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2019 Supreme(All) 2585
IN THE HIGH COURT OF ALLAHABAD
Vivek Kumar Birla, J.
Smt. Dulari Devi – Petitioner
Versus
State of U.P. and Others – Respondents
Writ - A No. 71478 of 2013
Decided On : 20-09-2019
Advocate Appeared:
For the Petitioner: C.M. Yadav, Siddharth Khare, Yatindra
Point of law: Exception created by the proviso under sub-section (3-A) of Section 7 of the Gratuity Act and two ingredients were specifically noted and it has been clearly observed that the interest is payable only if there is delay on the part of the employer and if the delay is on the part of the employee himself no such interest shall be payable.
Headnote:
Payment of Gratuity Act, 1972 – Sections 7 (3-A), 3 (3-A) – Gratuity– Claim of – Whether can be granted - case of the petitioner is covered by proviso 2, sub-section 3 (3-A) of Section 7 of the Gratuity Act as interpreted by Hon'ble Apex Court in paragraph 18 of the aforesaid judgment and the petitioner is not entitled for interest on delayed payment of gratuity.
Facts of the case:
The petition, wherein this application has been filed, was filed seeking quashing of the impugned order passed by the respondent no. 2 filed as Annexure-1 to the writ petition – A further prayer was made in the nature of mandamus commanding the respondents to forthwith pay amount of gratuity along with interest to the petitioner for which she is legally entitled as her husband was an Assistant Teacher in substantive capacity in the institution namely Sarva Hitaishi Inter College, Masida, district Jaunpur.
Finding of the court: –
she put forth her claim of family pension which was granted to her – It appears from the record that for the first time petitioner came forward for the claim of gratuity in the – Therefore, it is clear that she was conscious of the fact regarding making claim for any retiral dues – More over, there is no dispute about the fact that during his life time the employee has not exercised his option and gratuity to the claimant widow was granted because of the judgment of this Court raising a presumption that employee could have exercised his option before his retirement had he been alive – Although, even there is some delay in filing the application however, taking a lenient view of the matter, the delay in filing the modification application is condoned .
Result: – Order Accordingly
JUDGMENT :
Re: Civil Misc Modification Application No. 10 of 2019
1. Heard Sri Siddharth Khare, learned counsel appearing for the petitioner-applicant.
2. The petition, wherein this application has been filed, was filed seeking quashing of the impugned order dated 8.11.2011 passed by the respondent no. 2 filed as Annexure-1 to the writ petition. A further prayer was made in the nature of mandamus commanding the respondents to forthwith pay amount of gratuity along with interest to the petitioner for which she is legally entitled as her husband was an Assistant Teacher in substantive capacity in the institution namely Sarva Hitaishi Inter College, Masida, district Jaunpur.
3. Placing reliance on the judgment of Hon'ble Division Bench in the case of Angoori Devi Vs. Regional Joint Director of Education, Agra Region and others 2012 (1) ADJ 720 (paragraph 15 and 16), the petition was allowed.
4. The impugned order for rejecting the claim of the petitioner for grant of gratuity was quashed and petition was allowed in terms of paragraph 16 of the judgment in Angoori Devi (supra). The respondents were directed to pay the gratuity amount to the applicant/petitioner preferably, within a period of three months from the date of production of a certified copy of the order. Admittedly, the interest was not granted in favour of the petitioner.
5. The petitioner filed Special Appeal Defective No. 299 of 2018 which was dismissed vide judgment dated 8.11.2019 with liberty to appellant to take recourse to any other legal remedy that may be open to her in law. Taking cue from the aforesaid observation made in the Special Appellate Court judgment, the present modification application claiming interest on delay payment of gratuity has been filed. The modification application itself was filed with some delay in April, 2019.
6. Submission of learned counsel for the petitioner is that the Special Appeal was dismissed with liberty to appellant to take recourse to any other legal remedy that may be open to her in law and, therefore, the present modification application is maintainable. He further submits that since the claim of the petitioner for grant of gratuity has been allowed and there was a delay on the part of the employer and not on the part of the petitioner/claimant (widow of the deceased employee), therefore, the petitioner is entitled for interest on late disbursal of gratuity.
7. The petitioner made a representation for grant of interest before the authority concerned, however, her claim was rejected by an order dated 8.5.2018 on the ground that there is no direction by this Court for grant of interest. A copy of the order dated 8.5.2018 is annexed with the modification application.
8. Learned counsel further submits that in view of the government order dated 15.7.1997, the petitioner is entitled for interest at the rate of Rs. 12% per annum on late disbursal of gratuity. He has drawn attention to the provisions of Section 7 (3-A) of the Payment of Gratuity Act, 1972 in support of his submission that the employee (the widow claimant herein) is entitled for interest. In support of his argument learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Apex Court in case of Y.K. Singla Vs. Pujab National Bank and others (2013) 3 SCC; whereof paragraph 17 of the said judgment is quoted as under:-
"For the determination of the present controversy, it is also relevant to take into consideration section 7 of the Gratuity Act, which is being extracted hereunder:-
"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.
(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
