1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4373 OF 2009 (A.P.M.C. vs. Pandurang s/o Narayanrao Lokhande) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 01, 2010. Heard finally Shri Saboo, learned counsel for the petitioner and Shri Mohokar, learned counsel for the respondent. The application under Section 7 of the Payment of Gratuity Act, 1972, moved by present respondent for payment of gratuity has been allowed after treating him as superannuated employee and, therefore, presuming that he has completed 38 years of continuous service. Thus, gratuity amount for 570 days has been worked out as per relevant by-laws and rules. The contention of Shri Saboo, learned counsel is, services of respondent are stated to be by oral terminated on 02.02.2001 and challenging that termination, ULP Complaint and other proceedings are already pending. According to him, therefore, at the most gratuity till the date of termination could have been ordered. He further states that said period worked out to about 36 years of service only. His next contention is, Dearness Allowance (DA) could not have 2 been treated as part of wages and his last contention is, as employee joined services in 1964, the provisions of payment of Gratuity Act, which came into force in 1972, are not applicable. Shri Mohokar, learned counsel contends that Gratuity Act itself is specifically applicable to services of respondent and hence there was no defence specifically raised before lower authorities. He further points out that the petitioner – management has not accepted any termination and according to them, it is only suspension pending enquiry. He further relies upon definition of “Wages” in Gratuity Act to show that DA forms part of wages. The contention that the Payment of Gratuity Act, 1972, is not applicable to the respondent is liable to outright rejection. Similarly, the contention that DA does not form part of wages is misconceived. However, it appears that dispute about termination or no termination is pending before the Competent Authority. The period involved in that dispute is roughly about two years. Considering the last wages drawn by the respondent and his gratuity entitlement upon it along with interest, an amount of Rs.25,000/- is more than sufficient to protect the interest of the petitioner in the matter. According to Shri Mohokar, learned counsel, said amount cannot be more than Rs.14,000/- but by way of abundant precaution, I have calculated amount 3 on higher side. Thus, out of alleged balance amount of interest to be paid by the petitioner to the respondent, the petitioner is permitted to retain an amount of Rs.25,000/- with them and pay the balance amount to the respondent after adjusting accounts in this respect. The amount of Rs.25,000/- so retained shall be made over to the respondent or shall be retained by the petitioner, depending upon adjudication in ULP proceedings. The order passed by the appellate authority on 04.11.2008 is accordingly modified only to that extent. The balance amount mentioned above may be worked out by the petitioner within a period of six weeks from today and balance, if any, shall be paid to the respondent within a period of four weeks thereafter. Shri Saboo, learned counsel contends that the petitioner has to recover some amount back because of excess payment. The exact amount can be worked out by the parties in the period specified. Writ Petition is thus partly allowed. Rule accordingly. No order as to costs. JUDGE *GS.