1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2795 OF 2008. Kundalwadi Vividh Karyakari Seva Sahkari Society Ltd., Kundalwadi, Tq.Biloli, Dist. Nanded, through its Chairman/ Manager. ... Petitioner. Versus The State of Maharashtra and others ... Respondents. ... Mr.A.I.Deshmukh, advocate holding for Mr.B.G.Deshmukh, advocate for the petitioner. Mr.B.M.Wavalkar, advocate for the Respondent No. 4. ... CORAM : V.R.KINGAONKAR,J. Date : 08.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2 2. A short point involved in this petition is whether the Respondent was entitled to claim gratuity and other pensionary benefits flowing from retirement from service. The Respondent was admittedly to retire from the service on superannuation with effect from 19.10.1998. Still, however, erroneously he continued to remain in service up till 30.9.2002. The Respondent sought payment of gratuity. The application of the Respondent was allowed by the Assistant Commissioner of Labour by order dated 9.6.2005. The gratuity was allowed as shown in the final order up to period ending 31.3.2002. The said order was confirmed by the appellate authority, namely, Deputy Commissioner of Labour, Aurangabad. 3. It is well settled that the pensionary benefits, including gratuity, would be available only up to the date of superannuation. In the present case, the contemplated date of superannuation was 19.10.1998 and wrongly the Respondent had continued to remain in service up 3 to 30.9.2002. The period spent between actual date of superannuation and the contemplated legal or permissible date of superannuation can not be considered as service period. In such a situation, where the employee continues to remain in service inspite of crossing the date of superannuation, his claim only to the extent of actual pay for the work done during the relevant period is admissible. In other words, he will not be entitled to the benefits such as encashment of leave, gratuity, counting of service for the purpose of fixation of the pension etc. which is on account of illegal continuation in the service. My attention is drawn to Section 4 of the Payment of Gratuity Act,1972. The gratuity is payable for each calendar year of service as per Section 4, yet, the period w.e.f. 19.10.1998 could not be regarded as "period of service" in legal parlance. The period so spent by the Respondent No.4 is not period of his legal service as such but is only continuation of the service without legal sanctity. In this view of the matter, the impugned orders are unsustainable. 4 4. In the result, the petition is allowed. The impugned orders dated 9.6.2005 and 4.8.2007 are quashed. The gratuity payable to the Respondent No.4 shall be worked out appropriately as per his eligibility having regard to the juxta position with the date of superannuation on which he completed 58 years of age i.e. 19.10.1998. The excess amount, if paid, may be deposited by the Respondent No.4 within a period of six (6) months or will be recoverable from him. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp279508