Serial No.03
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.39/2023
Date of Order: 29.02.2024
Hillarton Sangma & anr Vs. State of Meghalaya & ors
Coram:
Justice S. Vaidyanathan, Chief Justice
Hon’ble Mr.
W. Diengdoh, Judge
Hon’ble Mr. Justice
Appearance:
For the Appellants : Mr. A.G. Momin, Adv
For the Respondents : Mr. N.D. Chullai, AAG with
Ms. Z.E. Nongkynrih, GA
Mr. P. Yobin, Adv for R/4
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
ORDER
Chief Justice)
(Made by Hon’ble
The present Writ Appeal has been preferred against the order
of the learned Single Judge dated 21.09.2023 passed in WP (C) No.59 of
2022, whereby the plea of the writ petitioner for grant of gratuity and
other benefits have been rejected.
2. Learned counsel for the writ petitioners, who are appellants
herein submitted that the appellants have been deprived of gratuity for
the services rendered and also leave encashment.
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3. Learned counsel for the respondent No.4 has vehemently
contended that the appellants had accepted the Golden Handshake / VR
Scheme and due to genuine reasons, the establishment could not be
continued. After negotiation with Workmen / Union, it has been decided
to enter into a scheme by which all the employees have been paid the
benefits in terms of Golden Handshake / VR Scheme. He further
contended that it is true that some of the employees had already knocked
at the doors of the Court and obtained some relief. But in the present
case on hand, the appellants / writ petitioners have approached this Court
after a lapse of 21 years of the cessation of employer & employee
relationship and at this point of time, it is very difficult to have access to
the scheme, based on which the benefits have been extended to all the
employees. He also contended that there is no chance of getting those
documents at this stage to ascertain about the genuineness of the claim
made by the appellants.
4. It is an accepted position that Gratuity and pension are not
the bounties. The amount of gratuity to be received by an employee is a
property within the meaning of Article 300-A of the Constitution of
India and the statutory right to property cannot be taken away without
following due process of law. The concern expressed by the Hon’ble
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Supreme Court impressing that the retirement dues must be paid in time,
is reflected, in the case of Dr.Uma Agarwal vs. State of U.P., reported in
(1999) 3 SCC 438, and the observation needs as under:-
“....grant of pension is not a bounty but a right of the
government servant. The Government is obliged to follow the
Rules mentioned in the earlier part of this order in letter and
in spirit. Delay in settlement of retiral benefits is frustrating
and must be avoided at all costs. Such delays are occurring
even in regard to family pensions for which too there is a
prescribed procedure. This is indeed unfortunate. In cases
where a retired government servant claims interest for
delayed payment, the Court can certainly keep in mind the
time-schedule prescribed in the Rules/Instructions apart
from other relevant factors applicable to each case
.”
5. In this case, the employer has not disputed the actual years of
service and the last drawn pay of Rs.2000/ per month. However, there is
no evidence adduced on the side of the appellants to establish that they
are entitled for leave encashment. The writ petitioners/appellants cannot
convert this Court as an adjudicating Court and compel this Court to
decide about the amount which they are entitled to.
6. Insofar as gratuity is concerned, the factum of years of
service and last drawn pay is not in dispute. Considering the fact that
there was a golden handshake scheme, by which the employees have
been disengaged from service, the employees have to be paid gratuity. It
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is pertinent to state here that the employees have approached this Court
without going before the appropriate authority, claiming gratuity and
that there is also delay of 21 years in seeking the relief.
7. Before proceeding with the issue involved herein, for better
appreciation, Sections 7 and 8 of the Payment of Gratuity Act, 1972 are
extracted hereunder:
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 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
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of the employee and the employer has obtained permission in
writing from the controlling authority for the delayed
payment on th
is ground.”
"Notification under Section 7(3-A) of the Payment
of Gratuity Act: S.O. 874--In exercise of the powers
conferred by subsection (3A) of Section 7 of the Payment of
Gratuity Act, 1972 (39 of 1972), the Central Government
hereby specifies ten percent per annum at the rate of simple
interest payable or the time being by the employer to his
employees in cases where the gratuity is not paid within the
specified period. This Notification shall come into force on
the date of its publication in the Official Gazetter (vide the
Gazette of India, Extraordinary, P.II, Section 3(i) dated 1st
October, 1987 at p.2)"
8. Recovery of gratuity:
“
If the amount of gratuity payable under this Act is
not paid by the employer, within the prescribed time, to the
person entitled thereto, the controlling authority shall, on an
application made to it in this behalf by the aggrieved person,
issue a certificate for that amount to the Collector, who shall
recover the same, together with compound interest thereon at
such rate as the Central Government may, by notification,
specify,] from the date of expiry of the prescribed time, as
arrears of land revenue and pay the same to the person
entitled thereto:
Provided that the controlling authority shall, before
issuing a certificate under this section, give the employer a
reasonable opportunity of showing cause against the issue of
such certificate:
Provided further that the amount of interest payable
under this section shall, in no case exceed the amount of
gratuity payable under this Act.
”
"Notification under Section 8 of the Payment of
Gratuity Act:- S.O.1032(E). - In exercise of the powers
conferred by Section 8 of the Payment of Gratuity Act, 1972
(39 of 1972), the Central Government hereby specifies 15 per
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cent per annum as the rate of compound interest, recoverable
by the Collector for the time being, along with the amount of
gratuity and payable to the person entitled thereto. This
notification shall come into force on the date of its
publication in the Official Gazette."
8. A reading of Section 7(3)(A) of the Payment of Gratuity Act,
makes it clear that, the employer will
1972 (in short „the Act, 1972‟)
have to pay interest @ 10% p.a., in case the amount is not paid within
the time stipulated. In the event of non-payment of gratuity even after
the orders of the Controlling Authority, which has been confirmed by the
Appellate Authority, such non-payment of gratuity would attract interest
@ 15% p.a. in terms of Section 8 thereof. In any event, interest cannot
be more than the principal amount demanded as per the proviso to
Section 8 of the Act (extracted supra)
9. In this case, there is an enormous delay and in our view, in
case we relegate the matter to the Controlling Authority, the authority, at
the first instance, will have to decide the delay and in that event, there
can be no end to the litigation. Therefore, in order to give quietus to the
issue on hand and shorten the life of litigation, we are of the view that
the payment of gratuity shall be payable to the appellants for the actual
years of service rendered, by taking into account the last drawn pay of
Rs.2,000/- divided by 26, multiplied by 15 and multiplied by the actual
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years of service to the appellants within a period of two months from the
date of receipt of this judgment. It is made clear that the appellants will
not be entitled to any interest in terms of Section 7(3) A and Section 8
mentioned supra. It is further made clear that the judgment rendered in
this case is applicable only to the appellants concerned in this appeal and
this cannot be treated as a precedent for others to come up with similar
demand. In case any other employees approaches this Court for the
similar relief, it will be open to the respondents to take a defence of
laches, which shall be considered in accordance with law.
10. With the above observation, W.A.No.39 of 2023 stands
disposed of.
(W.Diengdoh) (S.Vaidyanathan)
Judge Chief Justice
Meghalaya
29.02.2024
Lam DR-
“ PS”
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