JUDGMENT :- The petitioners before this Court are officers of Western Coal Fields Limited, a Company incorporated under the Indian Companies Act, 1956. They challenges the order dated 28.9.2004, passed by the Regional Labour Commissioner, Nagpur and Appellate Authority under the Payment of Gratuity Act, 1972, rejecting their appeal and further revising the order of Controlling Authority to their prejudice. 2. The present respondent no.2, a Medical Officer, working as Deputy Chief Medical Officer with petitioners approached the Controlling Authority under the Gratuity Act and claimed that she has not been paid her full gratuity. For the purpose of present matter, it is not necessary to go into the length of service or other aspects because those details are not in dispute. The complication has arisen only because of the date of termination of her services. The respondent no.2 claimed that she worked up to 30th September. 1997 and employer therefore could not have calculated her gratuity for service only upto 18.9.1997. It is to be noted that on 18.9.1997, ceiling on maximum amount of gratuity payable under the Act was Rs.1,00,000/- and by amendment which came into force on 24.9.1997, it was raised to Rs.3,50,000/-. Respondent no.2 contended that she has worked upto 30th September, 1997 and she has also been paid salary accordingly. The present petitioners filed their reply before the Controlling Authority and It contended that respondent no.2 worked only upto 18.9.1997 and she was wrongly or in adversity paid in excess i.e. upto 30th September, 2007. They pointed out from their calculations that amount of salary paid in excess to respondent no.2 for period from 19.9.997 to 30.9.1997 was also recovered from her gratuity dues when the same were paid to her. The Controlling Authority did not accept this story and it also did not accept the deduction of the amount of Rs.32,000/- on account of illegal occupation charges of quarter from her gratuity amount. The authority, therefore, vide its order dated 10th November, 2008, found respondent no.2 entitled to more amount of gratuity. This order determined the amount of Rs.2,82,000/as due and payable and also directed the interest at 10% upon it. It was challenged before the Appellate Authority (respondent No.1) by petitioners by filing appeal under Section 7(7) of Gratuity Act. The authority, therefore, vide its order dated 10th November, 2008, found respondent no.2 entitled to more amount of gratuity. This order determined the amount of Rs.2,82,000/as due and payable and also directed the interest at 10% upon it. It was challenged before the Appellate Authority (respondent No.1) by petitioners by filing appeal under Section 7(7) of Gratuity Act. The petitioners contended that period of service upto 18.9.1997 was never disputed by respondent no.2 and she also did not dispute the deduction of amount of Rs.32,000/- on account of occupation charges of the quarter. They contended that service till 30th September, 1997, therefore, ought not to have been accepted by the Controlling Authority. They also produced communication issued to them by Respondent no.2 on 19.8.1998 while vacating the quarter in her possession. According to them, respondent no.2 was, therefore, estopped from filing any proceedings before the Controlling Authority and in any case if there was any rights in her favour if she expressly waived those rights. The Appellate Authority by order dated 28.9.2004 did not accept this contention and while accepting the findings recorded by Controlling Authority it found that the respondent no.2 was in fact terminated on 18.4.1998 i.e. the date on which communication accepting her resignation from 18.9.1997 was issued. It, therefore, found her entitled to claim gratuity upto 18.4.1998 and granted her that benefit. It is thereafter that the petitioners approached this Court in present writ petition. 3. On 11th August, 2005, this Court while issuing Rule in the matter, noted that petitioners had already deposited an amount of Rs.4,7 1.802/- before the Controlling Authority vide Cheque dated 23rd July, 2004. The Court also noticed that as per appellate order, respondent no.1 was to refund amount of Rs.14,179/- to the petitioner. Thus, after deducting that amount from the amount deposited, amount of Rs.4,57,623/- has been allowed to be withdrawn by the present respondent no.2 on her furnishing an undertaking that she would be accepting the aforesaid amount subject to result of petition and if the petitioners succeed. she would not claim any equity. Accordingly, after furnishing the undertaking, the respondent no.2 has withdrawn the amount of Rs.4.57 .623/-. 4. Advocate Mehadia for petitioners has contended that respondent no.2 accepted her service upto 18.9.1997 only and he heavily relied upon the communication dated 19th August, 2008 sent by her to petitioners for that purpose. she would not claim any equity. Accordingly, after furnishing the undertaking, the respondent no.2 has withdrawn the amount of Rs.4.57 .623/-. 4. Advocate Mehadia for petitioners has contended that respondent no.2 accepted her service upto 18.9.1997 only and he heavily relied upon the communication dated 19th August, 2008 sent by her to petitioners for that purpose. He further states that the story that she worked upto 30th September. 1997 has been evolved subsequently as the provisions of Gratuity Act underwent substantial change and further after noticing the excess payment made to her inadvertantly by the petitioners. According to him, the amended provisions which came into force on 24.9.1997, did not apply to the case of Respondent no.2 as she seized to be in employment from 18.9.1997 itself. He further argued that as respondent no.2 tendered her resignation and she informed that it was to come into effect on 18.9.1997. her subsequent stay after permissible period in Government Quarter was illegal and there was no occasion for her to continue in possession of said quarter till 19th August. 1998. The amount of penal rent. therefore, has been rightly recovered from her gratuity amount and he contends that respondent no.2 did not challenge this deduction of amount of Rs.32,000/- in her application filed under Section 7 before the Controlling Authority. He points out that the' calculations of gratuity as done by the office of the petitioners to show that amount of Rs.6.673/ - has been recovered back on account of excess payment of salary and amount of Rs.32.545/has been deducted on account of penal rent. He states that accordingly the cheque for balance amount was handed over to the respondent no.2, which she accepted without any protest. He, therefore, states that the impugned orders passed by Controlling Authority as also Appellate Authority need to be quashed and setaside. 5. He also argues that the validity of acceptance of resignation vide communication dated 18.4.1998 was never in dispute either before the Controlling Authority or before the Appellate Authority. He states that such dispute could not have been raised before the said authority and therefore was never raised. According to him, the Appellate Authority of its own has found respondent no.2 entitled to gratuity for period from 1.11.1997 to 18.4.1998. He states that such dispute could not have been raised before the said authority and therefore was never raised. According to him, the Appellate Authority of its own has found respondent no.2 entitled to gratuity for period from 1.11.1997 to 18.4.1998. He pointed out that as acceptance of resignation was never challenged, the authorities could not have examined whether the acceptance of resignation on 18.4.1998 was valid or otherwise and entitlement of respondent no.2 to claim gratuity only upto 18.9.1997 could have been legally gone into in present matter. 6. He contends that the proceedings under Section 7 were filed after huge delay and as there was no application or prayer for condonation of delay, the Controlling Authority could not have taken cognizance. He states that this ground is raised in appeal, but the Appellate Authority has not considered it as per law. 7. Advocate Shti. Pashine on behalf of respondent no.2 states that as the resignation itself was accepted on 18.4.1998, the respondent no.2 was required to stay in Government Quarter only. He argues that in case of refusal to accept resignation, the respondent no.2 would have continued in service and as such her occupation in Government Quarter was not illegal and deduction on that account as effected is without any merit. He further states that being welfare jurisdiction, the Controlling Authority rightly found that deduction was contrary to law and therefore, has set it aside. He argues that in such jurisdiction, particularly when claim is for payment of gratuity and the law itself does not permit any deduction from it, the Controlling Authority was within its jurisdiction in recording a finding that deduction of penal rent was illegal. He further states that on same grounds when the Appellate Authority found that resignation has been accepted retrospectively, it has rightly interfered in the matter and has given the dues to the respondent no.2-employee. He argues that the technical objections, like pleadings etc., cannot be used to defeat the substantive right of respondent no.2. According to him, respondent no.2 worked upto 30th September, 1997, and has been paid her salary accordingly. He insists that no amount has been deducted on account of alleged excess payment of salary from 18.9.1997 to 30th September, 1997. He points out that though resignation has been accepted on 18.9.1997, as respondent no.2 worked upto 30th September. According to him, respondent no.2 worked upto 30th September, 1997, and has been paid her salary accordingly. He insists that no amount has been deducted on account of alleged excess payment of salary from 18.9.1997 to 30th September, 1997. He points out that though resignation has been accepted on 18.9.1997, as respondent no.2 worked upto 30th September. 1997, and the provisions of amended Gratuity Act came into force on 24.9.1997, the respondent no.2 has rightly given the benefit of said amended provision. The learned counsel contends that in such circumstances, no case for interference in writ jurisdiction is made out. He also points out that a separate application for dismissal of proceedings as time barred was filed by the present petitioners before the Controlling Authority and the Controlling Authority dismissed that application by reasoned order on 10th November, 2003. He argues that said order has become final and therefore, issue of limitation is not open for consideration at this stage. Lastly it is urged that the present respondent no.2 has on 17.11.2008 only filed writ petition before the Hon'ble Division Bench of this Court challenging the retrospective acceptance of resignation and for quashing & setting aside the communication dated 18.4.1998. He states that consideration of present petition needs to be postponed till the Hon'ble Division Bench decides writ petition filed before it. 8. Mrs. Joshi supports the impugned order and states that the amount of gratuity is statutorily decided and being statutory dues, the authorities have rightly exercised their powers in furtherance of the spirit of the Gratuity Act and for its proper execution and implementation. She contends that the absence of plea in that respect cannot come in the way of statutory authorities implementing such welfare provisions and as the legislation is a beneficial legislation, the delay was rightly condoned and this Court while sitting in writ jurisdiction should not examine the correctness or otherwise thereof. She also argues that whether the termination was brought about correctly or not, was not the question raised before the authorities, but the authority itself has found that respondent no. 2 was in employment till 18.4.1998 and therefore, has given her due benefits up to that date. She, therefore, prays for dismissal of the writ petition. 9. From the arguments advanced above, it is apparent that the resignation tendered by respondent no.2 initially was w.e.f. 18.09.1997. 2 was in employment till 18.4.1998 and therefore, has given her due benefits up to that date. She, therefore, prays for dismissal of the writ petition. 9. From the arguments advanced above, it is apparent that the resignation tendered by respondent no.2 initially was w.e.f. 18.09.1997. The said resignation is dated 08.05.1997 and notice period expired on 07.08.1997. However, respondent no.2 continued to attend her duties thereafter till 18.09.1997 and she has been paid salary also accordingly by the petitioners upto 18.09.1997. According to respondent no.2 she has received salary upto 30.09.1997 and though the petitioners contend that salary for the period from 18.09.1997 till 30.09.1997 has been recovered back from her, while releasing gratuity in her favour, respondent no.2 is not accepting that recovery. The said question is not very relevant for present adjudication. According to petitioners themselves on 20.08.1997 respondent no.2 submitted another letter requesting that her resignation should be accepted from 8.12.1997. It is to be noted that this letter was given after the expiry of notice period, but before 18.09.1997 when respondent no.2 was still continuing & performing her duties. It is in this background. that the said resignation of respondent no.2 dated 08.05.1997 has been accepted by the petitioners on 18.04.1998 w.e.f. 18.09.1997. Respondent no.2 never challenged the correctness or otherwise of this action of petitioners before competent forum. In the present Writ Petition the question whether the Controlling Authority under Payment of Gratuity Act, or the Competent Authority under that Act could not have ignored and order dated 18.04.1998 also cropped up, but then Advocate Shri. Pashine, for respondent no.2 has stated that respondent no.2 has already filed a Writ Petition questioning the order dt.l8.04.1998. accepting the resignation retrospectively vide stamp no. 17360/2008, dated 24.11.2008. It is obvious that the validity or otherwise of the said action of petitioners therefore will have to be gone into in that writ petition, if that writ petition is entertained by this Court. In view of the separate challenge to that action, it is not necessary for this court to consider the scope of jurisdiction to be exercised by the controlling authority under Section 7 of the Payment of Gratuity Act. But it is clear that the authority has to work out the entitlement to gratuity for the period during which the respondent no.2 is continued in service. But it is clear that the authority has to work out the entitlement to gratuity for the period during which the respondent no.2 is continued in service. If there is any order of termination by which the relationship is brought to an end, the validity of the said order of termination will be required to be challenged before appropriate and competent forum. The provisions of Payment of Gratuity Act does not permit the controlling authority to declare the order of termination to be illegal or non-est & to treat the employee as continued in service. It is therefore, clear that the validity or otherwise of the order dt.l8.04.1998 accepting the resignation of the present respondent no.2 w.e.f. 18.09.1997 could not have been gone into by the controlling authority or then by the Appellate Authority. 10. In fact in present matter the controlling authority has not gone into that aspect at all. The controlling authority found that though resignation was accepted on 18.09.1997, respondent no.2 in fact has continued in employment upto 30.09.1997 and she was also paid salary therefor. In view of this position, the controlling authority further noticed that the ceiling on maximum amount of gratuity at Rs.1 lakh was enhanced to Rs.3,50,000/- on 24.09.1997 and hence respondent no.2 was entitled to benefit of maximum amount also and the controlling authority has given that benefit to the respondent no.2. Thus the controlling authority has treated respondent no.2 to be in service upto 30.09.1997. It is the Appellate Authority who has found that the resignation has been accepted on 18.04.1998 retrospectively. The Appellate Authority therefore found that respondent no.2 must be deemed to have continued in service upto 18.04.1998, and has accordingly sanctioned additional gratuity while dismissing the appeal preferred before it by the present petitioners. Respondent no.2 had filed a counter appeal before the Appellate Authority contending that she was entitled to gratuity upto 18.04.1998. The said counter appeal therefore clearly raises a question whether the acceptance of resignation retrospectively was valid or invalid. The said issue therefore could not have been gone into by the appellate authority and it ought to have directed respondent no.2 to approach appropriate forum for ventilation of this grievance. The Appellate Authority i.e. respondent no.1 could not have usurped to itself this jurisdiction. The said issue therefore could not have been gone into by the appellate authority and it ought to have directed respondent no.2 to approach appropriate forum for ventilation of this grievance. The Appellate Authority i.e. respondent no.1 could not have usurped to itself this jurisdiction. I therefore, find that grant of gratuity to present respondent no.2 for period from 30.09.97 by the Appellate Authority is unsustainable. 11. The learned counsel for petitioners has pointed out that the deduction of Rs.32,545/ - on account of penal rent for quarter of respondent no.2 could not have been quashed and set aside or could not have been ignored by the controlling authority. He has urged that there was no such contention raised by respondent no.2 before that Authority. However, I find that provisions of Payment of Gratuity Act itself are very clear and no deduction is permissible on that account from the amount of gratuity receivable by respondent no.2. Moreover, in present facts, when resignation of respondent no.2 was itself not accepted till 18.04.1998, respondent no.2 could not be said to be out of employment till that date. Here the petitioners have accepted the resignation on 18.04.1998. but in case the employer rejects such resignation, it is apparent that the employee would be required to continue in service. No action on resignation letter dated 8.5.1997 was taken till 18.9.1997 and fate of request dated 20.8.1997 made by respondent no.2 is not disclosed by petitioners. The occupation of quarter therefore for such period could not have been treated as wrongful occupation and penal rent therefor could not have been charged. I therefore, find no merit in the contention of the petitioners. that amount of Rs.32545/- could not have been deducted from the gratuity amount of respondent no.2. Though there was no express challenge in this respect, in welfare jurisdiction when it came to notice of the controlling authority, the controlling authority has rightly taken cognizance of this injustice and has rightly ventilated it for the present respondent no.2. 12. The question whether respondent no.2 is entitled to benefit of amendment to Gratuity Act, which came into force w.e.f. 24.09.1997 turns upon the question whether petitioners continues in service after 18.09.1997. 12. The question whether respondent no.2 is entitled to benefit of amendment to Gratuity Act, which came into force w.e.f. 24.09.1997 turns upon the question whether petitioners continues in service after 18.09.1997. The said challenge as already stated above is pending in Writ Petition filed before the Division Bench by the respondent no.2: The ancillary questions, whether respondent no.2 in fact worked upto 30.09.1997 and was therefore, rightly paid her salary upto 30.09.1997 and what is the effect of with drawl or recovery of that excess salary or that whether there is no recovery of alleged excess salary at all, are all therefore germane only in that writ petition. The effect of request dated 20.08.1997 to accept her resignation from 8.12.1997 is also an issue pertaining to that writ petition also. If the Court finds that the present respondent no.2 in fact continued to work upto 30.09.1997, the consequences automatically follow. It will therefore not be appropriate for this court to go into that controversy at this stage. This Court has to presume that the services of respondent no.2 came to end on 18.09.1997 as per communication dated 18.04.1998. 13. It is therefore. clear that the respondent no.2 has received payment of excess gratuity i.e. more than her entitlement. The respondent no.2 therefore. is required to refund that amount to petitioners as per orders of this Court dated 11.08.2005. 14. In the circumstances, the petition succeeds partly. Respondent no.2 is found entitled to total gratuity amount of Rs.l, lakh without deducting amount of Rs.32,545/- on account of penal rent. Respondent no.2 had already received amount ofRs.68,854/- out of this Rs.1 lakh. Thus adjusting the further amount of Rs.32,545/- from amount which respondent no.2 has withdrawn as gratuity amount, respondent no.2 to refund the balance amount to the present petitioners by 31.12.2008. Thus Writ Petition is partly allowed. However, in the circumstances, of the case there shall be no order as to costs. Petition partly allowed.