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SCA/7035/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7035 of 2008
With
SPECIAL
CIVIL APPLICATION No. 5781 of 2008
With
SPECIAL
CIVIL APPLICATION No. 5782 of 2008
With
SPECIAL
CIVIL APPLICATION No. 5882 of 2008
With
SPECIAL
CIVIL APPLICATION No. 6190 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
SHASHIKANT
PRANSHANKER PANDYA - Petitioner
Versus
THE
COLLECTOR & 2 - Respondents
======================================
Appearance
:
MR DS VASAVADA for the
Petitioner.
MR NEERAJ SONI, AGP for Respondent Nos.1 - 2.
MR HS
MUNSHAW for Respondent No.3.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 27/09/2010
ORAL
JUDGMENT
1. As
common question of law and facts arise in all these petitions, they
are being disposed of by this common judgement and order.
2. In
all these petitions, the respective petitioners have prayed for an
appropriate writ, order and/or direction, directing the concerned
respondents to recover an amount as per the respective orders passed
by Controlling Authority under the Payment of Gratuity Act in
Gratuity Application No.77/2006 (Shashikant P. Pandya); Gratuity
Application No.76/2006 (Ripulkant D. Desai); Gratuity Application
No.75/2006 (Ramniklal M. Parmar); Gratuity Application No.88/2006
(Prataprai A. Dave) and Gratuity Application No.25/2006 (Navalbhai C.
Mehta).
3. Mr.Neeraj
Soni, learned Assistant Government Pleader has appeared on behalf of
respondent Nos.1 and 2 and Shri Munshaw, learned advocate has
appeared on behalf of respondent No.3. An affidavit-in-reply is filed
on behalf of respondent Nos.1 and 2 and an affidavit-in-reply is also
filed on behalf of respondent No.3. From the Affidavit-in-reply
filed on behalf of respondent Nos.1 and 2, it appears that in fact
respondent Nos.1 and 2 had on receipt of the Recovery Certificates
tried to recover the amount from respondent No.3, however according
to respondent Nos.1 and 2 as respondent No.3 conveyed to them that
whatever amount due and payable towards pension etc. has been paid to
the petitioners and that they have already approached the State
Government for exemption, respondent Nos.1 and 2 thereafter did not
take any further steps.
4. From
the Affidavit-in-reply filed on behalf of respondent No.3, it appears
that it is the case of respondent No.3 that nothing is due and
payable to the petitioners and, therefore, they are not entitled to
the amount of Gratuity as ordered by the Controlling Authority under
the Payment of Gratuity Act,1972. It is also case on behalf of
respondent No.3 that now on and from 2008-2009, there is an exemption
granted by the State Government in favour of respondent No.3
exempting respondent No.3 from applicability of Payment of Gratuity
Act. However, the fact remains that as on today there are orders
passed by the Controlling Authority under the Payment of Gratuity
Act, 1972 directing respondent No.3 to pay amount of Gratuity to the
respective petitioners and Recovery Certificates have been issued
accordingly by the Controlling Authority. Therefore, unless and until
the orders passed by the Controlling Authority are challenged before
the Appellate Authority and there are any stay order and/or the said
orders are upset neither respondent Nos.1 and 2 nor respondent No.3
can deny to make the payment as per the Recovery Certificate.
Respondent Nos.1 and 2 are not required to adjudicate the dispute and
questions whether the petitioners are entitled to amount of gratuity
or not. Respondent Nos.1 and 2 are required to simply recover the
amount as per the Recovery Certificates which have been issued
pursuant to the orders passed by the Controlling Authority under the
Payment of Gratuity Act,1972. Respondent Nos.1 and 2 are not required
to consider whether the petitioners are entitled to the said amount
or not. Similarly, respondent No.3 also cannot be permitted to say
that petitioners are not entitled to the amount of gratuity as per
the orders passed by the Controlling Authority under the Payment of
Gratuity Act, 1972, unless and until, it is challenged by way of
Appeal before the Appropriate Authority. Without challenging the
same, it will not be open for respondent No.3 to contend the same
that too in the petitions filed by the respective petitioners for
recovery of amount as per the Recovery Certificates. Under the
circumstance, the action of respondent Nos.1 and 2 in not recovering
the amount from respondent No.3 and/or respondent No.3 in not paying
the amount of gratuity as per the Recovery Certificates issued by the
Controlling Authority under the Payment of Gratuity Act,1972 cannot
be sustained and the same deserve to be quashed and set aside and
petitioners are to be paid the amount of gratuity unless it is
challenged by respondent No.3 before the Appellate Authority.
5. In
view of the above and for the reasons stated above, all these
petitions succeed and respondent Nos.1 and 2 are hereby directed to
recover the amount as per the Recovery Certificates issued by the
Controlling Authority under the Payment of Gratuity Act, 1972 from
the respondent No.3 within a period of six weeks from today unless
there is any contrary order passed by the Appellate Authority. Rule
is made absolute to the aforesaid extent in each of the petitions. No
costs.
[M.R.SHAH,J]
*dipti
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