Calcutta High Court (Appellete Side)
Ira Sarkar vs The Durgapur Projects Limited & ... on 9 August, 2021
39
09.08.2021
Ct. No.23
pg.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WPA 11816 of 2021
Ira Sarkar
Vs.
The Durgapur Projects Limited & Ors.
Mr. Siddhartha Sarkar
Mr. Hirak Roy
... For the petitioner
Mr. Sujit Shankar Koley
Mr. S.R. Saha
... For the respondents
The husband of the petitioner was an employee in
Durgapur Projects Limited (in short "DPL"), the respondent
no.1. The petitioner's husband retired from service on 31st
January, 2014. The husband of the petitioner on his
retirement was entitled to payment of gratuity and an
amount on account of leave salary aggregating to
Rs.11,34,602/-. This figure is not in dispute. The
petitioner's husband was paid this amount on 16th August,
2014. The date of payment is also not in dispute. The
petitioner says that there has been a delay of about 7
months in making of the said sum of Rs.11,34,602/- on
account of gratuity and leave salary. The husband of the
petitioner, therefor, is entitled to interest for delayed
payment of gratuity as per the provisions of Section 7(3A)
of the Payment of Gratuity Act, 1972 (hereinafter referred
to as the "said Act") and interest on the same rate on leave
salary since the same is part of the retiral benefits. The
petitioner, being a legal heir of the deceased employee,
claims to be entitled to the benefits available to the
deceased employee.
The respondents say that the delay in payment was
not intentional but due to the financial stringency of the
DPL.
The financial stringency on the part of the
employer (respondent no.1) cannot be a ground in delaying
the payment of retiral benefits to a retired employee of the
respondent no.1 which becomes due and payable
immediately upon the retirement of the said employee.
Section 7(3A) of the said Act provides for payment of
interest for delay in paying the amount on account of
gratuity which as per the last circular is at the rate of 10
per cent per annum. This is as such the statutory rate.
The respondents say that the rate on account of
delayed payment has been considered by the Division
Bench of this Court as also by the Hon'ble Supreme Court.
The respondents have relied upon a judgment and
order of a Division Bench of this Court passed on 11th
March, 2020 in MAT 108 of 2020 with CAN 1249 of 2020
with CAN 1250 of 2020 (Krishna Prosad Chatterjee v. The
Durgapur Projects Limited & Ors.). It appears from the
said judgment and order that by the order impugned
therein, the learned Single Judge while disposing of the
writ petition had allowed interest on delayed payment of
gratuity and leave salary at the rate of 5 per cent per
annum by an order dated 15th November, 2019.
In the case before the Division Bench, the employee
of DPL must have retired prior to 15th November, 2019
being the date of the order of the learned Single Judge and
there was a delay in paying him the gratuity and the
amount on account of leave salary. The Division Bench
after taking note of the facts allowed 7 per cent interest on
gratuity from the date of accrual till the date of actual
payment. So far as the leave salary is concerned, the
Division Bench directed payment of the same within six
weeks from the date of the order passed by the Division
Bench and if the same was paid within such time frame,
the amount on account of leave salary will not attract any
interest.
I am told that the issue as to payment of leave
salary is pending before the Hon'ble Supreme Court at the
instance of Krishna Prosad Chatterjee, the employee, as no
interest was allowed by the judgment and order of the
Division Bench dated 11th March, 2020 on the sum being
paid within the time frame.
On a perusal of a judgment of the Hon'ble Supreme
Court reported in 2021 SCC Online SC 237 = 2021 (3)
SCALE 42 (The State of Andhra Pradesh & Anr. v. Smt.
Dinavahi Lakshmi Kameswari) relied upon by the
respondents, it appears that the Hon'ble Supreme Court
was considering the issue of deferred salary and pension
during the pandemic for which the Andhra Pradesh High
Court had directed payment of interest at the rate of 12
per cent per annum. The Supreme Court taking note of the
pandemic situation reduced the rate of interest from 12
per cent to 6 per cent both in case of deferred salary as
also in the case of deferred payment of pension.
This judgment, so far as deferred payment of salary
does not apply to the instant case but so far as it relates to
deferred payment of pension, it has some application as
retiral benefits and pensionery benefit are either
interlinked or the same. Even the issue of deferred
payment of pension in the case before the Hon'ble
Supreme Court does not match with the facts of the
instant case where retiral benefits fell due on 1st February,
2014 i.e., much before 31st March, 2020 when the first
circular was issued by the Andhra Pradesh Government
owing to the pandemic.
The respondents have also referred to few orders
passed by different learned Judges of this Court sitting
singly. In one of such orders passed on 22nd June, 2021 in
WPA 10092 of 2021 (Ajit Kumar Chakraborty v. The
Durgapur Projects Limited & Ors.), a learned Single Judge
after considering the judgment of the Hon'ble Supreme
Court of India reported in (2008) 3 SCC 44 (S.K. Dua v.
State of Haryana & Anr.) which held that an employee has
a right under Articles 14, 19 and 21 of the Constitution of
India to claim interest on delayed payment of retirement
benefits and the judgment of the Hon'ble Supreme Court
in Smt. Dinavahi Lakshmi Kameswari (supra) and the
Division Bench judgment of this Court in Krishna Prosad
Chatterjee (supra) allowed 6 per cent interest on delayed
payment of gratuity and leave salary by agreeing with
another Single Bench judgment dated 16th April, 2021
passed on WPA 9030 of 2021.
The fact remains that the petitioner's husband was
deprived of his dues and DPL having not paid the same in
time had derived benefit out of such money. The
respondents, therefor, is liable to compensate the
petitioner's husband for the delay in making payment of
his retiral benefits by paying interest on the principal sum
for the delayed period. This is also statutorily approved.
Even delay in approaching the Court for grant of interest
on gratuity and other retiral benefits has been held by the
Hon'ble Supreme Court to be not fatal in Union of India v.
Tarmen Singh reported in (2008) 8 SCC 648.
Considering the judgment in Smt. Dinavahi
Lakshmi Kameswari (supra), Krishna Prosad Chatterjee
(supra) and the orders of the learned Single Judge referred
to above, an acceptable formula can be culled out by
consent of the parties. The petitioner agrees to receive
interest on account of delayed payment of gratuity and
leave salary at the rate of 6 per cent per annum and the
respondents agree to pay such interest both on account of
delayed payment of gratuity and leave salary. The
respondents also undertake to pay the interest on account
of delayed payment of gratuity and leave salary from 1st
February, 2014 being the date of accrual till 16th August,
2014, being the date of actual payment at the rate of 6 per
cent per annum within six weeks from date.
On the basis of such consensus, the respondent
no.1 is directed to pay interest to the writ petitioner at the
rate of 6 per cent per annum on Rs.11,34,602/- being the
amount on account of gratuity and leave salary calculated
on and from 1st February, 2014 till 16th August, 2014
within a period of six weeks from the date of
communication of a photostat certified copy of this order
and in default statutory rate of 10 per cent will be
attracted on the entire amount from 1st February, 2014 to
16th August, 2014.
Nothing further remains to be adjudicated in this
writ petition. The same is disposed of accordingly without
any order as to costs.
Since I have not called for any affidavits,
allegations made in the writ petition are deemed to have
not been admitted by the respondents.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Arindam Mukherjee, J.)
