges that the
Hon'ble Supreme Court has carved out
certain exceptions when a petition under
Article 226 of the Constitution of India
could be entertained inspite of availability
of an alternate remedy. Some of the
12 All. Afaq Vs. State of U.P.
997
exceptions are: (i) where the
statutory authority has not acted in
accordance with the provisions of the
enactment in question; (ii) it has acted in
defiance of the fundamental principles of
judicial procedure; (iii) it has resorted to
invoke the provisions which are repealed;
and (iv) when an order has been passed in
total violation of the principles of natural
justice.

14. When the facts of the instant
case along with the arguments of the learned
counsel for the petitioner are seen in the
context of the law laid down by the Hon'ble
Supreme Court, it clearly emerges that none
of the aforesaid exceptions are attracted in the
facts of the instant case so as to entertain the
instant petition.

15. Considering the aforesaid i.e.
statutory remedy being available under the
provisions of Act, 1972 as such the writ
petition is disposed of leaving it open to the
petitioner to pursue the remedy as available
to him under the Act, 1972. As the petitioner
is a retired employee, it is provided that in
case an application is filed by the petitioner
under the Act, 1972, the same would be
considered and decided in accordance with
law and the provisions of the Act, 1972,
which
the
authority would make
an
endeavour to decide within a period of 3
months from the date the application is filed
along with a certified copy of this order.
----------
(2024) 12 ILRA 997
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.
Criminal Appeal No. 647 of 1985

Afaq ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
J.S. Sengae, Jai Prakash Singh, M. Islam,
Mohd. Irteqa, Sudhir Mehrotra

Counsel for the Respondent:
Dga, Pradeep Kumar, R.B. Sahai, Sanjay
Srivastava

A. Criminal Law - Unreliable witness - It
is a sound and well- established rule of
law that the court is concerned with the
quality and not with the quantity of the
evidence
necessary
for
proving
or
disproving a fact. (Para 18)

Evidence
can
be
divided
into
three
categories broadly, namely, (i) wholly
reliable, (ii) wholly unreliable, and (iii)
neither
wholly
reliable
nor
wholly
unreliable. If evidence, along with matters
surrounding it, makes the court believe it
is wholly reliable qua an issue, it can
decide its existence on a degree of
probability. Similar is the case where
evidence is not believable. When evidence
produced is neither wholly reliable nor
wholly
unreliable,
it
might
require
corroboration, and in such a case, court
can also take note of the contradictions
available in other matters. (Para 19)

The evidence of a chance witness requires
a very cautious and close scrutiny and a
chance witness must adequately explain
his presence at the place of occurrence.
Deposition of a chance witness whose
presence at the place of incident remains
doubtful should be discarded. (Para 16)

In the present case, if an incident of the kind
which had been reported in the FIR had taken
place and six persons were just onlookers then
it becomes hard to believe that the incident was
actually seen by six young able bodied persons.
They had for reasons only known to them
refrained from intervening in the scuffle which