Madras High Court
V.S. Nithiyanandam vs Tamil Nadu Small Industries ... on 11 April, 2019
Author: P.D. Audikesavalu
Bench: K.K. Sasidharan, P.D. Audikesavalu
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.04.2019
CORAM:
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
and
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
W.A. No. 907 of 2019
V.S. Nithiyanandam ... Appellant/Petitioner
-vs-
Tamil Nadu Small Industries Development Corporation Limited,
Paulwels Road,
St. Thomas Mount,
Chennai - 600 016. ... Respondent/Respondent
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent, praying to
set aside the order dated 16.02.2012 in W.P. No. 14433 of 2007
For Appellant : Mr. K. Selvaraj
For Respondent : Mr. Vijayamehanath for
M/s. Abdul Salem
JUDGMENT
(Judgment of the Court was delivered by P.D. AUDIKESAVALU, J.) The Appellant, who was working as General Manager of the Respondent, attained the age of superannuation on 31.03.1996. However, as disciplinary proceedings had been initiated against the Appellant in charge http://www.judis.nic.in 2 memo dated 04.12.1999 and the Appellant was prosecuted in C.C. No. 23 of 1976 before the Special Court at Chennai at that time, the terminal benefits comprising of gratuity and earned leave had been withheld. Subsequently, he had been discharged by the Special Court by order dated 13.04.1998 in Crl. M.P. No. 65 of 1998 and the disciplinary proceedings against the Appellant was also dropped on 08.05.2001. As the terminal benefits of the Appellant had not been released to hi, even thereafter, the Appellant filed W.P. No. 14433 of 2007 in this Court. When that Writ Petition came up for hearing on 16.02.2012, the Learned Judge, recorded the submission in the Counter Affidavit filed by the Respondent that the aforesaid terminal benefits had been paid to him during the pendency of the Writ Petition and rejected the claim for interest in the light of the facts and circumstances averred by the Respondent and proceeded to dismissed the Writ Petition. Aggrieved by the denial of the interest on the aforesaid terminal benefits, the Appellant has preferred this intra-Court appeal.
2. We have heard Mr. K. Selvaraj, Learned Counsel appearing for the Appellant, Mr. Vijayamehanath, Learned Counsel appearing for the Respondent and perused the materials placed on record, apart from the pleadings of the parties.
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3. The Hon'ble Supreme Court of India in H. Ganghanume Gowda -vs- Karnataka Agro Industries Corporation Ltd., [(2003) 3 SCC 40] and Y.K. Singla -vs- Punjab National Bank [(2013) 3 SCC 472] have reiterated the legal position from Section 7(3A) of the Payment of Gratuity Act, 1972, that if the amount of gratuity payable to an employee within 30 days from the date of cessation of his employment is not paid, there is no discretion to the employer to deny interest which would have to be paid at such rate not exceeding the rate notified by the Central Government from time to time, and the only exception for the same would be:-
(i) when the delay in the payment of gratuity is due to the fault of the employee; and
(ii) the employer has obtained permission in writing from the Controlling Authority under the Payment of Gratuity Act, 1972, for the delayed payment on this ground.
In the absence of having obtained any such permission from the Controlling Authority under the Payment of Gratuity Act, 1972, for the delayed payment of gratuity, the Appellant would be entitled to the gratuity amount due with interest at the rate fixed by the Central Government from time to time under the aforesaid statutory provision.
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4. Insofar as the claim for leave encashment is concerned, it requires to be pointed out that the Hon'ble Supreme Court of India in State of Jharkhand -vs- Jitendra Kumar Srivastava [(2013) 12 SCC 210] has held that earned leave cannot be taken away without any statutory provision meaning thereby that earned leave which is created by statute, partakes the character of an emolument protected as a right to property of the concerned Government Servant under Article 300-A of the Constitution. As such, 'earned leave' could not have been withheld from the date on which the Appellant attained the age of superannuation on the grounds of pendency of disciplinary proceedings and criminal prosecution against him. Hence, we are of the considered view that in the absence of any prohibition under relevant statutory provisions, the Appellant has to be compensated for the delay in payment of earned leave by awarding interest for the same at the rate of 6% per annum from the date on which he attained the age of superannuation till the payment was made.
5. The Respondent is directed to calculate the amount of interest due for the aforesaid terminal benefits in the aforesaid manner and make payment of the same along with working sheet to the Appellant and file a report of http://www.judis.nic.in 5 compliance in that regard before the Registrar (Judicial) of this Court by 30.06.2019.
6. In the upshot, the Writ Appeal is partly allowed and the order dated 16.02.2012 in W.P. No. 14433 of 2007 is modified to the aforesaid extent. No costs.
(K.K. SASIDHARAN, J.) (P.D. AUDIKESAVALU, J.) 11.04.2019 vjt Index: Yes Note: Issue order copy by 16.04.2019.
To Tamil Nadu Small Industries Development Corporation Limited, Paulwels Road, St. Thomas Mount, Chennai - 600 016.
Copy to The Registrar (Judicial) Madras High Court, Chennai - 600 104.
http://www.judis.nic.in 6 K.K. SASIDHARAN, J.
and P.D. AUDIKESAVALU, J.
vjt W.A. No. 907 of 2019 11.04.2019 http://www.judis.nic.in