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Gujarat High Court · body

2016 DIGILAW 1481 (GUJ)

Kalyani Roshanali Abdulla v. State of Gujarat

2016-07-25

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Chauhan, learned advocate for the petitioner and Mr. Mankad, learned advocate for the respondent and Ms. Megha Chitaliya, learned AGP. 2. In present petition the petitioner has prayed, inter alia, that:- "24(A) YOUR LORDSHIPS may be pleased to direct the respondents to release the principal amount of gratuity to the tune of Rs. 1,38,979/- and interest at the rate of 18% from due date till its actual realization and 18% interest on the delayed payment of the principal amount being 1,86,615/- for 1 year and 2 1/2 months, which as due and payable on 1.8.2007." 3. So far as relevant facts are concerned, the petitioner has averred and stated that:- "2. The petitioner by way of this petition under Article 226 of the Constitution of India, begs to challenge the inaction on the part of the respondents in not releasing the due payment towards remaining gratuity and interest accrued thereon which was due and payable to the petitioner on 1.8.2007 to the tune of Rs. 2,94,217/- out of said amount part payment of Rs. 1,80,615/- was made on 16.10.2008, interest accrued on the delayed payment of the amount of Rs. 1,80,615 till 30.9.2008 is Rs. 44,180/- which is unpaid till date and amount of Rs. 1,38,979/- towards principle amount and interest calculated on Rs. 1,38,979/- is Rs. 91,740/- till 30.4.2010 also stands unpaid till date, therefore total amount which is unpaid till 30.4.2010 is Rs. 2,74,899/-, however petitioner reserves his right to claim interest on unpaid amount till its actual realization......... 3. Petitioner says that he has joined the services of the respondent Nagarpalika on 8.8.1980, he had taken retirement from the post of Head Clerk after completing 27 years of continuous service. He is retired on 31.7.2007 after the completion of office hours with protection of all the benefits available on superannuation to the employee, same was accepted by respondent in their executive committee meeting and passed the resolution number 67 on 25.5.2007 pursuant to which on 17.7.2007 by passing appropriate orders protecting all the benefits available to petitioner he was retired on completion of 27 years of services and was superannuated. 4. Petitioner says that on 1.8.2007 it was requested to the respondent authorities to release the amount of gratuity as per the calculation supplied... 5. 4. Petitioner says that on 1.8.2007 it was requested to the respondent authorities to release the amount of gratuity as per the calculation supplied... 5. Petitioner says that he had applied in prescribed form for recovering his gratuity on 1.8.2007. 6. Petitioner says that on 3.10.2007 petitioner has given a notice to the respondent in prescribed form as required under the act i.e. Form No. 'N' demanding the amount of gratuity to the tune of Rs. 2,94,217=00 but till date, the respondent has neither replied nor they have released the full payment towards gratuity. 7. Petitioner says that on 5.10.2007 respondent Nagarpalika has replied to the application made by the petitioner in which at item No. 4 it is stated that appropriate direction have been given to the concerned clerk.... 8. Petitioner says that he has preferred petition being SCA/28273/07 with the prayer made therein to direct the respondents to release the amount of gratuity and provident fund at the earliest. 9. Petitioner says that he had also requested the authority on numerous occasion, including on 20.6.2008 to release the amount of gratuity to the tune of Rs. 2,94,217=00 but the authority has not released the full amount of the gratuity..... 10. Petitioner says that during the pendency of the above referred petition, respondent Nagarpalika has released the amount of 1,80,615/- towards the part payment of the gratuity amount on 16.10.2008 vide cheque No. 446051. 11. Petitioner says that above referred special civil application was disposed of on 6.2.2009 in which liberty was granted and certain direction were issued... 12. Petitioner says that pursuant to the order passed in the SCA/28273/07 representation was made on 22/24.2.2009 along with relevant documents..... 13. Petitioner says that along with the copy of the above representation petitioner have given detail reply along with the copy of the relevant documents containing accounts which are alleged to have not been explained qua expenditure incurred during the election of 2005... 14. Petitioner says that while granting the approval to retire from the services of the respondent authority petitioner was requested to explain the accounts, at that point of time petitioner has supplied the documents along with the details of the accounts.... 15. 14. Petitioner says that while granting the approval to retire from the services of the respondent authority petitioner was requested to explain the accounts, at that point of time petitioner has supplied the documents along with the details of the accounts.... 15. Petitioner says that pursuant to his representation reply was given by the respondent Nagarpalika vide reply dated 18.4.2009 in which 4 items are mention for which petitioner was asked to supply the details of accounts which were obtained/given to the petitioner to meet with and incur necessary expenditure to compete the official work of the respondent Nagarpalika... 16. Petitioner says that in response to the said reply of the respondent Nagarpalika petitioner has made various claims including interest on delayed payment of the amount due including explanation to the account as mentioned in the letter dated 13.5.2009." 4. To oppose the petition the respondent has filed affidavit wherein it has stated, inter alia, that:- "4. I say that, under the provision of Section-7(4)(b) of The payments of Gratuity Act, "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." Section-7(4)(c) provides that "The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount...." Section-7(7) provides that "Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the 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." 5. Now, adverting to the facts of the present case, in view of the above provisions of the payment of Gratuity Act, I say that, the Petitioner had earlier filed Sp. C.A. No. 28273 of 2007 for the payment under different heads, including the amount of gratuity. That, during the pendency of this petition, the municipality had already paid the undisputed amount of Rs. 1,80,615/- towards gratuity which is annexed on page-27 of the petition. C.A. No. 28273 of 2007 for the payment under different heads, including the amount of gratuity. That, during the pendency of this petition, the municipality had already paid the undisputed amount of Rs. 1,80,615/- towards gratuity which is annexed on page-27 of the petition. I say that, this Court had passed an interim order on 8/5/2008 in the said petition and directed the Petitioner to approach concerned authority for release of undisputed amount. This order is at page - 26 of the petition. Inspite of this order, the Petitioner did not approach the concerned "authority" which is a controlling authority under the act for deciding the dispute. 6. I say that, thereafter, this S.C.A. 28273 of 2007 came to be disposed of finally by an order dated 6/2/2009, the copy of which is at page-30 of the petition. In this final order, in para-1, it has been specifically observed that "it is not in dispute that inclusive of todays payment, the undisputed amount payable to the Petitioner by way of gratuity and provident fund etc, is already paid." Further in para-4, the Petitioner was directed to make representation to the municipality and the municipality was directed to take decision thereon within four weeks thereafter. In view of this order at page-30 of this petition, the Petitioner made representation on 22/2/2009 to the municipality and the same was decided and replied by the municipality on 18/4/2009 at page-64 of this petition. It is pertinent here to note that in the aforesaid order it has been further held that if any adverse order is passed, it will be open for the Petitioner to challenge the same before appropriate forum. Meaning thereby, this Honourable Court had earlier also directed to approach the "appropriate forum" and not the High Court. I say that, "appropriate forum" would mean the controlling authority under the act. Therefore, the Petitioner was required to approach the controlling authority first, for deciding his dispute u/s. 7(4)(b) of the act, and he can not directly file application before this Honourable High Court. 7. I say that, "appropriate forum" would mean the controlling authority under the act. Therefore, the Petitioner was required to approach the controlling authority first, for deciding his dispute u/s. 7(4)(b) of the act, and he can not directly file application before this Honourable High Court. 7. In view of the facts, earlier directions of this Court and the statutory provisions, it is crystal clear that before approaching the high Court, the Petitioner is required to file an application before the controlling authority for deciding the dispute of payment of gratuity and if aggrieved, he has to prefer an appeal before the appellate authority under the act. Thus, only after exhausting these statutory remedies, the Petitioner is entitled to file the petition before this Court and not before that. Thus, this petition is premature and therefore, it can not be entertained by this Honourable Court. Therefore, this petition is misconceived also. Therefore, on this ground, this petition is required to be dismissed in limine." 5. The Assistant Director of Municipality has also filed affidavit wherein he has stated, inter alia, that:- "5. I say and submit that petitioner challenges the inaction on the part of the respondent and not realizing the due payment towards remaining gratuity and interest accrued which was due and payable to the petitioner on 01.08.2007 the tune of Rs. 2,94,217/- out of said amount part payment of Rs. 1,80,615/- was made on 16.10.2008 interest accrued on the delayed payment of amount of Rs. 1,80,615/- till 20.09.2008 towards principal amount and interest calculated on Rs. 1,38,979/- is Rs. 91,740/- till 30.04.2010 also stands unpaid till date therefore total amount which is unpaid till 30.04.2010 is Rs. 2,74,899/-. 6. I say and submit that by resolution of Anjar Municipality dated 25.07.2007 Resolution No. petitioner retired on 31.07.2007. Immediately the Chief Officer by office order No. 1794 dated 17.07.2007 informed the petitioner that petitioner had taken an advance of Rs. 94,449/- from municipality Fund. Further he had directed the petitioner to give full account of the advance taken by him and to give his charge to Shri. Yakatbhai Bayard. But petitioner has not obeyed any of the condition of the Chief Officer, further he has not given any account of the advance of Rs. 94,449/-. 7. I say and submit that petitioner after retirement has submitted a bill of Rs. 2,67,331/- to the Anjar Nagarpalika as gratuity amount. But petitioner has not obeyed any of the condition of the Chief Officer, further he has not given any account of the advance of Rs. 94,449/-. 7. I say and submit that petitioner after retirement has submitted a bill of Rs. 2,67,331/- to the Anjar Nagarpalika as gratuity amount. An amount Rs. 1,80,815/- has been deposited in the Hon'ble Gujarat High Court where as Rs. 1,38,979/- is kept deposited till the petitioner gives full account of the advance of Rs. 94,449/- taken by him, for this petitioner has not contacted the Municipality as this is a disputed amount and this is important issue so leaving the disputed amount rest pension benefit are given to him." 6. During pendency of the petition this Court (Coram:- Hon'ble Mr. Justice K.S. Jhaveri) passed order dated 4.12.2012 in Civil Application No. 11989 of 2012 which reads thus:- "1.0 By way present application, the applicant has prayed for direction to the Registry to make payment of amount deposited by respondent Nagarpalika with the Registry of this Hon'ble Court in Special Civil Application to present applicant by account payee cheque and/or by way of electronic transfer in the account of present applicant to serve the purpose of justice. 2.0 Heard. On the facts and circumstances of the case, the amount of Rs. 2,13,971/- which has been deposited by the respondent-Nagarpalika shall be invested by the Registry of this Court by way of a fixed deposit with a nationalised bank initially for a period of three years, and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the petition. The interest accruing on the said deposit shall be paid quarterly to the applicant. Civil application stands disposed of accordingly. 3.0 Special Civil Application No. 6066 of 2010 to be listed for hearing on 11.01.2013." 7. According to Mr. Mankad, learned advocate for the respondent No. 3, Nagar Palika the amount which is mentioned in the order dated 4.12.2012 is deposited by the Nagar Palika. 8. During hearing of this petition learned advocate for the petitioner relied on the statement/calculation placed on record by the petitioner (at annexure-A page 14). The said statement reads thus:- Sr. Amount in Rs. Particular 1. 2,94,217=00 The amount is required to be paid to me towards gratuity. The said amount is not paid fully till date. 2. 8. During hearing of this petition learned advocate for the petitioner relied on the statement/calculation placed on record by the petitioner (at annexure-A page 14). The said statement reads thus:- Sr. Amount in Rs. Particular 1. 2,94,217=00 The amount is required to be paid to me towards gratuity. The said amount is not paid fully till date. 2. 1,80.615=00 Vide cheque no.446051 an amount of Rs.1,80.615=00 towards the part payment of gratuity was paid pursuant to order of the Hon’ble High Court of Gujarat. 3. 1,38,979/- Principal amount towards gratuity is unpaid. 44,180=00 Interest accrued on an amount of Rs.1,80,615/- i.e. from 1.8.2007 to 30.9.2008. The said amount is unpaid till date. 4. 91,740=00 Interest on Rs.1,38,979=00 which is due and payable from 1.8.2007 to 30.4.2010 5. 2,74899=00 Total amount due and payable towards gratuity as on 30.4.2009 (total of 2+3+4) 6. 5119.10 Amount to be recovered from Nagarpalika 7. 2,80,018=00 Total unpaid amount which is recoverable from Nagarpalika as on 30.4.2010 8. Not quantified Interest on the delayed payment from 1.5.2010 till its actual realization is not quantified. 9. It is not in dispute that the petitioner retired from the service on superannuation, in 2007. It is the claim of the petitioner that at the time of retirement he had completed service of 27 years with the Nagar Palika. According to the petitioner he was entitled to receive Rs. 2,94,217/- towards gratuity. Whereas the petitioner was paid Rs. 1,80,615/- vide cheque No. 446051 dated 16.10.2008. 9.1 Thus, according to claimant a sum of Rs. 1,38,979/- remained outstanding. 9.2 The petitioner claims unpaid/outstanding amount towards gratuity with interest in accordance with law. 9.3 It is the claim of the petitioner that the interest for the amount towards gratuity in respect of the amount paid on 16.10.2008 i.e. in respect of Rs. 1,80,615/- should also be paid to him. 9.4 From the submissions by learned advocate for the petitioner and the respondent Nagar Palika as well as from the submissions by the State Government it appears that the controversy between the parties arose on account of the respondent's allegation and claim against present petitioner that after receiving Rs. 94,449/- for payment to the concerned parties, the petitioner neither paid said amount to the concerned parties nor did he return the said amount to the Nagar Palika and therefore said amount remained with the petitioner. 94,449/- for payment to the concerned parties, the petitioner neither paid said amount to the concerned parties nor did he return the said amount to the Nagar Palika and therefore said amount remained with the petitioner. 9.5 According to the respondent Nagar Palika, Nagar Palika is entitled to withhold gratuity to the extent the petitioner did not return/pay the amount or in respect of which the accounts have not been submitted by the petitioner. 10. Mr. Chauhan, learned advocate for the petitioner vehemently opposed the said allegation and he submitted that the petitioner had paid amount to the concerned parties and had also submitted relevant vouchers. 11. From rival contentions and allegations by the petitioner and respondent No. 3 it appears that the said issue involves disputed fact however, said controversy and dispute is beyond the scope of present petition. It can, therefore, be adjudicated, decided/settled in appropriate proceedings. 12. If the Nagar Palika has to recover any amount from the petitioner then the respondent Nagar Palika can take necessary action in accordance with law. 12.1 However, unless the respondent Nagar Palika follows the procedure prescribed by law for withholding gratuity amount i.e. issue show cause notice as to why the amount in question should not be withheld or adjusted or forfeited until it conducts inquiry in respect of the allegation and proves charge after giving opportunity of hearing, the respondent Nagar Palika cannot withhold or set off or forfeit amount payable towards gratuity. 13. In present petition it is not in dispute that at any stage respondent Nagar Palika, until now, has not issued any show cause notice and/or has not called upon the petitioner to show cause as to why said amount of Rs. 94,449/- should not be recovered from him or adjusted against retiral dues. Moreover order to withhold or set off/adjust or forfeit part of the gratuity so as to recover the alleged dues is not passed by the respondent Nagar Palika. 14. In this view of the matter the petitioner, without prejudice to the rights of the respondent Nagar Palika to demand and recover the amount in question is entitled to receive full amount payable towards gratuity and interest, in case payment is delayed. 15. The amount toward gratuity should have been paid to the petitioner on or before 1.9.2007 (having regard to the fact that the petitioner retired from service on 1.8.2007). 16. 15. The amount toward gratuity should have been paid to the petitioner on or before 1.9.2007 (having regard to the fact that the petitioner retired from service on 1.8.2007). 16. In this view of the matter, the Nagar Palika should calculate the amount payable to the petitioner from the date of his retirement i.e. 1.8.2007 and pay interest to be calculated from 1.9.2007. 17. In view of the undisputed fact that Rs. 1,80,615/- is already paid to the petitioner on 16.10.2008, the petitioner would be entitled to claim interest in respect of the said amount i.e. Rs. 1,80,615/- for the period from 1.9.2007 to 15.10.2008. 18. Besides said amount the petitioner will be entitled to receive interest for unpaid gratuity after adjusting Rs. 1,80,615/- from 1.9.2007 to the date on which the amount is actually paid to the petitioner. 19. It is given out by the learned advocate for the respondent Nagar Palika that it has already deposited a sum of Rs. 2,13,971/- with the registry of this Court and appropriate amount payable to the petitioner may be adjusted and balance amount may be refunded to the Nagar Palika. 20. In view of the said submissions, following order is passed:- The respondent No. 3 nagar palik and petitioner will submit a statement which shall reflect the total amount of gratuity payable to the petitioner on his retirement and said shall also reflect calculation of the interest payable to the petitioner in respect of Rs. 1,80,615/- for the period from 1.9.2007 to 15.10.2008. The statement shall also reflect the amount which would be payable to the petitioner towards amount of gratuity i.e. after deducting/adjusting Rs. 1,80,615/-. The petitioner will be entitled for interest in respect of such balance amount till the date on which payment is made. The Nagar Palika shall declare that said amount is payable towards gratuity and interest, which shall be without prejudice to its claims/allegations and right to recover the amount in accordance with law. The registry will take into account the said statement and pay the amount accordingly to the petitioner, after due verification of proof of identity. The balance amount, with accrued interest, shall be paid back to the Nagar Palika. With the aforesaid clarifications the petition is partly allowed. Rule is made absolute to the aforesaid extent. Accordingly the petition stands disposed of. Orders accordingly. At this stage Mr. The balance amount, with accrued interest, shall be paid back to the Nagar Palika. With the aforesaid clarifications the petition is partly allowed. Rule is made absolute to the aforesaid extent. Accordingly the petition stands disposed of. Orders accordingly. At this stage Mr. Mankad, learned advocate clarified that after abovementioned amount of Rs. 2,13,971/- was deposited by the Nagar Palika, the interest earned over the said amount was directed to be paid to the petitioner and accordingly the petitioner. The said statement by learned advocate for the respondent Nagar Palika is not disputed by the petitioner. Therefore, it is further clarified that it will be permissible for the respondent Nagar Palika to adjust the amount paid to the petitioner in pursuance of this Court's order dated 4.12.2012 whereby the Court directed - as interim relief that the interest in respect of Rs. 2,13,971/- deposited by the Nagar Palika should be paid to the petitioner. The Nagar Palika shall be at liberty to adjust the said amount against the amount which remains outstanding/payable to the petitioner towards interest from 1.9.2007. After such adjustment if any amount becomes payable by the Nagar Palika to the petitioner towards interest from 1.9.2007, then such amount shall be paid as expeditiously as possible and preferably within 8 weeks after receipt of certified copy of this order.