Port Officer/Executive Engineer ... vs Jyotiben Govindbhai Rathod Heir ...
2021 Latest Caselaw 16477 Guj

      C/LPA/936/2021                                   ORDER DATED: 21/10/2021


            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 936 of 2021
           In R/SPECIAL CIVIL APPLICATION NO. 10791 of 2021
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
              In R/LETTERS PATENT APPEAL NO. 936 of 2021
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        PORT OFFICER/EXECUTIVE ENGINEER (MECHANIC)
                           Versus
  JYOTIBEN GOVINDBHAI RATHOD HEIR OF GOVINDBHAI MAVJIBHAI
                          RATHOD
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 21/10/2021

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Ms.Sejal Mandavia for the appellant.

2. The appellant seeks to challenge, by filing this appeal under Clause 15 of the Letters Patent, order dated 04th August, 2021 of learned Single Judge, whereby learned Single Judge held that the orders impugned in the writ petition of the authorities under the Payment of Gratuity Act, 1972 were proper and legal, consequentially dismissing the Special Civil Application.

3. The relevant facts were that respondent's husband named Govindbhai Mavjibhai who worked under the appellant as Assistant Tradesman for the period from 06th February, 1980 to 21st January, 2017, died on 21st January, 2017. Respondent applied for payment

C/LPA/936/2021 ORDER DATED: 21/10/2021

of gratuity in capacity of heirs by filling up the necessary forms but the gratuity was not paid by the appellant-employer. The last monthly pay of deceased Govindbhai was Rs.29,536/- and he discharged his services continuously to be entitled to gratuity. It was the case that after several demands, though the gratuity was paid, it was less by Rs.02,92,165/- under the pretext that recovery of Rs.06,38,250/- was required to be effected.

3.1 The Payment of Gratuity Authority reasoned that under Section 13 of the Payment of Gratuity Act, the gratuity amount could have been withheld. Before the Appellate Authority, defence was raised by the employer that undertaking was given by the respondent for adjustment of the amount towards the recovery claimed by the employer.

4. The case that the appellant was entitled to recover and accordingly the amount was withheld from the gratuity was reiterated by learned advocate for the appellant by submitting that deceased employee was giving benefit of Resolution dated 17th October, 1988 by extending pay-scale and other benefits available to the permanent employee, which was accepted by him. It was stated that as per the judgment and award of the Industrial Tribunal in Reference (I.T.) No.215 of 1985, said Govindbhai was made permanent, however on certain conditions, one of which was that from the date of joining service till 01st September, 1992, the period will be required to be treated as notional and that the benefits are

C/LPA/936/2021 ORDER DATED: 21/10/2021

paid, such amount would be liable to be recovered.

5. The Controlling as well as Appellate Authority both have relied on Section 13 of the Payment of Gratuity Act to hold that gratuity could not have been withheld. Section 13 provides that no gratuity payable under the Act shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court.

5.1 Learned Single Judge has taken into account all the factual aspects including the undertaking dated 03rd August, 2017 and in that light, also took into consideration the say of the employer that amount of Rs.02,92,165/- was kept aside from being paid to be adjusted.

5.2 Reliance was placed on the decision of the Division Bench of this Court in the context of operation of Section 13 of the Act, in J.S. Bapna v. Sardar Krushinagar Dantiwada Agricultural University [2013 Lab. I.C. 3405].

6. Learned Single Judge finally observed and held,

"6. Thus, the Division Bench has held that provision of section 13 of the Act, prohibits any attachment of gratuity in execution of any decree or order of Civil Court, and even if there was an order of recovery the amount of gratuity was exempted from attachment from any execution of any decree or order. Thus, even if an employees gives an undertaking for recovering any amount which is paid in excess, such amount cannot be recovered from the gratuity. The petitioner has not adjusted the benefits accruing from DaulatBhai Parmar Committee in his salary when the benefits flowing

C/LPA/936/2021 ORDER DATED: 21/10/2021

from the government resolution dated 17.10.1988 was granted, hence it is not open for him to recover any excess payment from the gratuity."

6.1 We are in agreement with the reasons supplied and the order passed by the learned Single Judge.

7. No case is made out for interference in the impugned order. The Letters Patent Appeal summarily stands dismissed.

ORDER IN CIVIL APPLICATION

In view of dismissal of the main Letters Patent Appeal, no order is required to be passed in the Civil Application. It stands dismissed accordingly.

(N.V.ANJARIA, J)

(ANIRUDDHA P. MAYEE,J) ANUP