Calcutta High Court (Appellete Side)
Sri Rabindra Nath Bhattacharjee vs The Durgapur Projects Limited & ... on 20 September, 2022
10.
20-09-2022
(Ct. no.21)
FB
WPA 20178 of 2022
Sri Rabindra Nath Bhattacharjee
Vs.
The Durgapur Projects Limited & Ors.
Mr. Ayan Banerjee,
Mr. Soumo Chaudhury
... For the Petitioner.
Mr. Sujit Sankar Koley
... For the D.P.L.
Affidavit-of-service filed in Court today be kept
on record.
The petitioner was an employee in Durgapur
Projects Limited (in short 'DPL')/ the respondent no.1.
The petitioner retired from service on April 30, 2018.
The petitioner on his retirement was entitled to
payment of gratuity and leave encashment benefits
aggregating Rs. 8,77,737/-. This figure is not in
dispute. The said amount was released to the
petitioner by the respondents on December 11, 2019,
i.e., after a period of almost nineteen months from the
date of his superannuation.
Mr. Ayan Banerjee, learned Counsel, appearing
on behalf of the petitioner, submits that the writ
petitioner is, therefore, entitled to interest for delayed
payment of gratuity as per provisions of Section 7(3A)
of the Payment of Gratuity Act, 1972 (hereinafter
referred to as 'the 1972 Act') and interest on the same
rate on leave salary as the same is a part of his retiral
benefits.
Mr. Sujit Sankar Koley, learned Counsel,
appearing for the respondents, submits that the delay
in payment was not intentional, but due to financial
stringency of the DPL. He submits that the rate on
account of delayed payment has been considered by
the Division Bench of this Court and also by the
Hon'ble Supreme Court.
This Court finds that financial stringency on the
part of the employer/DPL cannot be a ground in
delaying payment of the retiral benefits of an
employee, which becomes due and payable within one
month upon his retirement.
Section 7(3A) of the 1972 Act provides for
payment of interest for delay in making payment on
account of Gratuity which is 10% per annum as per
the last circular. Such is the statutory rate.
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 inter-linked 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 1 st
September, 2017 i.e., much before 31 st 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 22 nd
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) 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, therefore, 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.
Considering the judgment in Smt. Dinavahi
Lakshmi Kameswari (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 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 are directed to pay interest on
account of delayed payment of Gratuity and Leave
Salary from May 01, 2018, being the date of accrual,
till December 11, 2019, being the date of actual
payment, at the rate of 6% peer annum within three
months from date. In the event of default such rate
will stand increased to 10% per annum being the rate
under 1972 Act.
Needless to mention, in the event there are any
dues payable by the employee to the employer, the
same shall be adjusted before disbursing of the
interest to the ex-employee.
With the directions aforesaid, the writ petition
being WPA 20178 of 2022 is disposed of.
Since no affidavits have been called for in the
writ petition, the allegations contained in the writ
petition are deemed not to have been admitted by the
respondents.
All parties shall act on the server copies of this
order duly downloaded from the official website of this
Hon'ble Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties upon compliance
of all necessary formalities.
(Lapita Banerji, J.)
