Chief Administrative Officer, Gujarat ... vs Bharatkumar Parsottambhai Kanani
2024 Latest Caselaw 9111 Guj

Gujarat High Court

Chief Administrative Officer, Gujarat ... vs Bharatkumar Parsottambhai Kanani on 18 November, 2024

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                             C/SCA/15695/2024                                     JUDGMENT DATED: 18/11/2024

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/SPECIAL CIVIL APPLICATION NO. 15695 of 2024

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MRS. JUSTICE M. K. THAKKER

                        ==========================================================

                        1     Whether Reporters of Local Papers may be allowed
                              to see the judgment ?                                                  No

                        2     To be referred to the Reporter or not ?                                 No

                        3     Whether their Lordships wish to see the fair copy
                              of the judgment ?                                                        No

                        4     Whether this case involves a substantial question
                              of law as to the interpretation of the Constitution                     No
                              of India or any order made thereunder ?

                        ==========================================================
                             CHIEF ADMINISTRATIVE OFFICER, GUJARAT WATER SUPPLY AND
                                                SEWERAGE BOARD
                                                       Versus
                                    BHARATKUMAR PARSOTTAMBHAI KANANI & ORS.
                        ==========================================================
                        Appearance:
                        NIYATI D CHAUHAN(9082) for the Petitioner(s) No. 1
                        SHIVAM DIXIT AGP for the Respondent(s) No. 2,3
                        ==========================================================
                            CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                              Date : 18/11/2024
                                                              ORAL JUDGMENT

1. This petition is filed under Articles 226 and 227 of the

Constitution of India with following prayers:-

"(A) Your Lordships be pleased to admit and allow the present application of the petitioner. (B) This Hon'ble Court may be pleased to issue and appropriate writ, order or direction to quash and set aside

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communication / order dated 03.06.2023 passed in Delay Application for preferring the Gratuity Appeal passed by the Appellate Authority, Ahmedabad under the Payment of Gratuity Act, 1972 (ANNEXURE-A) and order dated 01/02.07.2022 passed in Gratuity Application No. 495 of 2021 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (ANNEXURE-B) and further may be pleased to reject the case of respondent No. 1;

(C) Pending the admission, hearing and final disposal of the petition, execution, implementation and operation of impugned communication / order dated 03.06.2023 passed in Delay Application for preferring the Gratuity Appeal passed by the Appellate Authority, Ahmedabad under the Payment of Gratuity Act, 1972 (ANNEXURE- A) and order dated 01/02.07.2022 passed in Gratuity Application No. 495 of 2021 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (ANNEXURE-B) may kindly be stayed;

D) Your Lordships be pleased to grant such other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted."

2. It is the case of the petitioner that the respondent No.1 had

retired as a Superintending Engineer (Mechanical) on 30.11.2020

and after retiring, the benefits of the employee was paid to the

respondent No.1. The gratuity application was preferred by the

respondent No.1 being No.495 of 2021 seeking interest on the late

payment of the gratuity from 01.01.2021 to 15.04.2021.

3. Learned Controlling Authority has allowed the gratuity

application by order dated 01.07.2022 and directed the petitioner to

pay the interest for the aforesaid period at the rate of 10%, the

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aforesaid order was challenged before the learned Appellate

Authority. However, learned Appellate Authority has dismissed the

appeal on the ground that the aforesaid appeal was filed after the

period of 120 days challenging the order passed by the learned

Appellate Authority. The present petition is filed by the petitioner.

4. Learned advocate Ms. N. D. Chauhan submits that due to

administrative reasons, the amount towards gratuity could not be

paid within a stipulated period. Therefore, learned Controlling

Authority has committed error in not considering above submission

and directing to pay 10% interest on the late payment of the gratuity.

4.1 Learned advocate Ms. N. D. Chauhan submits that the learned

Appellate Authority has also committed an error in not considering

the appeal on merits and dismissing the same on the ground of delay.

4.2 Leaned advocate Ms. N. D. Chauhan submits that as there was

no mala-fide intention on the part of petitioner's management for not

making payment of the amount of the gratuity within a period of 30

days and therefore, both the orders passed by the learned Courts

below are required to be set aside and the present petition is required

to be allowed.

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5. Considering the submission made by the learned advocate Ms.

N. D. Chauhan, it transpires from the record that the respondent

No.1 who was serving as a Superintending Engineer (Mechanical)

from 16.05.1983, he came to be retired on 30.11.2020 and his

payment towards the gratuity was made on 16.04.2021. The

application was preferred before the learned Controlling Authority

being Gratuity Application No.495 of 2021 seeking interest on late

payment of the gratuity amount which was granted by the learned

Controlling Authority by directing the petitioner to pay 10% interest

for the period of 01.01.2021 to 15.04.2021, at this stage provision

under Section 7 sub-Sections 3, 3-A and 7 is required to be referred

of the Payment of Gratuity Act, which is reproduced hereinbelow.

"(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable. (3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:

Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.

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(7)Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:

Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days. Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under subsection (4), or deposits with the appellate authority such amount."

6. As per the above provision, payment if not made towards the

gratuity within a period of 30 days then the payment of the interest is

required to be paid on late payment of statutory right as the same is a

mandatory provision. Learned Controlling Authority has rightly

awarded the interest at the rate of 10% for the late payment period.

7. So far as the contention with regard to not considering the

appeal on merits is concerned this Court would like to refer the

decision of the Division Bench of this Court in the case of State of

Gujarat Versus Hansrajbhai Chanabhai Savasadiya passed in

Special Civil application No.2799 of 2014, reported in 2021(0)

AIJEL-HC243459, whereby, the relevant para 4.1 is reproduced

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hereinbelow:

"4.1 The Division Bench of this Court has, while deciding Special Civil Application No.2799 of 204, on July 18th, 2014, observed thus:

"So far the Special Civil Application No.2799 of 2004 preferred against the order of the appellate authority in Appeal No.7 of 2004 is concerned, we find that the appellate authority rightly refused to condone the delay in view of the fact that the order impugned therein was passed on 6th August, 2001, whereas the appeal was preferred on 16th February 2004 beyond the period of limitation.

It appears from the provisions contained in section 7[7] of the aforesaid Act that, any person aggrieved by an order under subsection [4] may, within sixty days from the date of receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf. The first proviso to sub-section [7] further provides that the appropriate Government or the appellate authority, as the case may be, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.

Thus, the aforesaid statutory provision does not authorize the appellate authority to condone more than 60 days' delay in preferring the appeal beyond the period of limitation.

In case before us, the appeal has been preferred by the employer after more than three years from the date of passing of the original order. In our opinion, the appellate authority rightly refused to condone the delay and dismissed the appeal as the appellate authority has no power of condonation of more than 60 days' delay. We, thus, find no substance in the Special Civil Application No.2799 of 2004 challenging the order of the appellate authority refusing to condone the delay. The Special Civil Application No.2799 of 2004 is, thus, devoid of any merit and is dismissed accordingly."

8. Considering the above decision, this Court is of the view that

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the learned Appellate Authority would not have power to condone

the delay beyond 120 days and therefore, also no error is committed

by any of the authority.

9. In view of above, this petition is dismissed.

(M. K. THAKKER,J) Vikramsinh Amarsinh