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2019 Supreme(Guj) 433
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER, J.
Daminiben Hathising Rathod - Petitioner
Versus
Ahmedabad Municipal Corporation & Others - Respondents
Special Civil Application No. 20310 of 2016
Decided On : 08-04-2019
For the Petitioner: Mr. Yogen N. Pandya
For the Respondent: Ms. Ritu Guru, AGP., Mr. P.G. Desai, Senior Counsel With Mr. Hamesh C. Naidu.
Headnote:
Civil Services (Pension) Rules, 2003 - Sections 23, 24 and 144 to 146 -Pension Rules -Sections 23 and 24, 2 (55), 24 (2) subsection (1) (2) 1(3) -Gratuity Act -Sections 4 to 7, 8, 14, 4(6), 2(r), 4 2(e), 5, 4(5), 4(2), 4(1), 7(2), 4(1) - Learned advocate for the petitioner learned senior counsel with learned advocate for the respondent corporation - Lordships may be pleased to issue a writ of mandamus and/or an appropriate writ order or direction in the nature of mandamus quashing and setting aside the impugned orders passed the learned Controlling Authority - Under the Payment of Gratuity Act in Gratuity Case dated the learned Appellate Authority under the Payment of Gratuity Act in Appeal Case dated Reviewing Authority in Review Application in Gratuity Appeal as they being exfacie illegal unjust improper without considering the facts and evidence on record and without application of mind in the interest of justice - Petitioner is aggrieved by the orders passed by the Adjudicating Authority and the Appellate Authority order dated in Appeal and Reviewing Authority -Held, Relevant provision in view of foregoing discussion and for reasons mentioned - Court is of the view that the authorities under the Gratuity Act have committed error in refusing the demand and claim for interest in respect of delay in payment of gratuity and the impugned orders passed by the authorities are not sustainable and they deserve to be set aside and the petitioner is entitled to receive interest for the period in question - From foregoing discussion it emerges that impugned orders deserve to be set aside - Action of the corporation viz. to withhold gratuity and refusing to pay interest in respect of the delay is unjust incompetent contrary to the provision under Gratuity Act and it cannot be sustained - Controlling Authority and/or Appellate Authority should have granted the relief prayed for by the petitioner - Decision by the authorities to deny the applicants request - Learned senior counsel for the corporation relied on the decision of High Court of in the case said decision is rendered in light of Rules of different amplitude and effect and it appears that Section of Gratuity Act was not pressed in service or did not fall for consideration in said case - Said decision does not render assistance to the petitioner - Facts of present case and in light of relevant provision and foregoing discussion it has emerged that the petitioner is eligible and entitled for interest for the period the corporation did not pay gratuity from the date when gratuity became payable in accordance with Section of Gratuity Act till the date of actual payment - Petitioner should be paid interest for the said period of delay at the same rate which is notified for the purpose of Section - Consequently the orders passed by the Adjudicating Authority and the Appellate Authority - Petition is partly allowed.
1. Heard Mr. Pandya, learned advocate for the petitioner, Ms. Guru, learned AGP and Mr. P.G. Desai, learned senior counsel with Mr. H.C. Naidu, learned advocate for the respondent corporation.
2. In present petition, the petitioner has prayed, inter alia, that:
“17(B) Your Lordships may be pleased to issue a writ of mandamus and/or an appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the impugned orders passed by; (i) the learned Controlling Authority, Ahmedabad under the Payment of Gratuity Act, 1972, in Gratuity Case No.609 of 2013, dated 27.02.2015, (ii) the learned Appellate Authority, Ahmedabad, under the Payment of Gratuity Act, 1972, in Appeal Case No.115 of 2015, dated 21.01.2016 and (iii) the Reviewing Authority in Review Application No.30 of 2016 in Gratuity Appeal No.115 of 2015, (Annexure' A' Colly.), as they being exfacie illegal, unjust, improper, without considering the facts and evidence on record and without application of mind, in the interest of justice.”
3. The petitioner is aggrieved by the orders passed by the Adjudicating Authority (order dated 27.2.2015 in Case No.609 of 2013) and the Appellate Authority (order dated 21.1.2016 in Appeal No.115 of 2015) and Reviewing Authority (order dated 3.6.2016 in Application No.30 of 2016) under the Payment of Gratuity Act, 1972 ('the Gratuity Act' for short).
4. The grievance and claim of the petitioner is, essentially, for interest at statutory rate in respect of the delay caused in payment of total/maximum gratuity payable under and in accordance with the Gratuity Act.
5. So far as the factual background is concerned, it has emerged from the record and from the submissions by learned advocates that:
5.1 The petitioner herein joined the service with the respondent corporation in January 1979. She retired from the service, on superannuation, in October 2013 after rendering continuous service for about 34 years.
5.2 At the time when the petitioner retired from service, she was working with Vyayam Vidyalaya established, run and manged by the corporation and her last drawn salary was Rs.1916.80.
5.3 At this stage, it is relevant and necessary to mention that before the date on which the petitioner reached age for superannuation and retired from the service, the respondent corporation had issued a charge-sheet which was served to the petitioner in June 2013.
5.4 In pursuance of the said charge-sheet, domestic enquiry was initiated.
5.5 Before the said domestic enquiry could be completed, the petitioner reached age of superannuation on 30.9.2013, since domestic enquiry could not be completed before the petitioner, retired on superannuation, the respondent, on said ground, did not pay gratuity.
5.6 On 5.9.2013, the respondent corporation informed the petitioner that gratuity and pension shall be withheld in view of pending domestic enquiry.
5.7 Subsequently the Enquiry officer concluded the enquiry somewhere in May/June 2014 and in his report/finding, the Enquiry Officer held that the charge and allegations against the delinquent employee (present petitioner) are proved.
5.8 Having regard to the finding and report of the Enquiry Officer, the Competent Authority passed order dated 25.6.2014 and imposed penalty of cut/deduction @ Rs.100 from basic pension, for one year.
5.9 The said order of penalty has not been challenged by the petitioner and it has, undisputedly, attained finality.
5.10 During the said period, i.e. from 30.9.2013/1.10.2013 (the date when the petitioner retired from service on superannuation) to 25.6.2015 (i.e. till the date of order of penalty), the respondent corporation withheld and did not pay to the petitioner any amount towards gratuity and pension.
5.11 It is not in dispute that the respondent corporation paid gratuity to the petitioner on 17.7.2014 i.e. about one month after the Disciplinary Authority passed order imposing penalty and almost 9 to 10 months after the petitioner retired from service on superannua
