Tikendra Singh and 94 Ors v. State of Meghalaya and 2 Ors

J U D G M E N T

¶1This is an application under Article 226 of the Constitution of India with a prayer for necessary directions to the respondent authorities to pay interest on delayed payment of gratuity which was received by the petitioners and/or their legal heirs.

¶2Mr. A. Khan, learned counsel for the petitioners has submitted that the petitioners No. 1 to 79 are retired employees and the petitioners No. 80 to 95 are the legal heirs of some of the deceased employees of the respondent No. 2/MECOFED.

¶3According to the learned counsel, the background fact situation of the case is that the Government of Meghalaya has formulated a scheme called the "Voluntary Retirement Scheme/Golden Handshake Scheme" for the employees of the MECOFED which was duly accepted by the petitioners herein.

¶4It is also submitted that the petitioners then claimed for gratuity and leave encashment which was denied to them. Being aggrieved, the petitioners then filed two writ petitions, being WP(C) No. 320(SH) of 2010 for grant of leave encashment and WP(C) [SH] No. 154 of 2012 for payment of gratuity under the Payment of Gratuity Act, 1972.

¶5The Hon'ble Gauhati High Court (Shillong Bench) [as this Court then was] disposed of WP(C) [SH] No. 154 of 2012 with a finding that the Payment of Gratuity Act, 1972 is applicable to the MECOFED and the respondents therein were accordingly directed to make payment of the same to the petitioners therein, who are also the petitioners herein.

¶6The decision in WP(C) [SH] No. 154 of 2012 was assailed before the Division Bench of this Court, after which on being denied relief, a Special Leave Petition (Civil) Dairy No. 35923/2017 was preferred before the Hon'ble Supreme Court and the same was disposed of vide order dated

02.04.2018 when an assurance was given that those persons who have sought voluntary retirement under the Voluntary Retirement Scheme/Golden Handshake Scheme will be paid gratuity.

¶7The learned counsel has further submitted that the Government has accordingly sanctioned the amount payable as gratuity to the petitioners on the strength of a communication from the Deputy Secretary to the Govt. of Meghalaya to the Registrar of Cooperative Societies, Meghalaya, dated 02.05.2018, following which the amount due was received by them.

¶8The learned counsel has, however, submitted that since there was a delay in the payment of gratuity to the petitioners, they are accordingly

entitled to interest on such period of delay as it is the statutory right provided under Section 7 (3A) of the Payment of Gratuity Act, 1972. The period of delay, if calculated would come to about 15 years, that is, from the date of their being entitled to the same.

¶9In support of his contention, the learned counsel has placed reliance on the case of Abdul Kazi Rahman v. GHADC wherein vide judgment dated 18.04.2017 this Court in WP(C) No. 324 of 2016 at para 4, 9, 16, 18 and 19, in the facts and circumstances of the case, has observed and held that the petitioners are entitled to interest on the delayed payment of gratuity as provided under Section 7 (3-A) of the Payment of Gratuity Act.

¶10The learned counsel has also cited the following authorities in support of the case of the petitioners: i. A.J. Randhawa Supdg. Engineer(Retd.) v. State of Punjab and Others, (1997) 2 CLJ(Service) 324, para 10, 11, 12, 13, 14, 17 & 18; ii. Karnail Singh v. The General Manager Bishrampur Area of SECL & Ors., Writ Appeal No. 56 of 2017, order dated

17.03.2017 passed by the High Court of Chhattisgarh, para

3.1, 3.2, 3.3, 3.4, 3.5, 8, 9, 10, 11, 12, 16, 17, 22, 29, 30, 31 & 33.

¶11Per contra, Mr. P. Yobin, learned counsel for the respondent/MECOFED, the principal respondent herein would submit that firstly, there has never occasioned any delayed payment of gratuity to the petitioners herein inasmuch as the direction of the Hon'ble Supreme

Court vide its order dated 02.04.2018 in Special Leave Petition (Civil) Dairy No. 35923 of 2017 has directed that the payment of gratuity to the petitioners herein amongst others, be made within one month of the said order. The said direction was duly complied with, the same being admitted by the petitioners and as such, there is no issue of payment of interest on the alleged delayed payment of such gratuity.

¶12Another contention raised by the learned counsel for the respondent/MECOFED is that the petitioners, except the petitioner No. 1, who has accepted the payment made under the golden handshake scheme under protest, have all done so without any protest and with a written undertaking that they have voluntarily accepted the same without any conditions.

¶13Apart from the fact that the petitioners have concealed this information about them having received the money without any conditions, they have also since retired from service from the year 2004 after opting for the Voluntary Retirement Scheme/Golden Handshake Scheme. Thereafter, having approached this Court for grant of gratuity, which matter have travelled right upto the Supreme Court, throughout the 18 years of litigation, there was no prayer or whisper for grant of interest on such alleged delayed payment of gratuity.

¶14The claim of interest after a lapse of 18 years is accordingly hit by the principle of delay and laches and under such circumstances, the principle of constructive resjudicata will operate against the petitioners, further submits the learned counsel.

¶15Mr. N.D. Chullai, learned AAG appearing for the State

respondents No. 1 and 3 respectively has effectively endorsed the submission of the learned counsel for the respondent/MECOFED.

¶16This Court has given careful consideration of the case of the parties presented herein. As could be understood, the petitioners have admitted to have received the gratuity after it was sanctioned on

02.05.2018, pursuance to the order of the Hon'ble Supreme Court dated

02.04.2018. The petitioners have now approached this Court with a demand for payment of interest on delayed payment of gratuity.

¶17The observation of the Apex Court in the case of State of Kerela & Ors. v. M. Padmanabhan Nair reported in (1985) 1 SCC 429 at para 1 would be relevant in the context of the case of the parties before this Court. The same reads as follows: "1. Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment."

¶18In the case of payment of gratuity, the provisions of the Payment of Gratuity Act, 1972 being applicable an employee on his retirement becomes entitled to retiral benefits, gratuity being one of such benefits. In this regard, the provision of Section 7, particularly sub-Section 3 and (3A) is required to be looked into, the provision is therefore reproduced as follows: "7. Determination of the amount of gratuity.–(1) A person who is eligible for payment of gratuity under this Act or any person

authorised, in writing to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

(2) … [(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.]"

¶19It may also be pointed out that the proviso to sub-Section (3A) of Section 7(supra) speaks of two exceptions upon which payment of interest will be denied, the first being the fault of the employee for the delay of such payment and the second is if the employer has obtained permission from the controlling authority for the delayed payment.

¶20As has been recounted by the petitioners, the claim of gratuity dates back to the year 2004, when related representation was filed before the appropriate authority claiming payment of gratuity. Without going into details as to what transpired thereafter, suffice it to say that after a long drawn legal battle reaching upto the Supreme Court, apparently, on a concession by the respondent/MECOFED, the Hon'ble Supreme Court was pleased to pass the order dated 02.04.2018 directing that the amount of gratuity be paid within a period of one month from the date of such order.

¶21It is also an admitted fact that the amount meant for payment of gratuity to the petitioners herein was sanctioned by the concerned authority and was communicated vide letter No. COD.55/2004/Pt./1294 dated 02.05.2018, which was duly received by the petitioners.

¶22What is observed herein is that the petitioners are party and were also present or duly represented in the proceedings before this Court as well as before the Hon'ble Supreme Court when the issue of payment of gratuity was under consideration by the courts. Crucially, on the date of hearing before the Hon'ble Supreme Court, that is, on 02.04.2018, when direction for payment of gratuity was issued, that date is seen as the day on which the order for payment of gratuity was issued. That the appropriate authority made payment of the same about a month or so later, thus complying with the direction of the Hon'ble Supreme Court, it can safely be assumed that there was no delay in such payment of gratuity. In fact, by making payment within the stipulated one month's period, the provision of Sub-Section 3 of Section 7 of the Payment of Gratuity Act has been complied with.

¶23Even if the above is found not tenable, the other factor that has to be considered is that during the hearing of the matter before the High Court or even before the Supreme Court, the petitioners have not made any prayer for grant of interest on any alleged delayed payment of gratuity. After having received the amount of gratuity in the year 2018, the petitioners have approached this Court with a prayer for grant of such interest only in the year 2021, without any explanation of why they have approached this Court after three years. Though there is no limitation period for filing of a writ petition under Article 226 of the Constitution of

India, yet if there is no satisfactory explanation of the delay in filing such petition, the principle of delay, laches and acquiescence will come into play, which is seen in the case herein.

¶24Though there is no quarrel as regard the applicability of the provision of Section 7(3) and (3A) of the Payment of Gratuity Act, 1972 as to its mandatory and statutory nature, however, from what has been indicated hereinabove regarding the conduct of the petitioners throughout the related proceedings, the first exception found in the proviso to sub-Section (3A) of Section 7 pointing to the fault of the employee can be deemed to be applicable in this instant case.

¶25The authorities relied upon by the petitioners are valid and could not be controverted as to the law and ratio laid down therein, however, the same could not be applied to the case in hand under the peculiar facts and circumstances present.

¶26This Court is, therefore, in agreement with the contention and submission of the learned counsel for the respondent/MECOFED and accordingly, no merit is found in this case. The same is hereby dismissed.

¶27Petition disposed of. No costs. Judge

Meghalaya

08.03.2024 "Tiprilynti–PS"

Serial No. 01 Supplementary List HIGH COURT OF MEGHALAYA AT SHILLONG WP(C) No. 317 of 2021 Date of Decision: 08.03.2024 1. Shri. Tikendra Singh 2. Shri. W.C.Pakyntein 3. Shri. A.A.Sangma 4. H.B.Passah 5. Shri. Sravan Sonal 6. Shri. Benjamin Khyriem 7. Shri. Mingnan Marak 8. Shri. R.H. Kharpran 9. Shri. Nazrul Islam 10. Shri. T.S.Marwein 11. Smti. Edencia Pathaw 12. Shri. Johny M.R.Marak 13. Shri. Lumlang Kynter 14. Shri. Elias Lamare 15. Smti. Music Nongtdu 16. Shri. Synran Sohtun 17. Smti. Womra Mukhim 18. Shri. Sisir Kumar Das Roy 19. Shri. Robert M Jyrwa 20. Smti. Phidiar Kharjana 21. Smti. Ambrosina Ksing 22. Shri. Jogodish Momin 23. Smti. Phinolis Khyriem 24. Smti. Maffulda Sohklet 25. Shri. Phormimg Lyngdoh 26. Smti. Monica Shullai 27. Smti. Bonsimai Kharmuti 28. Smti. Litri Shabong 29. Smti. S. Shangdiar 30. Shri. Gohen Sangma 31. Smti. Pilorina Sangma 32. Shri. Jinathson A Sangma 33. Smti. Andromery Rodborne 34. Shri. Peterson Sangma 35. Shri. Biren Lamin 36. Shri. Rorence Marak 37. Shri. Joslin Sangma 38. Shri. Niralson Marak 39. Shri. Kallendra Marak 40. Shri. Stanford Phanwar 41. Shri. Ruseng Marak 42. Shri. Blinder Marak 43. Shri. Supendra R. Marak 44. Smti. Midil Dkhar 45. Smti. Rita Ch. Marak 46. Smti. Hatmon Lyngdoh 47. Shri. Jrim S. Nongdhar 48. Smti. Jentilia Sangma 49. Shri. Sonaki Kyndiah 50. Shri. G.D. Koch 51. Smti.Abrilla B.Marak 52. Shri.Samuel Reenborne 53. Smti. Kalpana Momin 54. Smti. Sujola Marak 55. Shri. Devaswar Sarkar 56. Shri. Akramuz Zaman 57. Shri. A.K. Marbaniang 58. Shri. Fristhing Marak 59. Smti. Pdianglin Phanbuh 60. Smti. Millianda Shylla 61. Smti. Amy.H. Syiem 62. Smti. Marlyn Kharumlong 63. Smti. Justina Nongkynrih 64. Smti. Dorisnora Lyngdoh 65. Smti. Esther Dkhar 66. Shri. Bosterwell Marbaniang 67. Smti. Monica Pohrmen 68. Shri.Khlainbor B Palle 69. Smti. Perinda Mukhim 70. Smti. Mildred Kharmuti 71. Shri. Sunolsing Sangma 72. Smti.Geovita Bamon 73. Shri.A.H.Lyngdoh 74. Shri. Wilzeng M Sangma 75. Shri. Wanbha Kharumnuid 76. Shri. Ivanhoe Dkhar 77. Shri. Wilson Lamare 78. Shri. Kishan Sonar 79. Smti. Deborah Betsy Giri 80. Smti. Pramita Shabong w/o (Lt) Theopilus Langstieh 81. Smti. Edwa F. Jyrwa D/o(Lt) Switlina Jyrwa 82. Smti. Miracle Paswet D/o.(Lt.) Diangtimon Paswet 83. Smti. Miracle Lyngwa S/o.(Lt) M.K. Raswai 84. Smti. Henantha N. Marak Successor of (Lt.)Winder Sangma 85. Smti. Rani W/o.(Lt.) N.Nongseij 86. Smti. Sirbilis Syiemlieh W/o.(Lt) Dmut Mawlong 87. Smti. Philomina Nongsiej W/o.(Lt.) Arsetsing Kharumnuid 88. Smti. Nasib Bany Nongbet D/o. (Lt.)Md. Mohammed Azam 89. Smti. S.Ch. Marak W/o.(Lt.)Pranton Sangma 90. Smti. Kynti Mary Marwein W/o. (Lt.)Willis Wahlang 91. Smti. Tina Rani W/o.(Lt.)Narbir Chettri 92. Smti. R. Dkhar W/o (Lt.) Ram Bahadur Mongor 93. Smti. Dipali Nag W/o.(Lt.) Sunal Nag 94. Deovalenty Lyngdoh D/o.(Lt.) Elbina Lyngdoh 95. (Lt.) Arsent Ch. Marak All Care of M/s MECOFED, Lumdiengjri and represented by Shri. Tikendra Singh presently residing at Umpling, East Khasi Hills District, Shillong :::::::::: Petitioners -VERSUS- 1. State of Meghalaya represented by the Commissioner and Secretary, Cooperation Department, Govt. of Meghalaya. 2. Managing Director, Meghalaya Cooperative Marketing and Consumer Federation (MECOFED), Lumdiengjri, Shillong. 3. The Registrar of Co-operative Societies, Govt. of Meghalaya, Shillong. :::::::::: Respondents Coram: Hon'ble Mr. Justice W. Diengdoh, Judge Appearance: For the Petitioner/Appellant(s) : Mr. A. Khan, Adv. For the Respondent(s) : Mr. N.D. Chullai, AAG with Mr. E.R. Chyne, GA (For R 1 & 3) Mr. P. Yobin, Adv. with Ms. I. Laloo, Adv. (For R 2) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: