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2018 DIGILAW 2929 (BOM)

Megha Pradyumna Palshikar v. Maharashtra Executors And Trustee Co. Ltd.

2018-12-11

SHALINI PHANSALKAR-JOSHI

body2018
JUDGMENT Shalini Phansalkar-Joshi, J. - Heard learned counsel for the Applicant-Original Respondent and learned counsel for the Respondent-Original Petitioner. 2. This Notice of Motion is filed by the Applicant seeking following reliefs. "(a) That this Court be pleased to permit the Applicant (Original Respondent) to withdraw an amount of Rs. 4,17,114/- deposited by the Original Petitioner in this Court pursuant to the direction issued to the Petitioner vide orders 23.2.2017 and 10.3.2017 in Notice of Motion No. 417 of 2015. (b) That this Court be pleased to direct the office to pay an amount of Rs. 4,17,144/- along with interest accrued thereon deposited by the Petitioner in this Court. (c) That this Court be pleased to direct the Respondents/Trust to give entire calculations of gratuity and Provident Fund along with interest accrued thereon on both the accounts and payable to Applicant." 3. It is admitted fact that the Applicant-employee was terminated from service on 18/10/2001 on account of his long absence and the challenge to the said termination was futile. Thereafter, he filed an Application under Section 32 C (2) of The Industrial Disputes Act, 1947, for the back wages. It was allowed. The said order is challenged in this Writ Petition by the Petitioner-employer. When the Writ Petition came up before this Court on 23/02/2017 learned counsel for the Petitioner-employer has made a statement that the sum of Rs. 1,72,363/- as employees share and Rs. 1,72,363/- as employer''s share i.e. totally the amount of Rs. 3,44,726/- was due towards Provident Fund to the employee and further sum of Rs. 72,388/- was lying with the employer towards gratuity. The Petitioner-employer has shown the readiness to deposit this amount with the Registry of this Court and accordingly, the said amount is deposited. 4. At the same time, by the order dated 10/03/2017 the Petitioner-employer was also directed to give the details of the calculations. The liberty was granted to the employee to prefer appropriate application, if he so desires for withdrawal of the said amount and it was ordered that the said application will be decided on merits. 5. It is also pointed out that, by the order dated 15/07/2017, the Petitioner-employer has made a statement that if such application was made, it would be considered favourably. 6. 5. It is also pointed out that, by the order dated 15/07/2017, the Petitioner-employer has made a statement that if such application was made, it would be considered favourably. 6. Despite that, on the application being made by the employee, the amount was not paid to him and hence, this Notice of Motion was filed for withdrawal of the amount which, is as per the own calculation of the Petitioner-employer, is deposited in this Court. 7. The submission of learned counsel for the Petitioner-employer is that there is an efficacious appropriate remedy available for withdrawal of the amount of the gratuity and provident fund and hence, it would not be proper for this Court to entertain such request or to grant the permission to withdraw the amount. It is submitted that the Petitioner-employer may be having several defences like the limitation, the forfeiture etc, which the Petitioner could raise only before the appropriate authority. Reliance is placed on the judgment of the Hon''ble Apex Court in the case of State of Punjab v. Labour Court, Jullunder and Others, 1979 (39) SCC 353 to submit that the Payment of Gratuity Act, 1972, is a self contained Code, which provides all the remedies thereunder itself relating to the payment of gratuity which can be claimed under the Act and its provisions impliedly exclude recourse to any other statute for that purpose. It is submitted that this Court in the Writ Petition filed by the employer, cannot grant such relief to the employee. 8. It has to be stated that the amount is deposited in the Court by the Petitioner-employer as per the order passed by this Court and therefore, the Respondent-employee cannot withdraw the amount without the order passed by this Court. No other authority can also permit him to withdraw the said amount, unless this Court has passed the order. Therefore, there is hardly any substance in the said contention of the Petitioner that the Respondent should approach the appropriate authority. 9. Secondly, the amount deposited by the Petitioner is as per its own calculation and therefore, so far as the said amount is concerned, it is undisputed. Hence, the Applicant-Original Respondent can definitely be permitted to withdraw this amount, as the dispute raised in the Writ Petition has nothing to do with his claim towards amount of gratuity and the provident fund. Hence, the Applicant-Original Respondent can definitely be permitted to withdraw this amount, as the dispute raised in the Writ Petition has nothing to do with his claim towards amount of gratuity and the provident fund. Admittedly, the amount of gratuity is yet not forfeited. It can be forfeited only on any one of the grounds laid down in Section 4 of the Act. None of the ground is applicable here in the case. There is no any question of limitation as such also, as it was for the Petitioner-employer to pay this amount of gratuity and they have discharged their liability by depositing the amount in the Court. In view thereof, I do not find any reason to deny this prayer sought in the Notice of Motion. It is pertinent to note that despite the direction given by this Court to the Petitioner-employer to furnish the calculations of this amount, the Petitioner-employer has not done so and therefore the Notice of Motion is allowed. 10. The Applicant-Original Respondent is permitted to withdraw the amount of Rs. 4,17,144/- deposited by the original Petitioner in this Court along with interest accrued thereon. 11. The Office is directed to pay the said amount to the Applicant-Original Respondent. 12. Further the Petitioner-employer is directed to submit the entire calculation of gratuity and provident fund along with interest accrued thereon on both the accounts, to the Applicant-Original Respondent within a period of three months from today. 13. Notice of Motion is disposed of in above terms.