Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 1040 (GUJ)

Lachhuben Merajbhai Rabari v. State of Gujarat

2019-10-23

SONIA GOKANI

body2019
ORDER : Sonia Gokani, J. 1. This is a petition preferred under the Payment of Gratuity Act, 1972. The petitioner no. 1 is a retired employee and petitioner no. 2 is a registered Trade Union registered under the Trade Union Act, 1926. A detailed chart with the names and service particulars of the employees on whose behalf the petition is filed is at Annexure-A. 2. The respondent no. 1 is the State under Article 12 of the Constitution of India and no. 2 - Assistant Director of the Animal Husbandry is an officer of the State. It is averred by the petitioner that no. 2 has not yet respected the order of the Court and no. 3 - District Collector, Banaskantha has not recovered the amount from the employer. The petitioner has lamented the non-recovery and helplessness of the citizens. 3. It is the say of the petitioner that the Controlling Authority had issued the recovery certificate with 10% interest. The Controlling Authority had issued recovery certificate in favour of the employees, since, the respondents had not complied with the order. The recovery certificate is to be executed by the respondent no. 3. Till date, the same has not been recovered by the respondent no. 3, and therefore, the petitioner is before this Court seeking following prayers: "A. This Hon'ble Court may be pleased to declare that the inaction of respondent no. 2 in paying and of respondent no. 3 in recovering the amount of gratuity as per certificate issued by controlling authority is illegal, unjust, arbitrary and violative of Article 14 of the Constitution of India and be pleased to direct respondent no. 3 to recover the amount as per the recovery certificates (Annexure-C [Collectively]) from respondent no. 1 and pay it to the employees accordingly. B. The Hon'ble Court be pleased to direct respondent no. 1 to issue appropriate direction to all concern to act as per the litigation policy and recover the cost, compensation and interest payable to the employees from the personal pay of the earning officer. C. Pending admission and final hearing of the present petition, the Hon'ble Court be pleased to direct the respondent no. 3 to recover the amount of gratuity as per the certificates at Annexure-C (collectively) from respondent no. 2 and pay it to the concern employees. C. Pending admission and final hearing of the present petition, the Hon'ble Court be pleased to direct the respondent no. 3 to recover the amount of gratuity as per the certificates at Annexure-C (collectively) from respondent no. 2 and pay it to the concern employees. D. Pending admission and final disposal of the present petition, the Hon'ble Court be pleased to direct the respondent no. 2 and 3 to give detail report for non-payment of amount of gratuity to the employees concern. E. The Hon'ble Court be pleased to direct the respondents to pay special cost and compensation to the concern employees and direct respondent no. 1 to recover the same from the personal salary of the earning officer." 4. This Court (Coram: Mr. Justice Bhargav D. Karia) on 05.08.2019 issued notice by following order: "Learned advocate Mr. P.H. Pathak for the petitioners has tendered draft amendment. The same is allowed in terms of draft. To be carried out forthwith. Learned advocate Mr. P.H. Pathak for the petitioners undertakes to pay the requisite Court fees today. Issue Notice returnable on 27th August, 2019. Respondent no. 3- Collector is directed to give explanation as to why recovery certificates issued on 16.07.2018 by the controlling authority under the Payment of Gratuity Act, 1972, Palanpur, are not executed. If no explanation is filed on or before the returnable date, respondent no. 3-Collector is directed to personally remain present before this Court at 11.00 a.m. on the next returnable date. Direct service qua respondent no. 2 is permitted. Learned advocate Mr. P.H. Pathak is directed to serve advance copy to learned AGP Mr. Bhargav Pandya." 5. The Affidavit-in-reply has been filed by the Collector, Banaskantha. According to him, the certificate dated 16.07.2018 had been received by his office on 18.07.2018. He sent it with a letter to the Mamlatdar for execution of the same on 20.07.2018 and also sent another letter dated 20.07.2018 to the Assistant Director of the Animal Husbandry. It is his say that vide letters dated 04.08.2018 and 06.08.2018, the respondent no. 2 has informed to the office of the Collector that the respondent no. 2 has forwarded the proposal for issuance of grant toward the amount of gratuity to the Director of Animal Husbandry. 6. It is his say that vide letters dated 04.08.2018 and 06.08.2018, the respondent no. 2 has informed to the office of the Collector that the respondent no. 2 has forwarded the proposal for issuance of grant toward the amount of gratuity to the Director of Animal Husbandry. 6. On 27.09.2018, the office of the Collector again sent a letter to the Assistant Director of the Animal Husbandry and informed that as soon as the grant is made available, the payment needs to be made towards the recovery certificate issued by the Controlling Authority under the Payment of Gratuity Act, 1972. On 06.10.2018, the respondent no. 2 had communicated to the respondent no. 3 that no grant so far had been received. On 10.10.2018, the President of the petitioner no. 2 informed the respondent no. 3 with regard to the recovery certificate. A reminder therefore once again was sent on 16.10.2018 to the respondent no. 2. The respondent no. 2 had informed that grant had not come, therefore, the payment had not been made. Till 05.08.2019 no grant had been issued to the respondent no. 2. It is further the say of the respondent no. 3 that he had sent a letter to the respondent no. 2 and Mamlatdar, Kankrej on receiving the fax message from the office of the Government Pleader, Gujarat High Court. On 20.08.2019, the respondent no. 2 had informed his office that they have already sent the various correspondents to the department of Animal Husbandry. On 20.08.2019, on receipt of a letter, he also communicated on 21.08.2019 through fax to the Director of Animal Husbandry. It is thus his say that he had sincerely processed the recovery certificate issued by the Controlling Authority under the payment of Gratuity Act. 7. So far as Merajbhai Masrubhai Rabari is concerned-petitioner no. 9, the amount of gratuity has been deposited prior to the issuance of the certificate. 8. This Court notices that till date, no recovery has been effected. The respondent no. 3 also became complacent with communications to the Mamlatdar and respondent no. 2. At a latter state, he attempted to communicate to the Director of Animal Husbandry, however, from the party concerned/employer concerned, there is an onus and responsibility of the respondent no. 3 to recover it by way of land revenue. The mere correspondence or a persuasion may not yield the result and the respondent no. 2. At a latter state, he attempted to communicate to the Director of Animal Husbandry, however, from the party concerned/employer concerned, there is an onus and responsibility of the respondent no. 3 to recover it by way of land revenue. The mere correspondence or a persuasion may not yield the result and the respondent no. 3 is not even supposed to wait for indefinite period and go-on making the requests to the employer and to all concerned, more so, when the employer is one of the departments of the Government. It is noticed that the first order passed by the Controlling Authority for the payment of gratuity is 15.04.2017, and thereafter, the certificate had been issued in July, 2018. At this stage, learned Assistant Government Pleader makes a request to grant two days' time to ensure that the entire amount as directed in the recovery certificate is deposited with the concerned authority or before this Court. At his instance, the further order is to be passed on 25th October, 2019. Let the matter appear on 25th October, 2019. Copy of this order shall be given to learned Assistant Government Pleader for onward communication.