Allahabad High Court

U.P. Forest Corporation Lko. Thru. ... vs Jitendra Kandwal on 10 March, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 
Neutral Citation No. - 2025:AHC-LKO:14315-DB
 
Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 97 of 2025
 

 
Appellant :- U.P. Forest Corporation Lko. Thru. Managing Director And 2 Others
 
Respondent :- Jitendra Kandwal
 
Counsel for Appellant :- Rishabh Tripathi
 
Counsel for Respondent :- Alok Singh
 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Subhash Vidyarthi,J.

Application for condonation of delay (C. M. Application No. 1 of 2025)

(1) Heard Sri Rishabh Tripathi, learned counsel for the appellants and Sri Alok Singh, learned counsel for the sole respondents.

(2) The appeal is filed beyond time by 70 days.

(3) As the cause shown in the affidavit filed in support of an application for condonation of delay is sufficient, the application for condonation of delay is allowed and the delay in filing the appeal is condoned.

Order on Appeal

(4) By means of the instant intra-Court Appeal filed under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, the appellants have challenged the validity of a judgment and order dated 08.11.2024 passed in Writ-A No. 6187 of 2024, whereby the writ petition filed by the respondent seeking a direction for payment of interest for delayed payment of gratuity was allowed and the appellants were directed to pay interest as per the rate prescribed under Section 7(3) of the Payment of Gratuity Act, 1972 [here-in-after referred to as the 'Act'] for the period from 01.02.2020 till 03.11.2020.

(5) While assailing the aforesaid judgment and order, learned Counsel for the appellants has submitted that Section 7 (1) of the Act provides that a person who is eligible for payment of gratuity under this Act shall send a written application to the employer within such time and in such form as may be prescribed for payment of gratuity. He has submitted that submission of an application for payment of gratuity is a condition precedent for entitlement of the employee to claim gratuity. As the respondent had failed to file such an application the appellants cannot be held guilty for delay in payment of gratuity to the respondent.

(6) Learned counsel for the appellants has also drawn attention of the Court towards the proviso appended to Section 7 (3) which provides that no interest shall be payable if the delay in payment is due to the fault of the employee.

(7) We have considered the aforesaid submissions of the learned counsel for the appellants.

(8) For a proper appreciation of any statutory provision, the same should be read as a whole and any passage therefrom cannot be picked up and applied in isolation without reading the entire provision. Section 7 of the Act has been referred to by the Writ Court and the same is being reproduced hereunder for ready reference:-

"Section: 7

Determination of the amount of gratuity.

(1) A person who is eligible for payment of gratuity under this Act or any person authorised, 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 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.

(3A) 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.]

(4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.]

(c)] The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.]

(d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.

(e) As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit - (i) to the applicant where he is the employee; or (ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or] heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.

(5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely : (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents, (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses.

(6) Any inquiry under this section shall be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code, 1860 (45 of 1860).

(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:

Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.

Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate authority such amount.]

(8) The appropriate Government or the appellate authority, as the case may be, may, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority."

(9) A bare perusal of the aforesaid statutory provision makes it clear that the employer is liable to make payment of gratuity within 30 days from the date on which it becomes payable, whether an application referred to in Sub-Section 7(1) has been made or not. Therefore, mere non-submission of an application by the respondent would not absolve the appellants from their liability to make payment of gratuity to the respondent within time. As the gratuity was not paid to the respondent in time, the appellants became liable for payment of interest for the period of delay in payment of gratuity to the respondent as per the provision contained in Section 7 (3-A) of the Act.

(10) The appellants could have been absolved from liability to make payment of interest on delayed payment of gratuity in case the delay in payment was due to any fault of the respondent.

(11) Learned counsel for the appellants has submitted that the period of delay was attributable to imposition of lock-down due to Pandemic - 2019. This ground by no stretch of imagination be attributed to the respondent. Therefore, the appellants cannot be absolved from their liability to make payment of interest to the respondent on this ground also.

(12) Keeping in view the aforesaid circumstances, we are in complete agreement with the view taken by the Writ Court holding that the appellants are liable to make payment for interest for delay in payment of gratuity to the respondent.