Shri. Lasanna Venkanna Dharap (Since Decd) through Lrs, Smt. Ammai Lasanna Dharap Vs the General Manager, Kohinoor Mills and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.2811 OF 2014

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Lasanna Venkanna Dharap
since deceased through LR.
Smt.Ammai Lasanna Dharap
vs.

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...Petitioner

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The General Manager,
Kohinoor Mills & Ors. ...Respondents

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Mr.Vivek Walavalkar a/w Vishwajeet Kapse a/w Rajesh
Dharap I/b Ajit Kenjale for the Petitioner
Ms Kumud Bhatia I/b Ms Meena H. Doshi for the
respondent No.1
Mr.P.P.More, AGP for respondent No.3

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CORAM : A.S.OKA, &
 SANDEEP K. SHINDE, JJ.
 DATE : DECEMBER 4, 2018

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ORAL JUDGMENT: (PER A.S.OKA,J.)

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1Rule. The learned counsel for the first
respondent waives service. The learned AGP waives
service for the third respondent. Considering the
narrow controversy involved in this petition, the
same is forthwith taken up for final hearing.

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2On an application made by the petitioner under
section 7(4) of the Payment of Gratuity Act,1972 and
the Rules framed thereunder, the Controlling
Authority under the said Act of 1972 passed an order
directing the first respondent to pay gratuity with
interest thereon. The operative part of the order
dated 12th January 2009 passed by the Controlling

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Authority reads thus:

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“(1) That the application filed by the applicant is allowed.

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(2) That the opponent is directed to pay the gratuity to the Applicant along with interest as under:Rs.15,943.70+10% interest per annum with effect from 30 days from the date of relieving i.e 20.6.1984 to the actual date of payment.

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(3) Both the parties shall bear their own costs.”

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3The prayer in this petition under Article 226
of the Constitution of India is for issuing a writ
of mandamus directing the first respondent to comply
with the order dated 12th January 2009. The
contention raised in the petition is that though
amount of Rs.36,857.40 was paid to the original
petitioner, the entire amount due and payable is not
paid. The petitioner therefore made an application
dated 17th April 2014 to the first respondent calling
upon the first respondent to pay the balance
amount.

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4A reply has been filed to this petition by Shri
Prabhashankar Rajai Mishra, Assistant Manager
(Administration) of the first respondent. The stand
taken in the reply was that as the gratuity amount
payable to the petitioner was quantified at
Rs.15,943.70, as per the second proviso to section 8
of the said Act of 1972, there is a ceiling on the
payment of interest and therefore, maximum amount of
Rs.15,943.70 is payable by way of interest and the
payment of interest over and above the said amount

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cannot be made.

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5We have heard the learned counsel for the
parties. The stand of the first respondent is that
though the order dated 12th January 2009 directs the
total payment of interest at the rate of 10% per
annum from the expiry of the period of 30 days from
20th June 1984 till the actual date of payment,
interest as directed is not payable as there is a
ceiling on payment of interest and the interest
amount cannot exceed the amount of gratuity payable.

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6We fail to understand the logic of such a
stand. The first respondent has not challenged the
order dated 12th January 2009 and therefore, cannot
raise the contention that the first respondent is
not liable to pay the amount of interest as per the
said order which binds the first respondent.
Therefore, there is no option for the first
respondent but to pay the entire amount of interest
as directed.

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7The learned counsel for the petitioner
submitted that even the aspect of correct
calculation of interest be gone into, as there is
every possibility that the first respondent will
make a default by failing to pay the entire amount.
We do not agree with the said submission. Once
there is a direction by this Court to pay interest
as per the order dated 12th January 2009, the first
respondent who is the General Manager of Kohinoor
Mills Unit of National Textile Corporation cannot

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take a risk of committing the breach of the order of
this Court. The petitioner has already submitted his
calculations along with a letter dated 17th April
2014 which will be looked into by the first
respondent.

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8Hence, the petition must succeed and we pass
the following order:

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(I) We direct the first respondent to pay to the
petitioner balance amount payable as per the order
dated 12th January 2009 (Exhibit C to the petition).
We make it clear that the interest at the rate of
10% p.a will be payable by the first respondent with
effect from the expiry of period of 30 days from 20th
June 1984 till the date of payment of the principal
amount;

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(II) We also make it clear that the contention of
the first respondent that interest exceeding the
principal amount is not payable stands rejected and
the first respondent is under an obligation to pay
interest strictly in terms of the order dated 12th
January 2009;

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(III) The balance amount of interest payable shall
be paid by the first respondent to the petitioner
within a period of one month from the date on which
this Judgment is uploaded. While determining the
balance amount, the first respondent shall take into
consideration calculations submitted by the
petitioner along with application dated 17th April

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2014 (Exhibit-A to the petition);

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(IV)Rule is made absolute on above terms with no
order as to costs.

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(SANDEEP K.SHINDE,J.) (A.S.OKA,J.)

Shri. Lasanna Venkanna Dharap (Since Decd) through Lrs, Smt. Ammai Lasanna Dharap v. the General Manager, Kohinoor Mills and Ors.

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Shri. Lasanna Venkanna Dharap (Since Decd) through Lrs, Smt. Ammai Lasanna Dharap v. the General Manager, Kohinoor Mills and Ors.

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