# Jitendra Kandwal v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-08
- **Case number:** Writ -A No. 6187 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kandwal-v-state-of-u-p-ors-51109
- **Pages:** 7

## Headnote

A. Service Law - Gratuity - Payment of
Gratuity Act, 1972 - Section 7 - Payment
of Gratuity (Central) Rules, 1972 - Rule 7 -
The word used in Rule 7(1) of the Rules
1972 is "may" meaning thereby that it is
open for the employee to either apply for
payment for gratuity or not. Once Section
7(2) of Act, 1972 itself stipulates that
irrespective of an employee applying for
gratuity or not the gratuity would become
payable and that the said amount is to be paid
in terms of Section 7(3) of Act, 1972 within
thirty day of the same becoming payable then
irrespective of Rule 7 of the Rules, 1972 which
gives a discretion to the employee concerned to
apply for gratuity or not under provisions of Act,
1972 the gratuity would in fact become payable
and due and thus no application in this
regard would be required to be submitted
by the employee. (Para 17)

From perusal of Rule 7 of Rules, 1972 it
emerges that Rule 7(1) of Rules, 1972
provides that an employee who is eligible for
payment of gratuity under the Act, 1972
where the date of superannuation or
retirement of an employee is known may
apply to the employer before thirty days
of
the
date
of
superannuation
or
retirement. (Para 16)
11 All. Jitendra Kandwal Vs. State of U.P. & Ors.
587
Petitioner having superannuated on 31.12.2019
and gratuity would fall due on 01.01.2020 and
that u/s 7(3) of the Act, 1972, should have been
paid by 01.02.2020. Gratuity became payable to
the petitioner on 01.02.2020 and the same
having been in fact paid to the petitioner on
03.11.2020 the petitioner would be entitled for
being paid interest on delayed payment of
gratuity which interest would be payable as per
the provisions of Section 7(3) of Act, 1972.
(Para 15, 18)

Writ petition allowed. (E-4)

Present petition prays for a writ of
mandamus commanding the respondents
to pay 18% interest on the amount of
gratuity for delayed period from the date
of retirement i.e. 31.12.2019 upto the
date of payment i.e. 05.11.2020.

## Text

586 INDIAN LAW REPORTS ALLAHABAD SERIES
Superintendent of Police, Ballia is hereby
quashed.

22. The respondents - State
authorities, i.e., the Secretary, Department
of Home (Police Section), Government of
Uttar Pradesh, Lucknow, the Secretary, U.P.
Police Recruitment and Promotion Board,
Lucknow, the Superintendent of Police
(Personnel)
Uttar
Pradesh
Police
Headquarter, Allahabad/ Prayagraj and the
Superintendent of Police, District Ballia are
hereby directed to ensure that appropriate
appointment letter is issued to the petitioner
appointing him on the post of Constable in
pursuance to the recruitment notified in
2015 and the petitioner shall be allowed to
join as such. The appointment letter shall
be issued to the petitioner by the competent
authority within a period of one month
from today, and in any case, by 15th
December, 2024.

23. It is clarified that the petitioner
shall be entitled to the service benefits,
including his pay and other allowances as
well as seniority, as a consequence of his
appointment, only with effect from the date
of his joining.

24. With the aforesaid directions
and observations, the writ petition is
allowed.

25. A copy of this order be
communicated to the Secretary, Department
of Home (Police Section), Government of
Uttar Pradesh, Lucknow, the Secretary, U.P.
Police Recruitment and Promotion Board,
Lucknow, the Superintendent of Police
(Personnel)
Uttar
Pradesh
Police
Headquarter, Allahabad/ Prayagraj and the
Superintendent of Police, District Ballia by
the Registrar (Compliance) within ten days
from today.
----------
(2024) 11 ILRA 586
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.11.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ -A No. 6187 of 2024

Jitendra Kandwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Singh

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

A. Service Law - Gratuity - Payment of
Gratuity Act, 1972 - Section 7 - Payment
of Gratuity (Central) Rules, 1972 - Rule 7 -
The word used in Rule 7(1) of the Rules
1972 is "may" meaning thereby that it is
open for the employee to either apply for
payment for gratuity or not. Once Section
7(2) of Act, 1972 itself stipulates that
irrespective of an employee applying for
gratuity or not the gratuity would become
payable and that the said amount is to be paid
in terms of Section 7(3) of Act, 1972 within
thirty day of the same becoming payable then
irrespective of Rule 7 of the Rules, 1972 which
gives a discretion to the employee concerned to
apply for gratuity or not under provisions of Act,
1972 the gratuity would in fact become payable
and due and thus no application in this
regard would be required to be submitted
by the employee. (Para 17)

From perusal of Rule 7 of Rules, 1972 it
emerges that Rule 7(1) of Rules, 1972
provides that an employee who is eligible for
payment of gratuity under the Act, 1972
where the date of superannuation or
retirement of an employee is known may
apply to the employer before thirty days
of
the
date
of
superannuation
or
retirement. (Para 16)
11 All. Jitendra Kandwal Vs. State of U.P. & Ors.
587
Petitioner having superannuated on 31.12.2019
and gratuity would fall due on 01.01.2020 and
that u/s 7(3) of the Act, 1972, should have been
paid by 01.02.2020. Gratuity became payable to
the petitioner on 01.02.2020 and the same
having been in fact paid to the petitioner on
03.11.2020 the petitioner would be entitled for
being paid interest on delayed payment of
gratuity which interest would be payable as per
the provisions of Section 7(3) of Act, 1972.
(Para 15, 18)

Writ petition allowed. (E-4)

Present petition prays for a writ of
mandamus commanding the respondents
to pay 18% interest on the amount of
gratuity for delayed period from the date
of retirement i.e. 31.12.2019 upto the
date of payment i.e. 05.11.2020.

(Delivered by Hon'ble Abdul Moin, J.)

1.

Heard
learned
counsel
for
petitioner, learned Standing Counsel for
respondent no. 1 and Shri Rishabh Tripathi,
learned counsel for respondents no.2 to 4.

2. The instant writ petition has
been filed praying for a writ of mandamus
commanding the respondents to pay 18%
interest on the amount of gratuity for
delayed period from the date of retirement
i.e. 31.12.2019 upto the date of payment
i.e. 05.11.2020.

3. Briefly stated the facts of the
case are that the petitioner retired on
attaining the age of superannuation on
31.12.2019 from service under respondent
no. 2. The gratuity has been paid to the
petitioner on 05.11.2020 and hence the
instant petition for payment of interest.

4. The contention of learned
counsel for the petitioner is that as there is
delay in payment of gratuity to the
petitioner consequently considering the
provisions of the Payment of Gratuity Act,
1972 (hereinafter referred to as the Act,
1972) the respondents are bound to pay
interest for the aforesaid delayed period.

5. On the other hand, Shri Rishabh
Tripathi, learned counsel appearing for the
respondents no. 2 to 4 on the basis of
averments
contained
in
the
counter
affidavit states that as per Section 7 of the
Act, 1972 as well as Rule 7 of the Payment
of
Gratuity
(Central)
Rules,
1972
(hereinafter referred to as the Rules, 1972)
the petitioner had to apply to the
respondents before 30 days of the date of
superannuation or retirement for payment
of gratuity and it is only thereafter that the
liability for making payment of gratuity to
the petitioner by the respondents arises.

6. It is contended that the
petitioner has only applied for payment of
gratuity
after
his
retirement
which
application has been made in the year 2020.
The
Divisional
Logging
Manager,
Najibabad, Bijnor through his letter dated
23.09.2020, a copy of which is annexure
CA-2 to the counter affidavit, wrote to the
Secretary,
E.P.F.
Trust,
U.P.
Forest
Corporation, Lucknow to provide all
relevant
service
documents
of
the
petitioner. Subsequent thereto the petitioner
has been paid the entire amount of gratuity
vide letter dated 19.11.2020. Shri Tripathi
States that the amount of gratuity has been
credited in the account of the petitioner on
03.11.2020. However learned counsel for
the petitioner states that the gratuity has
been credited in his account on 05.11.2020.

7. It is contended that once the
provisions of the Act, 1972 and Rules, 1972
themselves provide for an application to be
made by the employee concerned and in
case the petitioner himself applied for
588 INDIAN LAW REPORTS ALLAHABAD SERIES
payment of gratuity in the year 2020
consequently no error has been committed
by the respondents in making late payment
of gratuity upon the petitioner having
applied for being paid the gratuity belatedly
and thus the gratuity having now been paid
no interest is payable by the respondents.

8. Heard learned counsel for the
parties and perused the record.

9. From the arguments as raised by
learned counsel for the parties and from the
perusal of records it emerges that the
petitioner retired on attaining the age of
superannuation
on
31.12.2019.
It
is
admitted by the parties that payment of
gratuity to the petitioner is governed by
Act, 1972 and Rules, 1972. The gratuity
has been paid to the petitioner on
03.11.2020.

10. In order to consider the
admissibility of interest, if any, to the
petitioner, the Court may have to consider
the relevant provisions of the Act, 1972.

11. Relevant extract of Section 4
of the Act, 1972 reads as under:

"Section: 4 Payment of
gratuity.
(1)
Gratuity
shall
be
payable to an employee on the
termination of his employment after
he has rendered continuous service
for not less than five years, -
(a) on his superannuation,
or
(b) on his retirement or
resignation, or
(c)
on
his
death
or
disablement due to accident or
disease:
Provided
that
the
completion of continuous service of
five years shall not be necessary
where the termination of the
employment of any employee is due
to death or disablement:
Provided further that in the
case of death of the employee,
gratuity payable to him shall be
paid to his nominee or, if no
nomination has been made, to his
heirs,
and
where
any
such
nominees or heirs is a minor, the
share of such minor, shall be
deposited
with
the
controlling
authority who shall invest the same
for the benefit of such minor in
such bank or other financial
institution, as may be prescribed,
until such minor attains majority.]
Explanation. : For the
purposes
of
this
section,
disablement
means
such
disablement as incapacitates an
employee for the work which he,
was capable of performing before
the accident or disease resulting in
such disablement."

12. Section 7 of the Act, 1972
reads as under:

"Section: 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) As soon as gratuity
becomes payable, the employer
11 All. Jitendra Kandwal Vs. State of U.P. & Ors.
589
shall,
whether
an
application
referred to in sub-section (1) has
been made or not, determine the
amount of gratuity and give notice
in writing to the person to whom
the gratuity is payable and also to
the controlling authority specifying
the amount gratuity so determined.
(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 subsection (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.]
(4) (a) If there is any
dispute as to the amount of gratuity
payable to an employee under this
Act or as to the admissibility of any
claim of, or in relation to, an
employee for payment of gratuity,
or as to the person entitled to
receive the gratuity, the employer
shall deposit with the controlling
authority such amount as he admits
to be payable by him as gratuity.
(b) Where there is a dispute
with regard to any matter or
matters specified in clause (a), the
employer or employee or any other
person raising the dispute may
make
an
application
to
the
controlling authority for deciding
the dispute.]
(c)]
The
controlling
authority shall, after due inquiry
and after giving the parties to the
dispute a reasonable opportunity of
being heard, determine the matter
or matters in dispute and if, as a
result of such inquiry any amount is
found
to
be
payable
to
the
employee, the controlling authority
shall direct the employer to pay
such amount or, as the case may be,
such amount as reduced by the
amount already deposited by the
employer.]
(d)
The
controlling
authority shall pay the amount
deposited, including the excess
amount, if any, deposited by the
employer, to the person entitled
thereto.
(e) As soon as may be after
a deposit is made under clause (a),
the controlling authority shall pay
the amount of the deposit - (i) to the
applicant where he is the employee;
or (ii) where the applicant is not
the employee, to the nominee or, as
the case may be, the guardian of
such nominee or] heir of the
employee
if
the
controlling
authority is satisfied that there is
no dispute as to the right of the
applicant to receive the amount of
gratuity.
590 INDIAN LAW REPORTS ALLAHABAD SERIES
(5) For the purpose of
conducting an inquiry under subsection
(4),
the
controlling
authority shall have the same
powers as are vested in a court,
while trying a suit, under the Code
of Civil Procedure, 1908 (5 of
1908), in respect of the following
matters, namely : (a) enforcing the
attendance
of any person or
examining
him
on
oath;
(b)
requiring
the
discovery
and
production
of
documents,
(c)
receiving evidence on affidavits;
(d) issuing commissions for the
examination of witnesses.
(6) Any inquiry under this
section
shall
be
a
judicial
proceeding within the meaning of
sections 193 and 228, and for the
purpose of section 196, of the
Indian Penal Code, 1860 (45 of
1860).
(7) Any person aggrieved
by an order under sub-section (4)
may, within sixty days from the date
of the receipt of the order, prefer an
appeal
to
the
appropriate
Government
or
such
other
authority as may be specified by the
appropriate Government in this
behalf:
Provided
that
the
appropriate Government or the
appellate authority, as the case may
be, may, if it is satisfied that the
appellant
was
prevented
by
sufficient cause from preferring the
appeal within the said period of
sixty days, extend the said period
by a further period of sixty days.
Provided further that no
appeal by an employer shall be
admitted unless at the time of
preferring the appeal, the appellant
either produces a certificate of the
controlling authority to the effect
that the appellant has deposited
with him an amount equal to the
amount of gratuity required to be
deposited under subsection (4), or
deposits
with
the
appellate
authority such amount.]
(8)
The
appropriate
Government
or
the
appellate
authority, as the case may be, may,
after giving the parties to the
appeal a reasonable opportunity of
being heard, confirm, modify or
reverse
the
decision
of
the
controlling authority."

13. Rule 7 of the Rules, 1972 reads
as under.

"7.
Application
for
gratuity.?
(1) An employee who is
eligible for payment of gratuity
under the Act, or any person
authorised, in writing, to act on his
behalf,
shall
apply,
ordinarily
within thirty days from the date the
gratuity became payable, in Form
?I? to the employer:
Provided that where the
date
of
superannuation
or
retirement of an employee is
known, the employee may apply to
the employer before thirty days of
the date of superannuation or
retirement.
(2)
A
nominee
of
an
employee who is eligible for
payment of gratuity under the
second proviso to sub-section (1) of
section 4 shall apply, ordinarily
within thirty days from the date of
gratuity became payable to him, in
Form ?J? to the employer:
11 All. Jitendra Kandwal Vs. State of U.P. & Ors.
591
Provided
that
an
application in plain paper with
relevant particulars shall also be
accepted. The employer may obtain
such other particulars as may be
deemed necessary by him.
(3) A legal heir of an
employee who is eligible for
payment of gratuity under the
second proviso to sub-section (1) of
section 4 shall apply, ordinarily
within one year from the date of
gratuity became payable to him, in
Form ?K? to the employer.
(4) Where gratuity becomes
payable under the Act before the
commencement of these rules, the
periods of limitation specified in
subrules (1), (2) and (3) shall be
deemed to be operative from the
date of such commencement.
(5)
An
application
for
payment of gratuity filed after the
expiry of the periods specified in
this rule shall also be entertained
by the employer, if the applicant
adduces sufficient cause for the
delay in preferring his claim, and
no claim for gratuity under the Act
shall be invalid merely because the
claimant failed to present his
application within the specified
period. Any dispute in this regard
shall be referred to the controlling
authority for his decision.
(6) An application under
this rule shall be presented to the
employer either by personal service
or
by
registered
post
acknowledgement due."

14. From a perusal of Section 4(1)
of the Act, 1972 it is apparent that gratuity
shall be payable to an employee on the
termination of his employment after he has
rendered continuous service for not less
than five years on his superannuation.
Further, from perusal of Section 7(1) of
Act, 1972 it emerges that a person who is
eligible for payment of gratuity under Act,
1972 has to send a written application to
the employer for payment of gratuity.
However Section 7(2) of the Act, 1972
provides that as soon as gratuity becomes
payable, the employer shall, whether an
application referred to in sub-section (1)
has been made or not, determine the
amount of gratuity and give notice in
writing to the person to whom the gratuity
is payable and also to the controlling
authority specifying the amount of gratuity
so determined. Section 7(3) of the Act,
1972 provides that 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. Section 7(3A) of Act, 1972
provides that 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.

15. Thus, it is apparent that under
Section 7(2) of Act 1972 as soon as the
gratuity becomes payable which in this
case considering the provisions of Section
4(1) of the Act, 1972 would be payable on
the superannuation of the petitioner, he
having superannuated on 31.12.2019 and
thus would fall due on 01.01.2020 the
employer shall, whether an application by
the person concerned has been made or not,
determine the amount of gratuity and that
under Section 7(3) of the Act, 1972 the
592 INDIAN LAW REPORTS ALLAHABAD SERIES
employer shall arrange to pay the amount
of gratuity within 30 days from the date it
becomes payable, in this case having
become payable on 01.01.2020, which
should have been paid by 01.02.2020.

16. From perusal of Rule 7 of
Rules, 1972 it emerges that Rule 7(1) of
Rules, 1972 provides that an employee who
is eligible for payment of gratuity under the
Act, 1972 where the date of superannuation
or retirement of an employee is known may
apply to the employer before thirty days of
the date of superannuation or retirement.

17. The word used in Rule 7(1) of
the Rules 1972 is "may" meaning thereby
that it is open for the employee to either
apply for payment for gratuity or not. Once
Section 7(2) of Act, 1972 itself stipulates
that irrespective of an employee applying
for gratuity or not the gratuity would
become payable and that the said amount is
to be paid in terms of Section 7(3) of Act,
1972 within thirty day of the same
becoming payable then irrespective of Rule
7 of the Rules, 1972 which gives a
discretion to the employee concerned to
apply for gratuity or not under provisions
of Act, 1972 the gratuity would in fact
become payable and due and thus no
application in this regard would be required
to be submitted by the employee.

18. Keeping in view the aforesaid
discussion as well as considering the
mandatory provisions of Act, 1972 it is thus
apparent that gratuity became payable to
the petitioner on 01.02.2020 and the same
having been in fact paid to the petitioner on
03.11.2020 the petitioner would be entitled
for being paid interest on delayed payment
of gratuity which interest would be payable
as per the provisions of Section 7(3) of Act,
1972.
19. Accordingly, the writ petition
is allowed.

20. The respondent no. 2 i.e. the
Managing
Director,
U.P.
Forest
Corporation, Lucknow is directed to pay
interest as per the rate prescribed under
Section 7(3) of the Act, 1972 for the period
from 01.02.2020 till 03.11.2020.

21. Let the aforesaid amount be
paid within a period of six weeks from the
date of receipt of a certified copy of this
order.
----------
(2024) 11 ILRA 592
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 5252 of 2024

Vishal Saraswat ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Mayank

Counsel for the Respondents:
C.S.C., Kalyan Sundram Srivastava, Manoj
Kumar Singh

A. Service Law - Pendency of criminal
proceedings - If in a criminal case the
incumbent has not been acquitted and the
case is pending trial, employer may well
be justified in not appointing such an
incumbent or in terminating his services
as conviction ultimately may render him
unsuitable for job and the employer is not
supposed to wait till outcome of the
criminal case. The decision has to be taken
by the employer after considering that a