Bombay High Court
The Sub-Area Manager, Ballarpur ... vs Appellate Auth. Under Payment Of ... on 14 December, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2023:BHC-NAG:17237
53wp5150.2023..
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5150 OF 2023
(The sub-area Manager, Ballarpur, Chandrapur....Vs... Appellate Authority under
Payment of Gratuity Act & Dy Chief Labour commissioner, Nagpur and others)
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Mr. P.V. Ghare, counsel for petitioner.
Mr. R. Joshi, counsel for respondent No. 3.
CORAM : AVINASH G. GHAROTE, J.
DATE : 14-12-2023
This petition questions the order of the
controlling authority dated 29.7.2022 (page 61) under
the Payment of Gratuity Act, 1972 whereby the claim of
the respondent No. 3 for gratuity and interest has been
allowed (page 66), the appeal against which has been
dismissed by the order dated 9.3.2023 (page 78).
2. It is not in dispute, that originally the date
of birth of the respondent No. 3 as recorded in his
Service Book was 3.5.1953, 4.8.1955 and 4.8.1958,
according to which, the respondent No. 3 was to retire
on 31.5.2013. The respondent No. 3 claimed that the
correct date of birth was 4.8.1958, according to which,
he was supposed to retire on 31.8.2018.
3. The respondent No. 3 therefore, filed
Regular Civil Suit No. 12/2013, claiming that 4.8.1958
53wp5150.2023..
was his correct date of birth, and sought a decree in
that regard, which came to be so passed by the learned
Civil Judge on 18.9.2015. An appeal there-against,
being Regular Civil Appeal No. 135/2015 filed by the
present petitioner came to be dismissed by the
judgment and order dated 23.12.2016, against which
Second Appeal no. 327/2018 is claimed to have been
filed, which has been admitted on 17.10.2019,
however, no stay has been granted therein.
4. Mr. Ghare, learned counsel for the
petitioner, contends that in view of the admission of the
Second Appeal, the claim of the respondent No. 3, is
still in litigation, and therefore, he is not entitled to the
gratuity and interest thereof till 31.8.2018. He has no
objection if the gratuity and interest till 31.5.2013 is
paid to the respondent No. 3. It is also his contention
that in case, the entire gratuity and interest is paid then
respondent No. 3 be directed to give a security.
5. Mr. Rohit Joshi, learned counsel for
respondent No. 3 supports the impugned orders.
6. It cannot be disputed, that the Civil Court
has rendered a finding that date of birth of respondent
No. 3 is 4.8.1958 which finding has been confirmed by
the First Appellate Court. Merely because the Second
Appeal has been admitted, without any stay obtained
53wp5150.2023..
therein to the declaration regarding the date of birth of
respondent No. 3, he cannot be deprived of the benefits
which are available to him on account of the gratuity
and interest payable to him taking his date of birth as
4.8.1958 as a declaration made in this regard, still
holds the field. That apart, it is not disputed that the
respondent No. 3 has indeed rendered his services till
31.8.2018, may be under the orders of this Court. In
that view of the matter, I do not see any reason to
interfere in the impugned orders. The petition is
therefore, dismissed. No costs. The payment of
gratuity to the respondent No. 3 would be subject to
the result of the Second Appeal.
[AVINASH G. GHAROTE, J]
Belkhede
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 15/12/2023 16:29:05
