Ishwarlal Mohanlal Thakker v. Superintendent Engineer
2017-07-14
R.SUBHASH REDDY, VIPUL M.PANCHOLI
body2017
DigiLaw.ai
ORDER : R. SUBHASH REDDY, J. 1. The original petitioner in Special Civil Application No. 1282 of 2016 has filed this appeal under Clause 15 of the Letters Patent aggrieved by the order of learned Single Judge dated 15.3.2017 2. The aforesaid Special Civil Application was filed under Article 226 of the Constitution of India with the prayers which read as under: “8(A) YOUR LORDSHIPS be pleased to issue an appropriate writ, order or direction, thereby quashing and setting aside the order of Appellate Authority in Appeal no. 88 of 2015, dtd.03.11.2015 and further direct the respondents to pay interest @18% P.A On delayed payment of amount of gratuity to the petitioner from the date of retirement of petitioner in the interest of justice and equity; (B) YOUR LORDSHIPS be pleased to issue an appropriate writ, order of direction, thereby quashing and setting aside the order of Appellate Authority in Appeal No. 88 of 2015 dtd.03.11.2015 and further direct the respondents to pay interest @18% P.A On delayed payment of amount of gratuity to the petitioner from the date of retirement of petitioner, pending admission, hearing and final disposal of this petition; (C) YOUR LORDSHIPS be pleased to issue an appropriate writ, order or direction, thereby directing the respondents to consider superannuation of the petitioner of the year 2000, as ordered by the Hon'ble Apex Court, and fix the Gratuity of the petitioner as per the pay grade of the year 2000, and pay the difference of the amount of Gratuity. (D) YOUR LORDSHIPS be pleased to grant such other and further reliefs as deemed fit in the interest of justice.” 3. The petitioner was in service of the respondent and his date of birth was entered as 27.6.1937 It was his case that his correct date of birth is 27.6.1940 but basing on the date of birth as 27.6.1937, he was retired prematurely. As this Court has negatived his claim, he approached the Hon'ble Supreme Court by filing Civil Appeal No. 4558 of 2014. The operative portion of the judgment of the Hon'ble Supreme Court reads as under: “11.
As this Court has negatived his claim, he approached the Hon'ble Supreme Court by filing Civil Appeal No. 4558 of 2014. The operative portion of the judgment of the Hon'ble Supreme Court reads as under: “11. In view of the aforesaid reasons, we allow the appeal, set aside the impugned judgment and order of the High Court and restore the award of the Labour Court, since the services of the appellant were prematurely superannuated taking his date of birth as 27.06.1937 instead of 27.06.1940, and therefore, he is entitled to full back wages and other consequential monetary benefits from the date of termination till the date of his correct superannuation considering his date of birth as 27.06.1940 The back wages shall be calculated on the basis of revised pay scale and the same must be paid by way of demand draft to the appellant within six weeks from the date of receipt of the copy of this I order, failing which the respondent shall pay interest @12% per annum on the amount due, towards back wages and other consequential I monetary benefits, from the date of the Award of the Labour court till the date of payment.” 4. It is not disputed by the learned counsel that the amount which was ordered to be paid in terms of the order dated 16.4.2014 was paid within time. However, learned counsel placed reliance on Section 7(3A) of Payment of Gratuity Act which reads as under: “Determination of the amount of gratuity 7(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central government from time to time for repayment of long term deposits, as that Government may, by notification specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.” 5.
It is true that if the amount of gratuity payable to the employee is not paid within the stipulated period, under sub-section 3 of Section 7, the employer shall pay such gratuity amount payable to the employee from such date with simple interest not exceeding the rate notified by the Central Government from time to time. At the same time, it is to be noticed that the continuance of service beyond 30.6.1997 was not disputed and ultimately it is crystallized only by virtue of the order passed by the Hon'ble Supreme Court on 16.4.2014 in which directions were given that he was entitled for full back wages and all consequential monetary benefits by treating his date of birth as 27.6.1940 At the same time, the Hon'ble Supreme Court has fixed six weeks time from the date of the receipt of the order for payment of back wages and all consequential amounts and ordered that failing to pay such amount within the time fixed, the appellant herein is entitled for interest @12% p.a on the amount due towards back wages and other consequential monetary benefits. In view of the specific directions of the Hon'ble Supreme Court and when it is not disputed that directions are complied by paying all monetary benefits within the time as fixed by the Hon'ble Supreme Court, we are of the view that unless such order is modified, the appellant is not entitled for any interest on the ground that due amount of gratuity was not paid within the time of Section 7(3A) of Payment of Gratuity Act. 6. For the aforesaid discussion and in view of the reasonings recorded by the learned Single Judge, we do not find any merits in this appeal so as to interfere with the order of the learned Single Judge. The appeal being devoid of merits is dismissed.