Gujarat High Court
Divisional Controller vs Heirs Of Decd Kafukbhai Abdulrahem ... on 5 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3197 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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DIVISIONAL CONTROLLER
Versus
HEIRS OF DECD KAFUKBHAI ABDULRAHEM VOHRA & ORS.
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Appearance:
MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/05/2025
ORAL JUDGMENT
1. The present petition is filed under Article 226 and 227 of
the Constitution of India challenging the order passed by
the learned Controlling Authority in Gratuity Application
No.269 of 2024 granting the simple interest on the
gratuity at the rate of 7.5% for the period from
01.01.2013 to 14.12.2022 and the order passed by the
Appellate Authority under the Payment of Gratuity Act,
1972(hereinafter referred to as the "Act") dated
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23.12.2024 whereby, the appeal of the petitioner
Company came to be rejected on the ground of delay.
2. It is the case of the present petitioner that husband of
the respondent was working as a Driver and he
remained on unauthorized leave for a period of two
years and due to the said misconduct committed by the
husband of the respondent, termination order was
passed after holding departmental inquiry. As the
Demand Reference was pending being Reference (IT)
No.37 of 2000, the Approval Application came to be filed
before the learned tribunal being Approval Application
No.140 of 2003 in Reference (IT) No.37 of 2000. The
said approval application came to be rejected by the
learned tribunal vide order dated 18.05.2011 and being
aggrieved by the said order rejecting the approval
application, the petition came to be filed being Special
Civil Application No.8535 of 2012 before this Court. This
Court vide order dated 05.12.2012 has stayed the order
passed by the learned tribunal rejecting the approval
which was continued till 2021 and thereafter, this Court
has dismissed the petition vide order dated 25.06.2021.
Being aggrieved by the order passed by this Court
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dismissing the petition, intra court appeal was filed
being Letters Patent Appeal No.468 of 2022 with Letters
Patent Appeal No.469 of 2022 which was also dismissed
by this Court vide order dated 23.06.2022. Thereafter,
petitioner had undertaken the exercise of pay fixation of
the deceased husband of respondent No.1 and difference
of pay fixation amounting to Rs.12,24,019/- was paid
through cheque dated 22.11.2022 and another cheque
was paid of Rs.6,06,742/- for the remaining amount.
Thereafter, based on the said pay fixation, the gratuity
was computed and was paid by the cheque on
14.12.2022 for an amount of Rs.5,50,790/-. As on
dismissal of the Letters Patent Appeal, exercise of doing
necessary paperwork was undertaken by the petitioner
as termination order of the husband of respondent No.1
in the year 2003, was finally adjudicated on 23.06.2022
by the Division Bench of this Court holding the
termination illegal, and immediately on receipt of the
order, the amount towards gratuity was paid to the
respondent No.1. Thereafter, wife of the deceased
husband who was respondent No.1 has filed an
application on 01.10.2023 under the Payment of Gratuity
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demanding the interest on late payment of the gratuity
amount.
2.1. The present petitioner has contended before the
authority that the payable gratuity amount has been
paid to the heirs of the deceased employee and the
application was filed after substantial delay i.e. after the
receipt of the money and as subject matter of dispute
was pending before this Court and the stay was
operating in favour of the petitioner Corporation which
was discontinued on 23.06.2022, no interest is required
to be paid on the same. Learned Controlling Authority,
after hearing the parties has passed the order on
13.06.2024 directing the petitioner to pay interest at the
rate of 7.5% on the amount of Rs.5,50,790/- from
01.01.2013 to 14.12.2022, which was challenged in the
appeal before the Appellate Authority being Gratuity
Appeal No.16563 of 2024, which was dismissed on the
ground of delay of 40 days and same is the subject
matter of challenge before this Court.
3. Heard learned advocate Mr.Hamesh Naidu for the
petitioner.
3.1. Learned advocate Mr.Naidu submits that in case
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where the termination of the concerned employee has
attained finality only on 23.06.2022 when the Letters
Patent Appeal came to be rejected, entitlement of the
payment of gratuity would arise on the dismissal of the
Letters Patent Appeal. It is submitted that immediately
after dismissal of the appeal, exercise of pay fixation was
undertaken in the year 2022 itself, therefore, the
question of payment of interest did not arise. Learned
advocate Mr.Naidu submits that under section 7(3)(a) of
the Act, the amount towards interest will only be
payable from the day the gratuity becomes payable. In
the instant case, the gratuity becomes payable only on
finalization of the termination vide order dated
23.06.2022, therefore, before the the said date,
employee cannot claim the gratuity as a matter of right
and in that background the order passed by the learned
Controlling Authority is erroneous.
3.2. Learned advocate Mr.Naidu has relied on the decision
rendered by this Court in the case of Chandagauri
Gordhandas Versus Naliniben Harishchandra
Randheria & Others in Special Civil Application
No.10525 of 2013 wherein, this Court has specifically
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held that if the employee has raised the claim belatedly,
then the employee would not be entitled for the interest
on the gratuity amount and same cannot be claimed as a
matter of right. It is submitted by the learned advocate
Mr.Naidu that as the issue with regard to the
termination was pending for consideration before this
Court and once the same is finalized, the amount would
become payable to the respondent employee. Learned
advocate Mr.Naidu submits that if the wages of the year
2012 of the concerned employees was to be undertaken
into consideration for payment of gratuity, payable
gratuity amount would have been less than the amount
paid.
3.3. In the instant case, after finalization of the issue of
termination exercise of the pay fixation was under taken
and thereafter, on that the revised pay gratuity was
computed and paid to the heirs of the respondent. It is
submitted by the learned advocate Mr.Naidu that
learned Controlling Authority miserably failed to
appreciate the fact that as there was a stay operating in
favour of the petitioner-Corporation, the period of
interest was awarded from 01.01.2013 till 14.12.2022.
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As neither the termination, nor pay scale has been
finalized, therefore, no interest could have been
awarded for the said period. However, learned
Controlling Authority by awarding the same has
committed an error and therefore, same is required to
be interfered with. Learned advocate Mr.Naidu submits
that after receiving the gratuity amount on 14.12.2022,
application claiming the interest was preferred on
01.09.2023, therefore, there was a delay in claiming the
gratuity amount and on that ground also impugned
order deserves to be set aside and petition is required to
be allowed.
4. Having considered the arguments advanced by learned
advocate, it emerges from the record that the workman
was working as a Driver at Godhra Division with the
petitioner Corporation and it was alleged that he was
absent from the duty from 21.11.2001 to 04.01.2002,
which led to departmental inquiry and the charge sheet
was served upon the workman. After issuing the second
show cause notice, the service came to be terminated by
the petitioner-Corporation on 10.04.2003 and money
order was sent for an amount of Rs.5000/- and Rs.3673/-
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received by the respondent and issued receipt being
No.9331 and 9332. The Corporation filed an Approval
Application which was contested on the ground that one
month salary has not been given and the inquiry was
conducted in an illegal manner and considering the
same, the Approval Application came to be rejected,
thereafter, the Recovery Application was moved by the
employee which was allowed. Challenging the Recovery
Application and rejection of Approval Application,
learned tribunal vide order dated 18.05.2011, in addition
to affirming the order passed by the learned labour
court in recovery application No.47 of 2012, had issued
directions to comply with the order within a period of
four months from the date of receipt, or the amount
would carry 6% interest in realization. The Corporation
questioned both the orders before this Court in a Writ
Petition wherein, this Court while issuing the Notice
vide order dated 05.12.2012, has stayed the impugned
orders.
4.1. Thereafter the final order was passed by this Court
wherein, the petition filed by the Corporation came to be
rejected. Challenging the order of dismissal of the
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petition, the appeal came to be filed before this Court
which also came to be dismissed vide order dated
23.06.2022. It is undisputed fact that during the
pendency of this proceeding, deceased employee retired
on attaining the age of superannuation on 31.12.2012
and his last drawn wages was Rs.16,820/- alongwith D.A.
of Rs.12,110/-. It is the claim of the petitioner that after
dismissal of the intra Court Appeal, on calculating 35
years of service by deducting two years of unauthorized
leave, the payment of wages alongwith the pay fixation
was done by issuing two cheques dated 12.12.2022 and
14.12.2022 and the gratuity amount of Rs.5,50,790/- was
paid on 14.12.2022. It is claimed by the petitioner that
as proceedings are pending before this Court and on
conclusion of the said proceedings on 23.06.2022,
immediately the amount is paid, therefore, requirement
of payment of interest would not arise.
4.2. In the above background question arising for
consideration before this Court is that the gratuity which
is withheld by the employer, would the employee be
entitled for interest on the said withheld period if he is
not found to be at fault?
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5. To answer the above question, the reference is required
to be made on certain provisions of the Payment of
Gratuity Act i.e. section 4 and 7 of the Act which is
reproduced herein below:-
"Section: 4 Payment of gratuity.
(1) Gratuity shall be payable to an employee on the termination
of his employment after he has rendered continuous service
for not less than five years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
(2) For every completed year of service or part thereof in excess
of six months, the employer shall pay gratuity to an
employee at the rate of fifteen days wages based on the rate
of wages last drawn by the employee concerned:
(3) The amount of gratuity payable to an employee shall not
exceed three lakhs and fifty thousand] rupees.
(4) For the purpose of computing the gratuity payable to an
employee who is employed, after his disablement, on
reduced wages, his wages for the period preceding his
disablement shall be taken to be the wages received by him
during that period, and his wages for the period subsequent
to his disablement shall be taken to be the wages as so
reduced.
(5) Nothing in this section shall affect the right of an employee to
receive better terms of gratuity under any award or
agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (1), -
(a) the gratuity of an employee, whose services have been
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terminated for any act, wilful omission or negligence causing
any damage or loss to, or destruction of, property belonging
to the employer, shall be forfeited to the extent of the
damage or loss so caused.
(b) the gratuity payable to an employee may be wholly or
partially forfeited] -
(i) if the services of such employee have been terminated for his
riotous or disorderly conduct or any other act of violence on
his part, or
(ii) if the services of such employee have been terminated for any
act which constitutes an offence involving moral turpitude,
provided that such offence is committed by him in the
course of his employment.
(7) [***]
Section: 7 Determination of the amount of gratuity.
(1) A person who is eligible for payment of gratuity under this
Act or any person authorised, in writing, to act on his behalf
shall send a written application to the employer, within such
time and in such form, as may be prescribed, for payment of
such gratuity.
(2) As soon as gratuity becomes payable, the employer shall,
whether an application referred to in sub-section (1) has
been made or not, determine the amount of gratuity and
give notice in writing to the person to whom the gratuity is
payable and also to the controlling authority specifying the
amount gratuity so determined.
(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
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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:
(a) If there is any dispute as to the amount of gratuity payable to
an employee under this Act or as to the admissibility of any
claim of, or in relation to, an employee for payment of
gratuity, or as to the person entitled to receive the gratuity,
the employer shall deposit with the controlling authority
such amount as he admits to be payable by him as gratuity.
(b) Where there is a dispute with regard to any matter or matters
specified in clause (a), the employer or employee or any
other person raising the dispute may make an application to
the controlling authority for deciding the dispute.]
(c)] The controlling authority shall, after due inquiry and after
giving the parties to the dispute a reasonable opportunity of
being heard, determine the matter or matters in dispute and
if, as a result of such inquiry any amount is found to be
payable to the employee, the controlling authority shall
direct the employer to pay such amount or, as the case may
be, such amount as reduced by the amount already deposited
by the employer.]
(d)The controlling authority shall pay the amount deposited,
including the excess amount, if any, deposited by the
employer, to the person entitled thereto.
(e)As soon as may be after a deposit is made under clause (a),
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the controlling authority shall pay the amount of the deposit
-
(i) to the applicant where he is the employee; or
(ii) where the applicant is not the employee, to the nominee or,
as the case may be, the guardian of such nominee or] heir
of the employee if the controlling authority is satisfied that
there is no dispute as to the right of the applicant to receive
the amount of gratuity.
(5) For the purpose of conducting an inquiry under sub-section
(4), the controlling authority shall have the same powers as
are vested in a court, while trying a suit, under the Code of
Civil Procedure, 1908 (5 of 1908), in respect of the following
matters, namely :
(a) enforcing the attendance of any person or examining him on
oath;
(b) requiring the discovery and production of documents,
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses.
(6) Any inquiry under this section shall be a judicial proceeding
within the meaning of sections 193 and 228, and for the
purpose of section 196, of the Indian Penal Code, 1860 (45
of 1860).
(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:
(8) The appropriate Government or the appellate authority, as the
case may be, may, after giving the parties to the appeal a
reasonable opportunity of being heard, confirm, modify or
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reverse the decision of the controlling authority."
5.1. On perusal of sub section 2 of section 7 of the Act, it
reveals that it is onerous responsibility of the employer
to determine the amount of gratuity payable to the
retiring employees, sub section 3 of section 7 enjoins a
further responsibility on the employer to disburse the
amount of gratuity payable to an employee within 30
days from the date it becomes payable. In the instant
case when the employee attained the age of
superannuation on 31.12.2012, it is apparent that
gratuity had become payable to him on 31.12.2012.
5.2. Sub section 3-A of section 7 of Gratuity Act is also
relevant for determination of the present controversy.
Perusal of the said sections leaves no room for any doubt
that in case gratuity is not released to an employee
within a period of 30 days from the date it becomes
payable, the employee in question would be entitled to
simple interest at such rate not exceeding the rate
notified by the Central Government from time to time for
repayment of long term loans as the Government may
specify by notification. There is, however, one exception
to the payment of interest envisaged under sub section 3
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of section 7 of the Act which provides for in the proviso
under sub section 3-A of section 7. Perusal of the said
proviso, reveals that no interest would be payable, "if
delay in payment is due to fault of the employee and the
employer has obtained the permission in writing from
the Controlling Authority for the delayed payment on
this ground".
6. Admittedly in this case neither the employee can be
faulted to exclude the employer for payment of interest,
nor the employer has obtained the permission in writing
from the Controlling Authority. The only ground raised
before the Court is that approval application which was
rejected was pending for the adjudication before this
Court, however, for that ground the fault cannot be
attributed to the employee for payment of the gratuity
under the proviso of sub section 3-A of section 7 of the
Act. It is contended by the petitioner that the exercise of
pay fixation was done on dismissal of intra Court Appeal
and thereafter, immediately the payment of gratuity is
done. In the opinion of this Court, for that reason,
employee cannot be held entitled for the interest which
is provided under the statute itself.
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7. This Court has referred the decision rendered by the
Apex Court in the case of H.Gangahanume Gowda
Versus Karnataka Agro Industries Corporation Ltd.
reported in 2003 3 SCC 40 wherein, it is held by the
Apex Court that interest on delayed payment of the
gratuity would be denied only on the ground that the
payment of gratuity was due to the fault of the
employees and they had obtained permission in writing
from the learned Controlling Authority for the delayed
payment, on that ground. There is a clear mandate in the
provision of section 7 of the Act to the employer for
payment of gratuity within time and to pay the interest
on the delayed payment of gratuity. There is also
provision to recover the amount of gratuity with the
compound interest, in case of the payment of gratuity
payable was not paid by the employer for payment of
section 8 of the Act. If the employer did not satisfy the
mandatory requirement of the proviso to section 7(3)-A,
no discretion was left to deny the interest to the
appellant on delayed payment of gratuity. The relevant
paragraph is reproduced herein below:-
"7. It is evident from Section 7(2) that as soon as gratuity
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becomes payable, the employer, whether any application has been
made or not, is obliged to determine the amount of gratuity and
give notice in writing to the person to whom the gratuity is
payable and also to the controlling authority specifying the
amount of gratuity. Under Section 7(3), the employer shall arrange
to pay the amount of gratuity within 30 days from the date it
becomes payable. Under sub- section 3(A) of Section 7, if the
amount of gratuity is not paid by the employer within the period
specified in sub-section (3), he 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; 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 that ground. From the
provisions made in Section 7, a clear command can be seen
mandating the employer to pay the gratuity within the specified
time and to pay interest on the delayed payment of gratuity. No
discretion is available to exempt or relieve the employer from
payment of gratuity with or without interest as the case may be.
However, under the proviso to Section 7(3A), no interest shall be
payable if delay in payment of gratuity is due to the fault of the
employee and further condition that the employer has obtained
permission in writing from the controlling authority for the
delayed payment on that ground. Under Section 8, provision is
made for recovery of gratuity payable under the Act, if not paid
by the employer within the prescribed time. The Collector shall
recover the amount of gratuity with compound interest thereon as
arrears of land revenue and pay the same to the person entitled.
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A penal provision is also made in Section 9 for non-payment of
gratuity. Payment of gratuity with or without interest as the case
may be does not lie in the domain of discretion but it is a
statutory compulsion. Specific benefits expressly given in a social
beneficial legislation cannot be ordinarily denied. Employees on
retirement have valuable rights to get gratuity and any culpable
delay in payment of gratuity must be visited with the penalty of
payment of interest was the view taken in State of Kerala & Ors.
vs. M.Padmanabhan Nayyar [1985 (50) FLR 145]. Earlier there was
no provision for payment of interest on the delayed payment of
gratuity. Sub-section (3A) was added to Section 7 by an
amendment, which came into force with effect from 1st October,
1987. In the case of Charan Singh vs. M/s. Birla Textiles and
Another [1988 (57) FLR 543 SC], this aspect was noticed in the
following words:
"4. There was no provision in the Act for payment of
interest when the same was quantified by the Controlling
Authority and before the Collector was approached for its
realization. In fact, it is on the acceptance of the position
that there was a lacuna in the law that Act 22 of 1987
brought about the incorporation of sub-section 3(A) in
Section 7. That provision has prospective application."
8. The other ground on which the petitioner has challenged
the order of learned Controlling Authority is that
entitlement arises only after the dismissal of the intra
court appeal. To test the argument if one would examine
again the provision section 4 of the Payment of Gratuity
Act, then it emerges that sub section (1 to 6) of section 4
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of the Gratuity Act provides that gratuity shall be
payable to the employees on the termination of the office
employment after he has rendered continuous service
for not less than five years in the case where (a) he is
superannuated; (b) he retired or resigned or;(c) on his
death or disablement due to accident or disease.
9. Section 4 of the Act, read conjointly with Section 2(r) of
the Act, where the superannuation is defined and it says
thatin relation to an employee, means the attainment by
the employee of such age as is fixed in the contract or
conditions of service at the age on the attainment of
which the employee shall vacate the employment. In the
opinion of this Court, the employee's entitlement to
gratuity arises immediately upon attaining the age of
superannuation. Therefore, the pendency of the
proceedings before this Court would not disentitle the
employee from receiving the gratuity under the Payment
of Gratuity Act.
10. The ground of delay which was raised by the learned
advocate for the petitioner would also not come for the
rescue on the ground that it is onerous responsibility of
the employer to determine the amount of gratuity
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payable to a retiring employee. In absence of any fault
on the part of the employee the amount of gratuity
cannot be withheld. This Court has referred the decision
rendered by the Apex Court in the case of Y.K. Singla
Versus Punjab National Bank & Others reported in
2003 3 SCC 472 wherein, before the Apex Court the
case was that due tot he pendency of the criminal
proceedings, the amount of gratuity was withheld. In
that background, the Apex Court has held as under:-
"12. The right to withhold gratuity, is an issue separate and
distinct, from the claim of interest, which has been raised by the
appellant. The question that arises for consideration is, whether an
employee whose gratuity has been withheld under Regulation
46(2) of the 1995 Regulations, would he be entitled to interest on
the withheld payment of gratuity, if he is found not to be at
fault?
13. According to the simple logic of the appellant, since his
gratuity was withheld from 1996 (when he retired from service)
till 2010 (when gratuity was eventually released to him), i.e., for
a period of 14 years, for no fault of his, he is most definitely
entitled to interest on the delayed payment. It is, however, not
the simple logic of the appellant, which will determine the
controversy in hand. For, logic gave rise to diametrically opposite
views, one of which was expressed by the Writ Court, and the
other by the Letters Patent Bench. We shall therefore endeavour
to search for a legal answer, to the issue in hand.
14. The 1995, Regulations, are silent on the subject of an
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employee's rights whose gratuity has been withheld, even in
circumstances where it has eventually been concluded, that he
was not at fault. This is exactly the situation in the present
controversy, inasmuch as, the appellant's retiral benefits including
gratuity, were withheld on 31.10.1996 when he retired on
attaining the age of superannuation. The aforesaid withholding,
was on account of a pending criminal proceeding. The said
withholding has appropriately been considered as valid, under
Regulation 46(2) of the 1995, Regulation. But the appellant was
acquitted from the criminal prosecution initiated against him on
31.10.2009. As such, it is inevitable to conclude, that his gratuity
was withheld without the appellant being at fault. It is in the
aforesaid background, that we shall venture to determine the
claim of the appellant for interest, despite the PNB having validly
withheld his gratuity under Regulation 46(2) of the 1995,
Regulations."
11. Considering the overall circumstances, this Court did not
find any infirmity in the directions issued by the learned
Controlling Authority confirmed by the learned Appellate
Authority under the Payment of Gratuity Act. Hence, this
petition being devoid of any merits deserves to be
dismissed.
12. Resultantly, this petition being Special Civil Application
No.3197 of 2025 is dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
