Calcutta High Court (Appellete Side)Hara Kumar Banerjee vs The Durgapur Projects Limited & Ors on 23 November, 2021Author:Arindam MukherjeeBench:Arindam Mukherjee43\n23.11.2021\n Ct. No.23\n     (PP)\n                        IN THE HIGH COURT AT CALCUTTA\n                       CONSTITUTIONAL WRIT JURISDICTION\n                                APPELLATE SIDE\n                                 WPA 17943 of 2021\n\n                                Hara Kumar Banerjee\n                                       Vs.\n                         The Durgapur Projects Limited & Ors.\n\n                       Mr. Siddhartha Sarkar\n                       Mr. Hirak Roy\n                                  ... For the petitioner\n                       Mr. Sujit Shankar Koley\n                       Mr. S.R. Saha\n                                   ... For the respondentsAffidavit of service filed in Court today is taken on\n             record.The petitioner was an employee in Durgapur\n             Projects Limited (in short "DPL"), the respondent no.1. The\n             petitioner retired from service on 28th February, 2017. The\n             petitioner on his retirement was entitled to payment of\n             gratuity and an amount on account of leave salary\n             aggregating to Rs.14,21,120/-. This figure is not in\n             dispute. The petitioner was paid this amount on 12th\n             September, 2018. The date of payment is also not in\n             dispute. The petitioner says that there has been a delay of\n             about 18 months in making of the said sum of Rs.\n             14,21,120/- on account of gratuity and leave salary. The\n             petitioner, therefor, is entitled to interest for delayed\n             payment of gratuity as per the provisions ofSection 7(3A)of the Payment of Gratuity Act, 1972 (hereinafter referred\n             to as the "said Act") and interest on the same rate on leave\n             salary since the same is part of the retiral benefits.The respondents say that the delay in payment was\n             not intentional but due to the financial stringency of the\n             DPL.2The financial stringency on        the   part   of   the\nemployer (respondent no.1) cannot be a ground in delaying\nthe payment of retiral benefits to a retired employee of the\nrespondent   no.1   which    becomes    due     and    payable\nimmediately upon the retirement of the said employee.Section 7(3A)of the said Act provides for payment of\ninterest for delay in paying the amount on account of\ngratuity which as per the last circular is at the rate of 10\nper cent per annum. This is as such the statutory rate.The respondents say that the rate on account of\ndelayed payment has been considered by the Division\nBench of this Court as also by the Hon'ble Supreme Court.The respondents have relied upon a judgment and\norder of a Division Bench of this Court passed on 11th\nMarch, 2020 in MAT 108 of 2020 with CAN 1249 of 2020\nwith CAN 1250 of 2020 (Krishna Prosad Chatterjee v. The\nDurgapur Projects Limited & Ors.). It appears fromthe\nsaid judgmentand order that by the order impugned\ntherein, the learned Single Judge while disposing of the\nwrit petition had allowed interest on delayed payment of\ngratuity and leave salary at the rate of 5 per cent per\nannum by an order dated 15th November, 2019.In the case before the Division Bench, the employee\nof DPL must have retired prior to 15th November, 2019\nbeing the date of the order of the learned Single Judge and\nthere was a delay in paying him the gratuity and the\namount on account of leave salary. The Division Bench\nafter taking note of the facts allowed 7 per cent interest on\ngratuity from the date of accrual till the date of actual\npayment. So far as the leave salary is concerned, the\nDivision Bench directed payment of the same within six\nweeks from the date of the order passed by the Division\nBench and if the same was paid within such time frame,3the amount on account of leave salary will not attract any\ninterest.I am told that the issue as to payment of leave\nsalary is pending before the Hon'ble Supreme Court at the\ninstance of Krishna Prosad Chatterjee, the employee, as no\ninterest was allowed by the judgment and order of the\nDivision Bench dated 11th March, 2020 on the sum being\npaid within the time frame.On a perusal of a judgment of the Hon'ble Supreme\nCourt reported in 2021 SCC Online SC 237 = 2021 (3)\nSCALE 42 (The State of Andhra Pradesh & Anr. v. Smt.\nDinavahi      Lakshmi       Kameswari)     relied   upon     by   the\nrespondents, it appears that the Hon'ble Supreme Court\nwas considering the issue of deferred salary and pension\nduring the pandemic for which the Andhra Pradesh High\nCourt had directed payment of interest at the rate of 12\nper cent per annum. The Supreme Court taking note of the\npandemic situation reduced the rate of interest from 12\nper cent to 6 per cent both in case of deferred salary as\nalso in the case of deferred payment of pension.This judgment, so far as deferred payment of salary\ndoes not apply to the instant case but so far as it relates to\ndeferred payment of pension, it has some application as\nretiral     benefits   and    pensionery     benefit   are    either\ninterlinked or the same. Even the issue of deferred\npayment of pension in the case before the Hon'ble\nSupreme Court does not match with the facts of the\ninstant case where retiral benefits fell due on 1st March,\n2017 i.e., much before 31st March, 2020 when the first\ncircular was issued by the Andhra Pradesh Government\nowing to the pandemic.The respondents have also referred to few orders\npassed by different learned Judges of this Court sitting4singly.In one of such orders passed on 22nd June, 2021 in\nWPA 10092 of 2021 (Ajit Kumar Chakraborty v. The\nDurgapur Projects Limited & Ors.), a learned Single Judge\nafter considering the judgment of the Hon'ble Supreme\nCourt of India reported in (2008) 3 SCC 44 (S.K. Dua v.\nState of Haryana & Anr.) which held that an employee has\na right underArticles 14, 19and21of the Constitution of\nIndia to claim interest on delayed payment of retirement\nbenefits and the judgment of the Hon'ble Supreme Court\ninSmt. Dinavahi Lakshmi Kameswari(supra) and the\nDivision Bench judgment of this Court inKrishna Prosad\nChatterjee(supra) allowed 6 per cent interest on delayed\npayment of gratuity and leave salary by agreeing with\nanother Single Bench judgment dated 16th April, 2021\npassed on WPA 9030 of 2021.The fact remains that the petitioner was deprived of\nhis dues and DPL having not paid the same in time had\nderived benefit out of such money. The respondents,\ntherefor, is liable to compensate the petitioner for the delay\nin making payment of his retiral benefits by paying interest\non the principal sum for the delayed period. This is also\nstatutorily approved. Even delay in approaching the Court\nfor grant of interest on gratuity and other retiral benefits\nhas been held by the Hon'ble Supreme Court to be not\nfatal inUnion of India v. Tarsem Singhreported in (2008) 8\nSCC 648.Considering       the   judgment     inSmt.   Dinavahi\nLakshmi Kameswari(supra),Krishna Prosad Chatterjee(supra) and the order of the learned Single Judgereferred\nto above, an acceptable formula can be culled out by\nconsent of the parties. The petitioner agrees to receive\ninterest on account of delayed payment of gratuity and\nleave salary at the rate of 6 per cent per annum and the\nrespondents agree to pay such interest both on account of\ndelayed    payment      of    gratuity   and   leave   salary. The5respondents also undertake to pay the interest on account\nof delayed payment of gratuity and leave salary from 1st\nMarch, 2017 being the date of accrual till 12th September,\n2018, being the date of actual payment at the rate of 6 per\ncent per annum within four months from date.On the basis of such consensus, the respondent\nno.1 is directed to pay interest to the writ petitioner at the\nrate of 6 per cent per annum on Rs.14,21,120/- being the\namount on account of gratuity and leave salary calculated\non and from 1st March, 2017 till 12th September, 2018\nwithin a period of four months from the date of\ncommunication of a photostat certified copy of this order\nand in default statutory rate of 10 per cent will be\nattracted on the entire amount from 1st March, 2017 to\n12th September, 2018.Nothing further remains to be adjudicated in this\nwrit petition. The same is disposed of accordingly without\nany order as to costs.Since   I   have   not   called   for   any   affidavits,\nallegations made in the writ petition are deemed to have\nnot been admitted by the respondents.Urgent photostat certified copy of this order, if\napplied for, be given to the parties, upon compliance of\nnecessary formalities.(Arindam Mukherjee, J.)