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2014 DIGILAW 998 (GUJ)

Vijay Kumar Kanhaiyalal Shah v. Chief Officer

2014-09-08

AKIL KURESHI, J.B.PARDIWALA

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JUDGMENT : AKIL KURESHI, J. 1. We have heard learned counsel Ms.Niyati Juthani for the appellant. Though served, no one appeared for the respondents. Appellant has challenged the judgment of the learned Single Judge dated 23.07.2012 in Special Civil Application No. 9011 of 2012. Brief facts are as under. 2. The appellant was appointed as the shop inspector by the respondent No. 1 on 05.06.1977. He retired on superannuation upon crossing the age of 58 years with effect from 31.10.2009. He has thus put in 32 years of service. According to him, his service was blemishless. 3. Since, the respondents were not releasing his retiral dues, the petitioner filed Special Civil Application No. 4464 of 2011. In such petition, the learned Single Judge passed following order: "4. I have considered submissions made by learned advocates for both sides. I have also considered information which has been given by respondent Nagarpalika dated 30th April, 2010 page 18 where Rs.1,17,878.00 is found to be due in favour of petitioner towards salary for period from November, 2005 to July, 2006, as per item no.1. As per item no.2, total Earned Leave are 136 (balance) and total amount payable to petitioner is Rs.60,565.00. As per item no.3, total amount payable to petitioner towards Provident Fund is Rs.8,19,358.00 with interest upto 31.3.2010 (double contribution) including contribution from employer as well as contribution from employee and as per item no.4, amount of gratuity payable to petitioner is Rs.2,13,760.00. 5. Out of total amount as found to be due as referred to above, some of amount has been paid by respondent no.1 Nagarpalika to petitioner and now only undisputed amount remaining to be recovered by petitioner from respondent no.1 comes to Rs.8,98,129.00. Therefore, learned advocate Mr. Meena appearing for petitioner has submitted that some suitable directions may be issued to respondent no.1 Nagarpalia so they may pay aforesaid remaining amount to petitioner as early as possible. 6. Learned Advocate Mr. Prajapati appearing for respondent no.1 has submitted that out of aforesaid total amounts of Rs.8,98,129.00 which are found due being undisputed amount between parties and not paid till date to petitioner, 25% amount is to be paid by respondent no.1 to petitioner on or before 7.7.2011 and thereafter, remaining amount is to be paid by respondent no.1 to petitioner by six equal installments within period of six months from 7.7.2011. This statement has been made by learned advocate Mr. Prajapati on behalf of respondent No.1, having instructions from respondent no.1. Therefore, it is directed to respondent no.1 Nagarpalika to pay 25% amount of total amount of Rs.8,98,129.00 to petitioner by way of an account payee cheque in his name on or before 7th July, 2011 and thereafter, rest of amount is to be paid by respondent no.1 to petitioner by six equal installments within period of six months by issuing account payee cheque in name of petitioner without fail. 7. In view of above observations and directions, this petition is disposed of by this court without expressing any opinion on merits. However, in case of any difficulty, if amount as per directions issued by this court is not paid by respondent no.1 to petitioner, then, it is open for petitioner to revive present petition by filing merely note in registry of this court." 4. Complaining of non compliance of the directions noted above, the petitioner filed a contempt petition being Misc. Civil Application No. 337 of 2012. This contempt petition was disposed of by an order dated 20.03.2012 in following terms: "1. In response to the notice issued by us, learned advocate Shri Mehul Rathod appeared for respondent No. 1. He stated on instructions that pursuant to the statement made before this Court, which was recorded in order dated 14.6.2011 in Special Civil Application No. 4464 of 2011, the respondent paid a sum of Rs.1,00,000/- cheque dated 25.1.2011, Rs.2,74,325 by cheque dated 14.3.2012 and remaining amount of Rs.15,090/- is being paid today under cheque dated 19.3.2012. 2. We notice that such further amounts released in favour of the applicant covers the entire amount of compensation of Rs.3,86,132/-, which even according to the advocate remained unpaid at the time of filing the contempt petition. 3. In view of above development and apology tendered by learned counsel for opponent No. 1 for not having made payment earlier, this contempt petition is disposed of. Notice discharged." 5. Since, the substantial amount of post retiral benefits was released belatedly, the petitioner filed above noted Special Civil Application No. 9011 of 2012 and claimed interest on delayed payments. Such petition came to be dismissed by the learned Single Judge by the impugned order dated 23.07.2012, holding that since alternative remedy is available, the petition was not entertained. Since, the substantial amount of post retiral benefits was released belatedly, the petitioner filed above noted Special Civil Application No. 9011 of 2012 and claimed interest on delayed payments. Such petition came to be dismissed by the learned Single Judge by the impugned order dated 23.07.2012, holding that since alternative remedy is available, the petition was not entertained. Against this order of the learned Single Judge, this Letters Patent Appeal is filed. 6. Having heard learned counsel for the appellant, it emerges an undisputed position that the appellant petitioner's postretiral dues were released belatedly. The respondents have at no stage of the proceedings brought anything on record to suggest that there was any blemish in the appellant's service career which would permit the employer to withhold such benefits. 7. We notice that Section 8 of the Payment of Gratuity Act, 1972 pertaining to recovery of gratuity recognizes that if amount of gratuity payable under the Act is not paid by the employer within the prescribed time, the Controlling Authority would issue a certificate for such amount to the Collector, who would recover the same together with compound interest at such rate as the Central Government by such notification may specify. Thus, the payment of gratuity beyond the prescribed period would have to be with interest at a rate that may be specified by the Central Government. When there is such a clear statutory provision and when the employer, an authority of the Government and otherwise covered within the definition of the State under Article 12 of the Constitution failed to discharge its statutory duty, even if alternative remedy was available, the prayer in the petition could have been granted. 8. In the facts of the case, instead of relegating the appellant to the alternative remedy, we direct the respondents to release the interest on the delayed payment of gratuity at a compound interest at 9% as specified by the Central Government under Section 8 of Payment of Gratuity Act, from the end of period specified for payment of such gratuity till such actual payment. This shall be done latest by 31.10.2014. 9. Appeal is allowed and disposed of in above terms. Appeal allowed.