JUDGMENT
Jayant Patel, J.
1. Rule. Mr. Raval appearing for respondent waives service of rule. Withe the consent of learned counsel for parties matter is taken up for final hearing today.
2. The short facts of the case are that the respondent was the employee of the petitioner. The respondent retired from service on 30.11.1998. It is the case of the petitioner that there is a gratuity scheme for the employees of the petitioner and accordingly the respondent was paid the amount of gratuity on the basis of salary of respondent i.e. Rs. 8640/-. After a period of about 3 and 1/2 years the respondent preferred application under Payment of Gratuity Act, 1972 (hereinafter referred to as “the Act”) for recovery of difference of amount of gratuity on the ground that the last wages/salary was Rs. 9690/-p,m. and the difference was also claimed on the basis of amended provisions of Section 4 (inserted by Act 22 of 1987) on the basis that calculation of wages to be made by division of 26 days and not 30 days. Since there was delay in filing the application under the Act for recovery of amount of gratuity, the application for condonation of delay was also made. The petitioner submitted reply to the application for condonation of delay and it is the case of the petitioner that thereafter instead of rendering decision on the application for condonation of delay and thereafter giving opportunity to the petitioner to putforward its case on the main application under the Act, the Controlling Authority passed the order on 17.4.02 whereby together with the application for condonation of delay, the main application is simultaneously decided and the petitioner is ordered to make payment of Rs. 38,215/-being the difference of amount of gratuity with interest at the rate of 10% p.a. from 1.1.1999. The petitioner carried the matter before the appellate authority under the Act and the appellate authority also confirmed the order of the controlling authority. Under the circumstances, the present petition.
3. The opponent has not filed any affidavit in reply and therefore in view of the statement of the petitioner being not controverted on the aspect that the controlling authority has simultaneously decided the application for condonation of delay as well as the main application for gratuity without giving opportunity of hearing the matter is required to be examined accordingly.
4. I have heard Mr. Patel for the petitioner and Mr. Raval for the respondent. As per provisions of Rule 7 the application for gratuity is required to be made ordinarily within 30 days from the date on which the gratuity becomes payable as per Sub-rule (1) of Rule 7 or in the alternative the employee may apply to the employer before 30 days from the date of superannuation and as per Sub-rule (2) of Rule 7 and ordinarily the gratuity shall be paid within 30 days thereafter. However, the power to entertaining the application and to consider the matter are coupled with the power to condone delay. In Sub-Rule (5) it has also been provided that “no claim for gratuity under the Act shall be invalid merely because the claimant failed to present his application within specified period.” Therefore, the intention of the legislature appears to be to consider the matter leniently even for entertaining and considering the application for gratuity. Therefore, it can not be said that the controlling authority has committed any error in condoning the delay for the purpose of entertaining the application for gratuity.
5. However, the contention raised on behalf of the petitioner is that no opportunity of hearing has been given after condonation of delay deserves consideration. It may be that if the authority finds that there are valid reasons for condoning the delay it may condone the delay, but after application for condonation of delay is allowed, the parties are required to be put to notice about the said aspects of condonation of delay and an opportunity is required to be given to both sides on merits of the main application for gratuity. So far as the present case is concerned, as observed earlier, there are no separate orders and in the order of the controlling authority there is simultaneous order of condonation of the delay and for consideration of the main application itself for payment of gratuity. Therefore, it appears that the petitioner was not given opportunity to putforward its case for defending the main application for payment of gratuity after condonation of delay. Since the opportunity has not been given to the petitioner for defending the main application for payment of gratuity, it can be said that the controlling authority has committed jurisdictional error to that extent even after the condonation of delay.
6. Aforesaid aspect is also not properly considered by the appellate authority and therefore as a consequence thereof the order of the appellate authority to extent deserves to be quashed.
7. In view of the aforesaid discussion, petition is partly allowed to the extent that the order of the controlling authority as well as the appellate authority under the Act for condonation of the delay is not interferred with and the order of both authorities so far as it relates to the order for payment of amount of gratuity with interest, are quashed and set aside with further direction that the controlling authority shall give opportunity of hearing to the petitioner herein who is opponent before him to defend the application and shall pass order in accordance with law after giving opportunity of hearing to both sides and the controlling authority shall render decision as early as possible preferably within a period of three months from the date of receipt of writ of this court.
8. Since pursuant to interim order passed by this court on 21.4.03 the amount of Rs. 38,215/-, as per Mr. Patel, is already withdrawn by the respondent workman pending the proceedings of this petition, it is further directed that the respondent shall not be required to redeposit the amount for the present, but such withdrawal shall be subject to final adjustment as per the order which may be passed by the controlling authority as indicated earlier. It will be open to the petitioner to withdraw the balance amount which has been deposited by the petitioner pending the proceedings of appeal before the controlling authority on giving undertaking that the petitioner shall redeposit the amount in case it is so ordered by the controlling authority as an outcome of final decision.
9. Petition is partly allowed to the aforesaid extent and rule is made partly absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.