Bombay High Court
Shri Najukrao S/O Ramchandra ... vs The State Of Maharashtra Through ... on 16 March, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.271/2013
PETITIONERS: 1. Shri Najukrao s/o Ramchandra Palaspagar,
Aged 60 yrs., Occupation : Pensioner,
R/o New Sankalp Colony, Akot,
Tahsil Akot, District Akola.
2. Sakhawat Ali Ehsan Ali,
Aged 60 yrs., Occupation : Pensioner
r/o Afzal Bagh, Behind Urdu High
School, Anjangaon Road, Akot,
Tahsil Akot, District Akola.
3. Syed Rajik Ali Syed Rauf,
Aged 59 yrs., Occupation : Pensioner,
R/o Bramhanwala Plot, Akot, Tahsil
Akot, District Akola.
4. Yusuf Kha Daud Kha,
aged 59 yrs., Aged 60 yrs., Occupation :
Pensioner, r/o Khatibpura, Akot, Tahsil
Akot, District Akola.
5. Arun s/o Gopalrao Bonde,
Aged 60 yrs., Occupation : Pensioner,
r/o Near Asra Colony, Akot, Tahsil Akot,
District Akola.
6. Ratnakar Onkarsa Takwale,
Aged 62 yrs., Occupation : Pensioner,
r/o Yatra Chowk, Akot, Tahsil Akot,
District Akola.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through its
Secretary of Urban Development
Department, Mantralaya, Mumbai - 32.
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2. The Municipal Council, Akot, through its
Chief Officer, Akot, Tahsil Akot,
District Akola.
3. The President, Municipal Council,
Akot, Tahsil Akot, District Akola.
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Shri Gahilot, Advocate for petitioners
Shri A.S. Fulzele, Addl. G.P. for respondent no.1
Shri A.J. Thakkar, Advocate for respondent nos.2 and 3
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CORAM : SMT. VASANTI A NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 16.03.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioners have sought a direction
against the respondents to pay the retiral benefits of gratuity,
commutation of pension and other retiral benefits to the petitioners with
interest from the date of retirement till the actual payment of the amount.
After the writ petition was filed, the respondents had paid
the benefits that were due and payable to the petitioners. However, since
the petitioners claimed interest on the delayed payment, the writ petition
was admitted only on the issue of interest on belated payment.
The learned Counsel for the petitioners submits that it was
necessary for the respondents to pay interest on the delayed payment of
gratuity. The learned Counsel relied on the provisions of Section 7 (3-A)
of the Payment of Gratuity Act, 1972 to substantiate his submission that if
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gratuity is not paid by the employer as and when it becomes payable to
the employee, the employer would be liable to pay simple interest on the
delayed payment not exceeding the rate notified by the Central
Government from time to time for repayment of long term deposits. It is
stated by relying on the judgment of the Hon'ble Supreme Court, reported
in (2003) 3 Supreme Court Cases 40 that the provisions of Section 7
(3-A) of the Act are mandatory and interest would be payable, if the delay
is not due to the fault of the employee. It is submitted that the petitioners
were making representations to the respondent - Municipal Council and
hence, the delay was not due to the fault on the part of the petitioners.
Shri Thakkar, the learned Counsel for the Municipal Council
submitted that the Municipal Council is facing huge financial crunch and
even the salaries of the employees that are in service are not paid
regularly. It is stated that the petitioners had not submitted an application
for payment of gratuity within 30 days from the date when the gratuity
became payable, in Form-T to the respondent - Municipal Council. It is
submitted that as per Rule 7 of the Payment of Gratuity (Maharashtra)
Rules, 1972, it would be necessary for an employee to apply for gratuity
in Form-T before 30 days of the date of superannuation or retirement. It is
stated that as per Rule 7 (5) of the Rules, an application for payment of
gratuity could be entertained by an employer only if the applicant
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adduces sufficient cause for the delay in preferring his claim. It is stated
that any dispute in regard to the acceptance or rejection of an application,
that is, belatedly filed, is liable to be referred to the Controlling Authority
for a decision. It is submitted that in the circumstances of the case, it
cannot be said that the delay in this case was not due to the fault on the
part of the petitioners. It is stated that a common representation is made
by all the petitioners on 6.10.2012. It is submitted that in view of Rule 7
of the Rules and the fact that the petitioners were also at fault, no liability
to pay the interest could be fastened on the Municipal Council.
In view of the aforesaid disputed questions of facts, we are
not inclined to direct the respondent - Municipal Council to pay interest
to the petitioners on the delayed payment of gratuity. On a perusal of
Rule 7 of the Rules, it appears that an employee is required to make an
application in Form - T to the employer for payment of gratuity. The
petitioners have not challenged the said Rule. There is no averment in the
petition that the delay in payment of gratuity is not caused due to the
fault on the part of the petitioners. There is no averment that there is no
fault on the part of the petitioners. There is nothing in the petition to
show that the petitioners did apply in Form-T for payment of gratuity.
Also, it appears from the Government Resolution dated 13.6.2012 that the
local bodies, like the respondent - Municipal Council, are required to
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maintain the list of retired employees as per the date of their retirement
and pay retiral benefits to them after considering their date of retirement,
i.e., the employee who retires first should be first paid the benefits. Since
it is not the case of the petitioners that the delay was not on their part and
they had done the needful as per law to secure the gratuity at the earliest,
it would not be proper to direct the respondent - Municipal Council to
grant the interest on the delayed payment of gratuity to the petitioners.
Since the other relief sought by the petitioners stands already granted, in
view of the payment made by the Municipal Council to the petitioners, the
writ petition is liable to be disposed of.
Hence, we dispose of the writ petition with no order as to
costs. Rule stands discharged.
JUDGE JUDGE
Wadkar
