Nanuram Mohanlal Varma vs Divisional Controller, ...
2021 Latest Caselaw 9099 Bom

     LPA 248-08                                      1                          Judgment

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL N0.248/2008 IN C.A. NO.4645/2007 AND 7776/2007
                                       IN
                         WRIT PETITION NO. 4319/2001 (D)

     Nanuram Mohanlal Varma,
     age 66, Ex.Clerk, MSRTC, Divisional Office, Akola,
     R/o Shanta Sadan, Asra Colony, Near Tukaram
     Hospital Chowk, Akola, Tq. & Dist. Akola.                             APPELLANT
                                       .....VERSUS.....
     1.    Divisional Controller, M.S.R.T.C., Akola Division,
           Divisional Office, Kaulkhed Road, Akola,
           Tq. & Dist. Akola.
     2.    Member, Industrial Court, Akola,
           Shrikant Market, A.P.M.C. Road, Akola.
     3.    Judge, Labour Court, Akola,
           Shrikant Market, A.P.M.C. Road, Akola.                       RESPONDENTS

                          Shri P.N. Verma, counsel for the appellant.
                     Shri S.C. Mehadia, counsel for the respondent no.1.

     CORAM : A. S. CHANDURKAR AND G.A. SANAP, JJ.

     DATE      : 13TH      JULY, 2021.
     ORAL JUDGMENT              (PER : A.S. CHANDURKAR, J.)

In this letters patent appeal, the order dated 18.03.2008

passed on C.A. No.4645 of 2007 in Writ Petition No.4319 of 2001 is

under challenge. By the said order, the appellant was directed to deposit

an amount of Rs.1,91,076/- with interest at the rate of 6% per annum

from the date the amount was withdrawn from the Labour Court. The

amount was to be deposited within a period of six weeks from the date of

the order and such deposit was made subject to final outcome of the

recovery application that was filed by the appellant in proceedings under

Section 33C-2 of the Industrial Disputes Act, 1947.

LPA 248-08 2 Judgment

2. The relevant facts are that the appellant was engaged as a

Clerk with the respondent-Corporation and he came to be dismissed from

service on 28.02.1990. The appellant preferred a complaint before the

Labour Court challenging the order of dismissal. During pendency of the

said complaint, the appellant attained the age of superannuation on

31.05.2000. The Labour Court on 05.12.2000 allowed the complaint and

directed appellant's reinstatement and also granted him back wages. This

order was challenged by the respondent-Corporation before the Industrial

Court which by its order dated 11.10.2001 allowed the revision

application and after setting aside the order passed by the Labour Court

remanded the proceedings for fresh adjudication. This order of the

Industrial Court was challenged by the appellant by filing Writ Petition

No.4319 of 2001. In the said writ petition on 13.03.2002 this Court

directed the respondent to deposit the entire amount of back wages that

had been awarded by the Labour Court by its judgment dated

05.12.2000. This interim direction was challenged by the respondent by

filing a letters patent appeal which came to be subsequently dismissed.

Consequently, the respondent deposited a total amount of Rs.12,42,282/-

in this Court in compliance with the order dated 13.03.2002.

3. During pendency of the aforesaid writ petition, the Labour

Court on remand allowed the complaint preferred by the appellant and

LPA 248-08 3 Judgment

directed reinstatement of the appellant till the age of superannuation and

also directed payment of back wages. On 13.02.2007, Writ Petition

No.4319 of 2001 was dismissed by the learned Single Judge as it was

rendered infructuous with passage of time. A direction was issued to

transfer the amount that had been deposited by the respondent in this

Court to the Labour Court and the appellant was granted liberty to apply

for its withdrawal. The order dated 13.02.2007 was however reviewed

and the appellant was permitted to unconditionally withdraw the balance

amount lying in deposit. In terms thereof, the appellant withdrew the

amount of Rs.12,42,282/-.

In the meanwhile, the appellant initiated proceedings before

the Controlling Authority under the Payment of Gratuity Act, 1972

seeking grant of amount of gratuity. On 14.09.2004, the Controlling

Authority directed the respondent to pay an amount of Rs.1,97,444/-

with interest at the rate of 10% per annum. This order of the Controlling

Authority was modified in the statutory appeal preferred by the appellant.

On 26.05.2005, the Appellate Authority held the appellant entitled to an

amount of Rs.1,94,444/- with interest at the rate of 10% per annum from

01.06.2000 till realization. After dismissal of this appeal, the appellant

was paid an amount of Rs.2,03,812/- which included an amount of

Rs.6368/- that was deposited by the respondent on 11.01.2005 and

Rs.1,97,444/- deposited on 06.04.2005.

LPA 248-08 4 Judgment

4. Since according to the respondent the appellant had

withdrawn an amount of Rs.12,42,282/- which included an amount of

Rs.1,91,076/- as gratuity, the appellant was not entitled to be paid

gratuity again. On 06.08.2005, the appellant had also received

Rs.2,03,812/- towards gratuity. On that basis the respondent filed Civil

Application No.4645 of 2007 in which it was prayed that the appellant be

directed to re-deposit an amount of Rs.1,91,076/- with accrued interest

being the excess amount of gratuity received by him. This application

was opposed by the appellant by filing reply and by the order dated

18.03.2008 the learned Single Judge directed the appellant to re-deposit

the amount of Rs.1,91,076/- with interest at the rate of 6% per annum.

It is this order that is the subject matter of challenge in the present letters

patent appeal.

5. We have heard the learned counsel for the parties and we

have also perused the records of Writ Petition No.4319 of 2001. By the

order dated 15.02.2021, the parties were directed to place on record their

respective calculations with regard to the entitlement of the appellant to

the amount of gratuity. Accordingly the appellant has filed pursis dated

23.02.2021 in which it has been stated that it is the appellant who is

entitled to receive the amount of interest on 91,092/- from the

respondent on the amount of gratuity. The respondent in its pursis dated

LPA 248-08 5 Judgment

27.02.2021 has stated that it is entitled to receive amount of

Rs.1,91,076/- with interest from the appellant. The order dated

18.03.2008 directs the appellant to deposit the aforesaid amount subject

to final outcome of Recovery Application No.1 of 2004. It is undisputed

that the said recovery application was finally decided on 26.09.2016 by

the learned Judge of the Labour Court and the appellant had been held

entitled to various amounts on account of Provident Fund, Medical

Allowance and other emoluments. The respondent in its pursis has stated

that the amounts directed to be paid in Recovery Application No.1 of

2004 have been fully paid to the appellant. This aspect is not disputed by

the appellant.

6. In the order dated 18.03.2008 the learned Single Judge has

referred to the averments made by the appellant in Civil Application

No.130 of 2003 (wrongly referred to as Civil Application No.1303 of

2003 in the order). In paragraph 3 of that civil application, the appellant

had stated that the amount of Rs.12,42,282/- included an amount of

Rs.1,74,000/- towards gratuity. After noting the fact that the appellant

had withdrawn Rs.2,03,812/- towards gratuity the direction impugned

came to be issued. The break-up of the amount of Rs.12,42,282/- has

been given by the respondent and it includes amount of Rs.1,91,076/-

towards gratuity. It is thus clear that as regards the direction to repay the

LPA 248-08 6 Judgment

amount of gratuity on the ground that the same was already received by

the appellant the same does not call for any interference.

7. Coming to the calculation of the amount of interest to

which the appellant has been held entitled by the Appellate Authority in

its order dated 26.05.2005, it may be noted that the amount of

Rs.1,94,444/- was directed to be paid with interest at the rate of

10% per annum from 01.06.2000 till realization. Interest at the rate of

10% per annum would be Rs.19,444/- for one year. For the period of

five years from 01.06.2000 to 31.05.2005, the amount of interest

would be Rs.19,444/- X 5 = Rs.97,220/-. Interest for the period

from 01.06.2005 to 31.07.2005 would be Rs.3241/- and for 6 days

of August-2005 would be Rs.320. The total amount of interest

from 01.06.2000 to 06.08.2005 would be Rs.1,00,781/-. Adding

this amount of interest to the amount of gratuity would give a total

sum of Rs.2,95,225/-. The appellant withdrew the amount of

Rs.2,03,812/- that was deposited by the employer with the

Appellate Authority. The balance amount due and receivable by the

appellant would be Rs.2,95,225/- (-) Rs.2,03,812/- which would be

Rs.91,413/-. In Writ Petition No.4319 of 2001, the respondent had

deposited a total amount of Rs.12,42,282/- out of which amount of

Rs.1,91,076/- was towards gratuity. The entire amount of

LPA 248-08 7 Judgment

Rs.12,42,282/- has already been withdrawn by the appellant. From the

amount of Rs.1,91,076/- which was directed to be repaid back to the

respondent as per the impugned order dated 18.03.2008 with interest at

the rate of 6% per annum, the amount of Rs.91,413/- which the appellant

is entitled to receive is liable to be deducted. After deducting the said

amount from Rs.1,91,076/- the balance amount would come to

Rs.99,663/-.

8. The impugned order directs repayment of the excess

amount with interest at the rate of 6% per annum. The learned counsel

for the appellant submitted that the appellant is a senior citizen and

suffering from various ailments. The direction to repay the excess

amount with interest at the rate of 6% per annum would be harsh and

hence sought waiver of the direction to pay interest on the excess

amount. This request was opposed by the learned counsel for the

respondent.

We find from the record that the appellant is a senior citizen

and there is no reason to doubt the statements made in the pursis filed on

his behalf that he is suffering from various ailments. In the facts of the

present case, we are inclined to direct repayment of the amount of

Rs.99,663/- with interest at the rate of 4% per annum in the interest of

justice.

LPA 248-08 8 Judgment

9. Hence, for the aforesaid reasons, the following order is

passed:-

(a) The order dated 18.08.2008 passed on Civil Application No.4645 of 2007 is partly modified. The appellant shall refund the amount of Rs.99,663/- with interest at the rate of 4% per annum in the manner as stated in paragraph 11 of the order dated 18.08.2008.

(b) This amount be paid to the respondent no.1 within a period of three months from today.

(c) On failure to repay the said amount with interest within a period of three months, the entire amount due then would be payable with interest at the rate of 6% per annum.

10. The letters patent appeal is allowed in aforesaid terms leaving

the parties to bear their own costs.

             (G.A. SANAP, J.)               (A.S. CHANDURKAR, J.)


APTE