IMPORTANT POINT
Gratuity cannot be withheld without proper legal proceedings as per Section 4(6) of the Payment of Gratuity Act, 1972.

JUDGMENT :

Heard learned counsel for the appellants, Sri Alok Mishra learned counsel who has put in appearance on behalf of the respondent No. 1/petitioner. Respondent Nos. 2 and 3 are the proforma parties.

2. The intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 is directed against the order dated 22.9.2023 passed in Writ-A No. 6409 of 2023, whereby the writ petition filed by the respondent/petitioner has been allowed with certain directions as well as the order dated 28.11.2023 passed in Civil Misc. Review Application No. 239 (D) of 2023 whereby the review petition filed by the department has been allowed negatively. The aforesaid writ petition was firstly decided on 22.9.2023 and while allowing the writ petition, the writ Court in paragraph Nos. 6 to 8 issued the following directions :

''6. Impugned order dated 10.5.2023 is quashed.

7. Respondents are directed to pay the entire dues, including the gratuity and leave encashment withheld vide impugned order dated 10.5.2023, to the petitioner within a period of three months.

8. The petitioner shall also be entitled to interest at the rate of 7% per annum from 30th day of retirement till actual payment/realization on the unpaid amounts''.

3. The appellants herein feeling aggrieved chose to file an intra-Court appeal arising out of the writ Court's order passed on 22.9.2023 and the same being registered as Special Appeal No. 502 of 2023 was disposed of on 28.10.2023 in terms of the following order :

''1. Learned counsel for the appellant submits that ends of justice would be served if the appellant is permitted to file review application before the same Bench.

2. In view of above, the appeal is, accordingly, disposed of permitting the appellant to file appropriate application before the writ Court''.

4. It appears that the order dated 21.9.2023 which obstructed the release of retiral dues was already placed on record along-with the counter-affidavit but the same had escaped attention of the writ Court while issuing the directions extracted above. This anomaly led the appellants (employer) to invoke the remedy of filing the review application for which permission was granted by order dated 28.10.2023 mentioned above.

5. It is in this backdrop that the review application was filed by the appellants to put-forth the entire explanation so as to justify the impediments coming in the way of release of the entire post-retiral dues admissible to the respondent No. 1(employee).

6. The option to pursue the course of review might have been opted looking to the prayer set-out in the writ petition wherein nothing, except the order dated 10.5.2023, was assailed, therefore, the directions issued by the Writ Court were understood to have been issued beyond the scope of relief. The review application instituted by the appellants was registered as Civil Miscellaneous Review Application Defective No. 239 of 2023. The writ Court after hearing the parties allowed the delay condonation application and proceeded to consider on merit the review application on the same day. In paragraph 11 of the order dated 28.11.2023, the Court allowed the review application. But to the utter surprise, in the preceding paragraph, the writ Court proceeded to set aside the order dated 21.9.2023 apart from the order dated 10.5.2023 which was already set aside. The operative part of the order passed on review application reads as under :

''10. Considering the submissions made at the bar, in the judgment dated 22.9.2023, this Court was of the view that unless the proceedings as contemplated under Section 4(6) of the Act are initiated merely on the basis of audit objection, the retiral dues including the gratuity cannot be withhold and the same is in violation of the provisions of Article 300-A of the Constitution of India. Even the subsequent order dated 21.9.2023 is based upon the audit objection. As no proceedings have been initiated, which can be deciphered in the order dated 21.9.2023, the analogy on