Himangshu Sekhar Panda vs The Durgapur Projects Limited & ...
2021 Latest Caselaw 4148 Cal

    21
09.08.2021
 Ct. No.23
     pg.
                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

                                WPA 11430 of 2021

                            Himangshu Sekhar Panda
                                      Vs.
                       The Durgapur Projects Limited & Ors.


                    Mr. Ayan Banerjee
                    Mr. Suman Banerjee
                               ... For the petitioner

                    Mr. Sujit Shankar Koley
                    Mr. S.R. Saha
                                ... For the respondents

The petitioner was an employee in Durgapur

Projects Limited (in short "DPL"), the respondent no.1. The

petitioner retired from service on 28th February, 2019. The

petitioner on his retirement was entitled to receive gratuity

and leave salary. The petitioner received Rs.20,00,000/- on

account of gratuity but the amount on account of leave

salary has not been paid as yet, though the respondent

no.1 has issued an order on 16th January, 2021 admitting

that the petitioner is entitled to 300 days leave salary. This

is not in dispute. The petitioner was paid the amount on

account of gratuity in March, 2021. The date of payment is

also not in dispute. The petitioner says that there has been

a delay of about 24 months in making of the said sum of

Rs.20,00,000/- on account of gratuity. 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"). The petitioner is entitled to the amount on

account of leave salary for 300 days and interest on the

same rate on leave salary from the date it fell due till

actual payment since leave salary is part of the retiral

benefits.

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 March,

2019 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 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 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 order 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 the

amount on account of leave salary for 300 days with

interest at the rate of 6 per cent per annum on such

amount from 1st March, 2019 till the date of actual

payment and interest on account of delayed payment of

gratuity also at the rate of 6 per cent per annum and the

respondents agree to pay such principal sum and interest

on account of leave salary and delayed payment of

gratuity. The respondents also undertake to pay the

principal sum on account of leave salary and interest on

account of delayed payment of gratuity and leave salary

from 1st March, 2019 being the date of accrual till March,

2021, being the date of actual payment in case of gratuity

and till the date of actual payment of the principal sum on

account of leave salary for 300 days at the rate of 6 per

cent per annum within eight 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.20,00,000/- being the

amount on account of gratuity calculated on and from 1st

March, 2019 till March, 2021, the principal sum for leave

salary for 300 days with interest thereon at the rate of 6

per cent per annum from 1st March, 2019 till actual

payment of the principal sum within a period of eight

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

March, 2019 till March, 2021 in case of gratuity and from

1st March, 2019 till actual payment in case of 300 days

leave salary.

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.)