JUDGMENT : 1. With the consent of the parties, hearing of this matter has been done through video conferencing. They have no complaint about any audio and visual connectivity. I.A. No.3914 of 2019 2. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 352 days in preferring this Letters Patent Appeal. 3. Heard. 4. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation. 5. Accordingly, I.A. No.3914 of 2019 is allowed and delay of 352 days in preferring the appeal is condoned. L.P.A. No.318 of 2019 6. This instant intra court appeal is directed against the order/judgment dated 06.04.2018 passed in W.P.(S) No.5037 of 2014, whereby and whereunder the learned Single Judge in place of payment of gratuity along with statutory interest for the delayed payment for the period from 01.03.1995 to 06.02.2018, has directed to make payment of lump sum amount of Rs.50,000/- in favour of the writ petitioner-appellant by way of interest on the amount of gratuity. 7. The brief facts of the case, which require to be referred herein, read hereunder as: The appellant was appointed on 12.10.1963 to the post of Junior Engineer and after rendering the service as Assistant Engineer while posted at Zila Parishad, Chaibasa, he was superannuated from service on attaining the age of superannuation with effect from 28.02.1995. The writ petitioner-appellant after his retirement, had submitted representation before the concerned authority for disbursement of the amount of arrears of salary as also the retiral dues, but of no avail, being aggrieved with the inaction on the part of the authority the appellant filed writ petition being W.P.(S) No.5037 of 2014, seeking therein a direction upon the respondents to make payment of interest on the gratuity and while considering, the learned Single Judge of this Court has directed to make payment of Rs.50,000/- by way of lump sum amount against the interest to be paid on gratuity, against which the present intra court appeal has been preferred. 8. 8. Learned counsel appearing for the writ petitioner-appellant submitted that as per the Payment of Gratuity Act, 1972, the State respondent is liable to make payment of gratuity as would be evident from the provision of Section 7 of the Payment of Gratuity Act, 1972, but no such decision was taken fairly for a long period and finally he approached the writ Court, wherein the learned Single Judge, even though, has come to the conclusion about the entitlement of the writ petitioner as per the provision as contained in Payment of Gratuity Act, 1972, has refused to issue direction for making payment of interest as per the statutory provision, rather directed to make payment of lump sum amount of Rs.50,000/-, even though it was brought to the notice of the learned Single Judge that the service record of the writ petitioner was not traceable and hence delay in making payment of interest had been caused, and when there is delay on the part of the authority, there is no reason to deny interest in favour of the writ petitioner-appellant as per the statutory provision, but without appreciating this aspect of the matter, the writ petition has been disposed of, merely by issuing direction to make payment of Rs.50,000/- by way of lump sum compensation. 9. Mr. Rounak Sahay, learned A.C to S.C-VI for the State has submitted that the contesting party is the respondent no.2 i.e. the Secretary, Zila Parishad, district Singhbhum West and he has to say nothing. 10. Mr. Krishna Murari, learned counsel for the respondent no.2 submitted that the writ petition has been filed after delay of 19 years from the date of retirement of the writ petitioner and on such ground alone, the writ petition ought to have been rejected, but the learned Single Judge instead of rejecting it, had directed for making payment of lump sum amount of Rs.50,000/- and therefore, according to him it is not proper. His further submission is that when the writ petitioner-appellant has delayed in making representation for getting the amount of disbursement against the head of gratuity, therefore, it is laches on the part of the writ petitioner and he is not entitled to get any penny towards the interest and considering this aspect of the matter, the learned Single Judge has directed for making payment of Rs.50,000/- by way of lump sum amount, hence the judgment is not proper. Learned counsel for the respondent no.2 has also submitted that the amount of interest on gratuity, cannot be allowed to exceed under the Payment of Gratuity Act, as would be available from Section 8 of the Payment of Gratuity Act, 1972. 11. Learned counsel appearing for the writ petitioner-appellant has submitted that the ground which has been canvassed by way of argument on behalf of the respondent no.2, is not available to be agitated, it is for the reason that the respondent no.2 has not assailed the order passed by the learned Single Judge. 12. This Court, having heard learned counsel for the parties and after going across the materials available on record as also the finding recorded in the impugned order, has found therefrom that the learned Single Judge has denied the claim for making payment of interest against the delayed payment of gratuity taking into consideration the fact that the service record of the writ petitioner was not traceable, payment in time could not be made as also the writ petitioner has failed to plead necessary fact for payment of interest on gratuity and accordingly, instead of granting interest on the entire amount of gratuity from 01.03.1995 to 06.02.2018, the conclusion has been arrived at to make payment of Rs.50,000/- by way of lump sum amount against the interest on gratuity. Learned Single Judge has referred the provision of Section 7(3) and (3A) of the Payment of Gratuity Act. We thought it proper to go across the provision of Section 7 of the Payment of Gratuity Act, the relevant extract of which reads hereunder as: “7. Determination of the amount of gratuity.-(1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. Determination of the amount of gratuity.-(1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. (2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined. [(3) The employer shall arrange to pay the amount of gratuity, within thirty days from the date it becomes payable to the person to whom the gratuity is payable. (3-A) 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.]” …. ….. …… …… …… xxx It is evident from Section 7(1) of the Payment of Gratuity Act, which contains the provision about determination of the amount of gratuity and if a person is eligible for payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. Therefore, sub section 1 of Section 7 clearly provides posing duty upon a person who is eligible for gratuity, to send a written application to the employer, within such time and in such form, as may be prescribed, but herein, it is not the case of the respondent no.2 that the person, the writ petitioner herein, has been supplied with any instrument posing duty upon him to send a written application within the time as prescribed in the said instrument. It is further evident from the provision of sub section 2 of Section 7 that as soon as the gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined, meaning thereby, even if no such written application has been filed, as required to be filed under the provision of sub section 1 to Section 7, it is the duty of the employer to determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable. It is the admitted case herein that there is no compliance on the part of the respondent no.2 as per the provision made under sub section 2 of Section 7 of the Payment of Gratuity Act. Sub section 3 to Section 7 provides that the employer shall arrange to pay the amount of gratuity, within thirty days from the date it becomes payable to the person to whom the gratuity is payable, meaning thereby, if the determination of amount of gratuity as provided under sub section 2 to Section 7 the amount of gratuity has to be paid within thirty days from the date it becomes payable as has been provided under sub section 3 to Section 7. Sub section 3-A to Section 7 contains a provision that if the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3) i.e. within the period of thirty days, 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. It is evident from the provision of sub section 3-A of Section 7 provides for making payment of interest, in case it delayed payment, and if the delay has not occurred due to the fault of the employee. Reference of the provision of Section 8 of the Payment of Gratuity Act, 1972 is also being made hereunder, which provides that the amount of interest payable under this section shall in no case exceed the amount of gratuity payable under this Act. 13. We have proceeded to examine the contention raised by the learned counsel for the respondent no.2 in opposition, as also the finding recorded by the learned Single Judge. The admitted position herein is that the delay has been caused in payment of gratuity, merely because of the service record of the writ petitioner-appellant was not traceable. The question is, who is the custodian of the service record as per the applicable Service Code? The custodian of the service record is the employer and if the service record is not traceable, the writ petitioner/employee cannot be held responsible and in such situation, it cannot be said that there is delay in filing application by the employee and as such, according to our considered view, as per the provision to sub section 3-A of Section 7 of the Payment of Gratuity Act herein, it is the fault on the part of the employer in not discharging the statutory duty about non disbursement of amount of gratuity as per the provision provided under sub section 2 and 3 of Section 7. The question has been raised by the learned counsel appearing for the respondent no.2 that there is delay in approaching the Court of law by filing the writ petition under Article 226 of the Constitution of India, but the said point is not available to the respondent no.2, since he has not challenged the order passed by the learned Single Judge, wherein direction to the effect for making payment of Rs.50,000/- against the interest on gratuity has been directed to be released, and if at all the respondent no.2 was aggrieved he ought to have filed appeal against the order passed by the learned Single Judge. It is settled law that in an appeal the respondent cannot be allowed to question the judgment. This Court, however, has considered this aspect of the matter and thought it proper to answer the same since the issue of delay and laches has been raised. The writ petition can be thrown on the ground of delay and laches on the basis of the principle that a fence sitter cannot be allowed to invoke the jurisdiction of a Court of equity, as because the fence sitter means the person waiting for litigation and when the result has come and a party approaches to the Court of law, in that situation, the benefit would be said to be belated. It is also not in dispute that the fence sitter cannot be allowed to get the benefit of judgment by invoking the jurisdiction of Court of law after lapse of long delay, this principle is subject to well recognized based on the form of delay and laches as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who have/had approached the Court earlier in time, had succeeded in their efforts, then such employees cannot claim the benefit of the judgment rendered in the case of similarly situated persons be extended to them as because they are to be treated fence sitter and caused laches and delay, and/or the acquiescence would be valid ground to dismiss their claim, but in the facts and circumstances of the present case whether the principle of fence sitter would be applicable is now required to be seen. We have gathered from the record as also the statutory provision as contained in the Payment of Gratuity Act, 1972, wherein statutory duty has been casted upon the employee under the Central Act i.e. Payment of Gratuity Act, 1972 as would be evident from the provision as contained in sub section 2 and 3 to Section 7, whereby and whereunder irrespective of the fact that written application is to be submitted by the person who is eligible for Payment of Gratuity Act, as required under sub section 1 to Section 7 but as per provision contained in sub section 2 which provides that as soon as gratuity becomes payable, the employer shall, whether application referred to in sub section 1 has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable, meaning thereby, it is the statutory duty as has been mandated under sub section 2 to Section 7 by inserting the word “shall” to determine the amount of gratuity and to pay it within thirty days from the date it becomes payable as provided under sub section 3 to Section 7 of the Payment of Gratuity Act, 1972. The aforesaid statutory provision casts duty upon the employer and if the statute mandates something, it is incumbent upon the competent authority to act in pursuance to the statutory provision as has been held by the Hon’ble Apex Court in the case of State of Uttar Pradesh & Others Vrs. Arvind Kumar Srivastava & Others reported in (2015) 1 SCC 347 , wherein it has been held that the well recognized acceptance in the form of delay and laches as well as acquiescence may not apply in those case where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities itself to extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like. With such a pronouncement the obligation is cast upon the authorities itself to extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like. This Court applying the aforesaid principle and taking into consideration the statutory provision as contained under Section 7(2) and (3), is of the considered view that when there is statutory provision for determination of the amount of gratuity immediately after superannuation and its disbursement within the period of thirty days, in that view of the matter, it is incumbent upon the employer-authority to exercise the power in pursuance to the said statutory provision and if such action has not been exercised, the learned counsel for the respondent no.2 cannot be allowed to agitate the ground of laches and delay and, therefore, the submission about throwing out the appeal on the ground of delay and laches, is not available to the learned counsel for the respondent no.2. It is the admitted fact herein that the service book of the writ petitioner was traceless which led the learned Single Judge to issue a direction for making payment of a lump sum amount of Rs.50,000/-. The question is, can a writ Court pass direction contrary to the statutory provision or in absence of any provision under the act about the lump sum payment of interest on the amount of gratuity? This Court, is of the view that the writ Court, in exercise of power conferred under Article 226 of the Constitution of India, cannot exercise such power, rather the writ Court is to exercise the power strictly in accordance with the statutory provision and if there is any deviation from the statutory provision by the action of the authority, it is incumbent upon the writ Court in exercise of the power conferred under Article 226 of the Constitution of India to issue appropriate writ to set it right and direct the authority to act in pursuant to the statutory provision. However, the learned Single Judge, while passing the impugned order, has completely ignored the statutory provisions as contained in Payment of Gratuity Act, 1972 even though the statute does not contain provision to make payment of lump sum amount by way of interest upon the delayed payment of gratuity, has directed the authority to make payment of Rs.50,000/- which according to us, cannot be said to be justified, rather the same would be in excess of the jurisdiction by the writ Court. 14. In view thereof, this Court is of the view that the learned Single Judge has committed error in passing the impugned order/judgment. Therefore, we are of the view that the order/judgment impugned in the instant appeal is not sustainable in the eye of law and accordingly, the same is quashed and set aside. Accordingly, the appeal stands allowed and the writ petition, pertaining to the disbursement of interest upon delayed payment of gratuity as per the relevant statutory provision also stands allowed. 15. In consequence thereof, the respondents are directed to make payment of interest on gratuity in pursuance to the provision of Payment of Gratuity Act, 1972 within the period of three months from the date of receipt of copy of the order. 16. The appeal stands disposed of.