Gujarat High Court
Paschim Gujarat Vij Company Ltd vs Harkantbhai Atmaram Pandya on 26 July, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1497/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1497 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PASCHIM GUJARAT VIJ COMPANY LTD
Versus
HARKANTBHAI ATMARAM PANDYA
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Appearance:
MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1
MS R.R. GURU, AGP (1) for the RESPONDENT(s) No. 3
MR BHAVESH P TRIVEDI(2731) for the RESPONDENT(s) No. 1
MR RR TRIVEDI(941) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 26/07/2018
ORAL JUDGMENT
1. Heard Mr.Dave, learned advocate for the petitioner and Mr.Trivedi, learned advocate for the respondent.
2. In present petition, the petitioner has Page 1 of 13 C/SCA/1497/2015 JUDGMENT challenged the order dated 5.3.2014 passed by the Controlling Authority and the order dated 30.9.2014 passed by the Appellate Authority.
3. So far as factual background is concerned, the petitioner has averred and stated that:
"2.1 By way of present petition, the petitioner seeks to challenge absolutely illegal and unjust order dated 05.03.2014 passed by Controlling Authority and Assistant Commissioner Labour in Gratuity Application No.04 of 2013 as well as order dated 30.09.2014 passed by Appellate Deputy Commissioner of Labour in Appeal No.44 of 2014. Copies of orders dated 05.03.2014 and respondent Nos.2 and 3 respectively are annexed herewith and marked as ANNEXUREA Collectively with this petition.
2.2 The respondent No.1 was serving as Account Officer with Circle Office, Paschim Gujarat Vij Company Limited, Porbandar. The respondent No.l came to be retired with effect from 31.12.2009 as Account Officer pending contemplated inquiry against him. The respondent No.1 was issued 04.10.2012 after issuing him show cause notice and after considering his reply. A copy of chargesheet issued to the respondent No.l dated 04. 10.2012 along with article of charges and statement of allegations is annexed herewit marked as ANNEXUREB. It is submitted that in the departmental inquiry charges against respondent No. 1 were roved and he was inflicted punishment of recovery of Rs.01,50,000/ from his retirement dues with effect from 12.11.2013.
2.3 It is submitted that since inquiry was respondent No.l's retirement dues were withheld. It is submitted that while respondent No. 1 was in service, respondent No.l had taken housing loan and while taking loan, respondent No.1 had given undertaking in terms of clause 11 (5) of the HBA Regulations that he agrees to get adjusted amounts of interest on HBA sanctioned by the Board (then Gujarat Electricity Board) as well as balance contemplated, of principal of HBA 10an (if not recovered in full) from the payment or service gratuity payable at the time o his retirement / superannuation / resignation. A undertaking given by respondent No.1 is annexed herewith copy of and marked as ANNEXUREC. 2.4 It is submitted that since at the time of retirement of respondent No.1 the respondent No.1 had not paid loan as per the undertaking given by respondent No.1, amount of Rs. 64,203 by deducting Rs. 64,203/, amount of Rs.02,85,737/was offered to respondent No. 1 on 02.01.2014. Since respondent No.1 refused to take the amount, petitioner made fixed deposit of the said amount in nationalize bank. It is submitted that subsequently respondent No. 1 filed application before the Controlling said of Authority inter alia claiming amount gratuity with interest.
2.5 Without considering the facts of the case as also the
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fact that during the pendency of disciplinary proceedings the petitioner has right to withheld gratuity amount of respondent No.1 as also without appreciating the fact respondent No.1 had given undertaking to get deducted housing loan amount from his gratuity amount, the Controlling Authority by its order dated 05.03.2014 directed the present petitioner to make payment of Rs.03,50,000/to respondent No.1 with 10% interest from 01.02.2010 until its payment.
2.6 After the order of the Controlling Authority the petitioner made payment of Rs.03,50,000/ to respondent No.1 on 05.04.2014 and an amount of Rs. 01,46, 521/ came to be deposited before the Controlling Authority towards interest amount. After depositing the said amount, petitioner preferred Appeal before the Appellate Authority under Section 7(7) of the Payment of Gratuity Act. A copy of Appeal Memo filed by the petitioner is annexed herewith and marked as ANNEXURED. 2.7 It is at this stage pertinent to note that petitioner has filed Regular Civil Suit No.133 of 2014 in view of the fact that respondent No.1 refused to make payment of housing loan amount and the said Civil Suit is pending adjudication before the learned Senior Civil Judge, Porbandar."
4. From the said narration, it emerges that the respondent herein was in service with the petitioner company. At the relevant time, the respondent was serving as Accounts Officer, ClassI. He attained age of superannuation in December 2009. At the relevant time, certain proceedings of domestic enquiry were pending against the respondent. In that view of the matter, the Competent Authority of the petitioner passed order and permitted the respondent to retire from service subject to the condition that the enquiry proceedings will continue. Consequently, the respondent retired from service, on superannuation, subject to the Page 3 of 13 C/SCA/1497/2015 JUDGMENT condition, with effect from 31.12.2009. 4.1 In view of the fact that at the relevant time, the said proceedings were pending, the petitioner did not release the amount payable towards gratuity.
4.2 Instead, the amount payable towards gratuity was (as observed in the order passed by the Controlling Authority) deposited in Fixed Deposit with the clarification that the amount shall be paid on conclusion of the domestic enquiry and subject to the order of Disciplinary Authority. 4.3 Another fact which emerges from the record is that before the respondent retired from service, he had availed House Building Allowance. 4.4 According to the petitioner, the amounts due and payable towards repayment of the said loan were not paid by present respondent and a sum of Rs.64,203/ was required to be recovered from the petitioner towards unpaid interest in respect of the said HBA.
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C/SCA/1497/2015 JUDGMENT 4.5 In that view of the amount, after deducting / adjusting the said amount of Rs.64,203/, the petitioner deposited Rs.2,85,797/ in Fixed Deposit.
4.6 Since the petitioner did not pay the amount to the respondent, the respondent somewhere in 2013 instituted proceedings before the Controlling Authority and demanded gratuity. The said application was registered as Gratuity Application No.4 of 2013.
4.7 The petitioner herein opposed the said application on various grounds, including the objection on the ground that the application was not filed within prescribed time limit and therefore, the said belated application should not be entertained. The petitioner also opposed the application on the ground that the applicant had, while availing the loan (HBA), given declaration and undertaking that if any unpaid amount towards HBA / interest remains unpaid at Page 5 of 13 C/SCA/1497/2015 JUDGMENT the time of retirement / superannuation / resignation, then such amount may be recovered / adjusted from gratuity and that, therefore, the claim application is not maintainable. 4.8 The authority did not accept the contentions and allowed the application vide order dated 5.3.2014 and directed the petitioner to pay Rs.3,50,000/ towards gratuity with interest 10%. 4.9 Since at the relevant time upper limit for payment of gratuity was fixed, under the Act, at Rs.3,50,000/, the Controlling Authority restricted the amount payable towards gratuity to Rs.3,50,000/.
4.10 At this stage, it is necessary to note that the Controlling Authority directed the petitioner to pay interest @ 10% on entire amount of Rs.3,50,000/ with effect from 1.2.2010, without taking into account that Rs.2,85,000/ were already released by the petitioner and the amount was already deposited in Fixed Deposit. Page 6 of 13
C/SCA/1497/2015 JUDGMENT 4.11 In this background, the petitioner felt aggrieved by the order passed by the Controlling Authority. Therefore, the petitioner filed appeal before the Appellate Authority.
4.12 The Appellate Authority registered the present petitioner's appeal against the Controlling Authority's order dated 5.3.2014 as Appeal No.44 of 2014.
4.13 Both sides raised several contentions before the Appellate Authority.
4.14 The Appellate Authority disposed the appeal vide order dated 30.9.2014. The Appellate Authority made minor modification in the Controlling Authority's order inasmuch as the Appellate Authority confirmed the order directing the payment of Rs.3,50,000/, however, the Appellate Authority restricted the direction to pay interest and directed that the interest shall be payable @ 10% from 1.2.2010 to 2.1.2014. The Appellate Authority took into account the said Page 7 of 13 C/SCA/1497/2015 JUDGMENT date i.e. 2.1.2014 on the premise that on the said date, the petitioner offered payment of Rs.3,50,000/ to the claimant and that, therefore, interest after said date would not be payable.
4.15 The petitioner is aggrieved by the said two orders. Therefore, present petition.
5. Several contentions are raised by learned advocate for the petitioner against the impugned orders including the contention that in view of the undertaking / declaration given by the respondent, the petitioner is entitled to adjust / recover unpaid amount towards HBA and that since the amount payable towards gratuity i.e. Rs.2,85,797/ and that after adjusting said amount, the amount payable was already deposited in Fixed Deposit which amounts to discharge of petitioner's obligation and that, therefore, any interest could not have been awarded for the period in respect of Rs.2,85,797/ which came to be deposited by the petitioner and the deposit Page 8 of 13 C/SCA/1497/2015 JUDGMENT made by the petitioner (by way of Fixed Deposit in Nationalised Bank) should be treated as discharge of employer's obligation for payment of gratuity and that the direction to pay Rs.3,50,000/ towards gratuity is erroneous and unjustified and in any case, interest could not have been awarded in respect of entire amount from 1.2.2010 etc. According to the petitioner, the Controlling Authority also failed to appreciate that the employer was entitled to recover Rs.64,203/ from the amount payable towards gratuity, in view of the declaration and undertaking given by the respondent while availing HBA.
5.1 On the other hand, the said contentions have been opposed by learned advocate for the respondent who supported the orders passed by the Controlling Authority and the Appellate Authority.
6. In view of the fact that the order passed by the Appellate Authority is unreasoned and non Page 9 of 13 C/SCA/1497/2015 JUDGMENT speaking order. It is not necessary to enter into rival contentions raised by the petitioner and the respondent with regard to respondent's entitlement for gratuity and/or with regard to the amount which would be payable to the respondent towards gratuity and/or about the date from which interest would be payable or even the contention as to whether the employer is entitled to recover / adjust the unpaid amount of HBA from the gratuity amount or not.
7. Even on plain reading of the order passed by the Appellate Authority, it has emerged that in paragraph Nos.1 to 7 of the order dated 30.9.2014 that the Appellate Authority has merely recorded the factual background and submissions and contentions of the appellant. Thereafter, in paragraph Nos.1 to 6, the Appellate Authority has recorded the submissions and objections raised (by way of written submission dated 22.9.2014) by the respondent. Thereafter, the Appellate Authority has reproduced relevant provisions and Page 10 of 13 C/SCA/1497/2015 JUDGMENT the summary of the decisions on which the contesting parties relied. One paragraph is devoted by the Appellate Authority for summarising the submission and the facts and the judicial pronouncement and then the final conclusion is recorded.
7.1 The authority has neither dealt with rival contentions nor decided rival contentions. The reasons for or against the contentions are also not recorded and the impugned order, without recording any reasons whatsoever, is passed by the Appellate Authority.
7.2 Such order cannot be sustained inasmuch as it is completely unreasoned and nonspeaking order and devoid of any reasons. Even rival contentions are not examined, adjudicated and decided. In one line, the Appellate Authority has observed that the order passed by the Controlling Authority is just and proper.
8. In this view of the matter:
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(a) the said order dated 30.9.2014 passed by the Appellate Authority is quashed and set aside on the said limited ground viz. the order being unreasoned and nonspeaking order cannot be sustained.
(b) The said gratuity appeal is remanded to the Appellate Authority for fresh decision on merits after considering material available on record and after dealing with rival contentions.
(c) It is clarified that this Court has not decided rival contentions raised by the petitioner and/or the respondent.
(d) All contentions of both sides are kept open and only on the said limited ground, the order is set aside and the matter is remanded to the Appellate Authority for fresh consideration and fresh decision.
(e) The Appellate Authority shall reconsider the appeal after granting opportunity of hearing to Page 12 of 13 C/SCA/1497/2015 JUDGMENT the petitioner and the respondent.
(f) It will be open to both sides to raise all contentions and objections as may be available in law.
(g) The Appellate Authority shall decide the appeal independently on its own merits in light of the material available on record of the appeal and in accordance with law without being influenced by the previous order which is set aside by present decision.
8.1 Before concluding, it is clarified that since the proceedings are very old, the Appellate Authority shall endeavour to decide the appeal as expeditiously as possible and preferably within three months.
With the aforesaid clarification, the petition is disposed of. Rule is discharged.
Sd/-
(K.M.THAKER, J) BHARAT Page 13 of 13