Karnataka High Court
Dr B J Mahendra vs State Of Karnataka on 20 September, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.9071/2014 (S-R)
BETWEEN:
Dr. B.J. Mahendra,
S/o. Sri C. Jayakrishnappa,
Aged 46 years,
R/o 865, 5th Cross,
Indiranagar, 1st Stage,
Bengaluru-560 038
... PETITIONER
(By Smt. Geeta Menon, Adv.)
AND:
1. State of Karnataka,
By its Secretary,
Department of Health and Family Services,
M.S. Building,
Bengaluru-560 001
2. The Director,
Department of Health and Family Services
Ananda Rao Circle,
Bengaluru-560 001
3. The Secretary
Vokkaligara Sangha,
2
Vishwespuram,
Bengaluru-560 004
4. Dean & Principal
Kempegowda Institute of
Medical Sciences (KIMS)
Vishwespuram,
Bengaluru-560 004
... RESPONDENTS
(By Smt. Shilpa S. Gogi HCGP for R1 & R2;
Sri C.N. Keshavamurthy, Adv., for R3 & R4)
This writ petition is filed under Articles 226 & 227 of
the constitution of India, praying to direct the respondents to
disburse the gratuity benefits to the petitioner in accordance
with the provisions of the Payment of Gratuity Act and Rules
and Notifications issued thereunder with interest at 10% per
annum from 28.03.2007.
This petition coming on for Preliminary Hearing in 'B'
Group, this day, the Court made the following :
ORDER
The petitioner, who is a retired Associate Professor, is before this Court seeking for a writ of mandamus directing the respondents to disburse gratuity benefits to him in accordance with the provisions of Payment of Gratuity Act and Rules and 3 notification issued thereunder, with 10% interest per annum from 28.03.2007.
2. The case of the petitioner is that, petitioner was appointed as a Lecturer in the Department of Community Medicine with the 4th respondent-KIMS on 01.10.1996. The services of the petitioner was confirmed with effect from 16.11.1996. Thereafter, he was promoted as Associate Professor with effect from 01.04.2002 and subsequently he gave resignation to the said post and the same was accepted by the 3rd and 4th respondents on 28.02.2007. The Payment of Gratuity Act and Rules were applicable to the employees of the 4th respondent-Institution including the petitioner and he is entitled to get the payment of gratuity amount within 30 days of his resignation, having completed 10 years continuous service in the said institution. He made several representations to the 3rd and 4th 4 respondents, but, there was no response, nor they paid the gratuity amount till the date of the filing of the writ petition.
3. In the meanwhile, another Professor of the same institute similarly placed as that of the petitioner had approached this Court in W.P. No.4910/2012 which came to be disposed of by an order dated 16.02.2012, directing the respondents to consider the request of the petitioner made therein and accordingly the 4th respondent after considering the representation of the petitioner therein has released the gratuity amount to the said petitioner. Therefore, the petitioner was constrained to issue legal notice on 08.08.2013 to the respondents calling upon them to pay the gratuity amount and the 3rd respondent sent an untenable reply on 02.09.2013 stating that in view of the pendency of writ petition Nos.26263-270/2011 and other petitions 5 challenging the retrospective operation of the Payment of Gratuity Act from April 1997, the claim of the petitioner cannot be considered. In spite of issuing legal notice and representation, the respondents have not disbursed the gratuity amount as contemplated under the provision of Section 7(3A) of Payment of Gratuity Act and Rules. Therefore, the petitioner is before this Court for the relief sought for.
4. The respondents have not filed any objections to the writ petition.
5. In view of the fair submission made by Miss. Geeta Menon learned counsel for the petitioner, that on 19.08.2017 when the matter was posted before the Court, the 4th respondent has issued a cheque dated 09.01.2016 in favour of the petitioner for a sum of Rs.1,38,858/- as gratuity amount, excluding the interest to which the petitioner is entitled to, from 6 28.03.2007, in terms of the notification dated 01.10.1987 issued under the provisions of Section 7(3A) of the Payment of Gratuity Act, 1972.
6. I have heard the learned counsel appearing for the parties to the lis.
7. Miss. Geetha Menon, learned counsel for the petitioner reiterating the grounds urged in the writ petition has contended that when there is no dispute that petitioner has worked in the 4th respondent- Institute and resigned to the post of Associate Professor and the same was accepted by the 4th respondent on 28.02.2007, it is the duty of the 4th respondent to pay the gratuity amount as contemplated under the provisions of Section 7(3A) of the Payment of Gratuity Act and Rules, 1972. The authority has not discharged its obligations under the provisions of the said Act and driven the petitioner to this Court unnecessarily for 7 seeking writ of mandamus. She fairly submits that during the pendency of the writ petition, the 4th respondent issued cheque dated 09.01.2016 for a sum of Rs.1,38,858/- towards principal amount of gratuity, which did not include the 10% interest for the delayed period in paying the gratuity amount. She further submits that the petitioner though resigned on 28.02.2007, the amount of gratuity was paid on 09.01.2016, i.e. after the lapse of 9 years. Therefore, petitioner is entitled for the interest in view of the Government Notification dated 01.10.1987 and under the provisions of Section 7(3A) of the Payment of Gratuity Act and Rules. Therefore, she sought to allow the writ petition directing the respondents to pay the interest for the delayed period.
8. Per contra, Sri C.N. Keshavamurthy, learned counsel for the 3rd and 4th respondents submits that as 8 on the date of payment of gratuity amount, the Payment of Gratuity Act and Rules was not applicable and subsequently entire principal amount was paid on 09.01.2016. Therefore, petitioner was not entitled for the interest on the delayed period and the petitioner made representation only on 08.08.2013 for payment of gratuity amount. Therefore, he submits that the petitioner is not entitled to any interest on gratuity amount and accordingly he sought for dismissal of the writ petition.
9. In view of the rival contentions urged by the learned counsel appearing for the parties, the only point that arises for consideration in the present petition is:
"Whether the petitioner is entitled to the interest on the delayed payment of gratuity amount of Rs.1,38,858/- in the facts and circumstances of the case?"9
10. The material on record clearly depicts that the petitioner was appointed as a Lecturer in the 4th respondent-College (KIMS) on 01.10.1996 and confirmed with effect from 16.11.1996 and subsequently he was promoted as Associate Professor on 01.04.2002. It is also not in dispute that the petitioner submitted his resignation letter and the same was accepted on 28.02.2007 by the 4th respondent. In spite of several representations and legal notice issued, the respondents have not disbursed the gratuity amount to the petitioner even though similarly placed person who approached this Court in writ petition No.4910/2012 disposed of on 16.02.2012 had been paid gratuity amount. Therefore, petitioner filed this writ petition.
11. It is also not in dispute that during the pendency of the petition, respondents have issued a cheque dated 10 09.01.2016 for a sum of Rs.1,38,858/- in favour of the petitioner. The contention of the learned counsel for the respondents that interest on gratuity amount is not payable to the petitioner for the simple reason that "as on the date of appointment of the petitioner 'the Act' was not covered" cannot be accepted, since, as on the date of the resignation made by the petitioner on 28.02.2007 the Act was covered by the 4th respondent including the petitioner. In view of the same, the 4th respondent without murmuring anything about payment of gratuity amount has issued a cheque dated 09.01.2016 to the petitioner for a sum of Rs.1,38,858/-. There is a delay of 8 years 9 months on the part of the respondents in payment of gratuity amount to the petitioner. The contention of the learned counsel for the 3rd and 4th respondents that only on 08.08.2013 the representation was made, therefore, the petitioner is not entitled for any interest on the delayed period is not just 11 and proper in view of the well settled principles of law that as soon as any employee retires, it is obligation on the part of the employer to settle the retirement benefits including gratuity, within a period of 30 days under the provisions of Section 7(3A) of the Payment of Gratuity Act and Rules, 1972, which has not been done in the present case.
12. Admittedly, the gratuity amount is not bounty, it is a fundamental right of a retired person and it is the duty of an employer to pay the same without dragging the retiring person before the Court. The conduct and attitude of the respondents clearly indicate that they have not paid gratuity amount till the petitioner approached this Court on 18.02.2014 and the respondents thereafter opened their eyes and paid the gratuity amount under the provisions of Gratuity Act only on 09.01.2016. There is no dispute with regard to 12 payment of gratuity amount to the petitioner. When the payment of gratuity is not disputed by the respondents, it is obligation on them to pay the interest as contemplated under the provisions of Section 7(3A) of the Gratuity Act and Rules and in view of the notification dated 01.10.1987 issued by the Government of India, the respondents are bound to pay the interest for the delayed period.
13. My view is fortified by the Hon'ble Supreme Court considering the retirement benefits and the interest in the case of D.D. TEWARI (DEAD) THROUGH LEGAL REPRESENTATIVES Versus UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND OTHERS reported in (2014) 8 Supreme Court Cases 894 at Para Nos.6 to 8 has held as under:
"6. It is an undisputed fact that the appellant retired from service on attaining the age of 13 superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the respondent employer to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the case of State of Kerala vs. M. Padmanabhan Nair reported in (1985) 1 SCC 429. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.14
7. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, we do not propose to do that in the case in hand.
8. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed."15
14. In view of the aforesaid reasons, the point raised in the present writ petition is held in the affirmative holding that the petitioner is entitled for the interest on the delayed period from 28.03.2007 till 09.01.2016 at the rate of 9% per annum.
15. For the reasons stated above, writ petition is allowed in part. The respondents 3 and 4 are directed to pay interest at the rate of 9% per annum from 28.03.2007 till 09.01.2016 on the principal amount of Rs.1,38,858/- within a period of 3 months from the date of receipt of certified copy of this Order.
Ordered accordingly.
Sd/-
JUDGE SBS*