IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 130 of 2008 Date of decision: 23.5.2008 H.P.Agro Industries Corporation Petitioner. Versus Balbir Modka Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Atul Jhingan, Advocate. For respondent. Nemo. Per Deepak Gupta, J. (oral) This petition is directed against the order of the appellate authority under the Payment of Gratuity Act, 1972, namely the Joint Labour Commissioner-cum- Appellate Authority dated 26.2.2008, whereby the appeal filed by the present petitioner (here-in-after referred to as the employer) has been rejected. Briefly stated, the facts of the case are that the respondent (here-in-after referred to as the employee) was admittedly working on daily wages with the employer. Both the authorities below have come to a finding of fact which finding is not seriously disputed before me that the 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes employee worked for 11 years and 10 months on daily wages and 1 year and 6 months as a regular employee. It appears that the staff with the employer was surplus and some of the staff of the appellant-corporation was absorbed in the Education Department. The employee in the present case also opted to be absorbed in the education department. He was absorbed in the year 1999. He was granted the benefits of CPF, leave encashment, etc. and the amounts payable to him were transferred by the employer to the education department but his gratuity payable under the Payment of Gratuity Act was not transferred to the new employer. The employee made a representation to the employer on 8th February, 2004 that his gratuity may be paid and he also made a reference in this letter to his earlier representation dated December, 2003 in this behalf. Since the employer did not pay the gratuity, the employee was left with no other option but to approach the Commissioner under the Payment of Gratuity Act, who vide his order dated 7.7.2006 held that the employee was entitled to gratuity and found that an amount of Rs.15,203/- was admissible to the applicant as gratuity and in addition ordered that on this delayed payment the employer would pay interest at the rate of 9% per annum from the date of application till date of decision. Both the parties went up in appeal and the learned appellate authority modified the orders and came to the conclusion that the gratuity admissible was Rs.15,204/- in respect of the period of service rendered on daily wages and Rs.5,072/- in respect of the period of service rendered on regular basis. In addition thereto he awarded interest at the rate of 10% per annum on the amount payable and awarded a total sum of Rs.40,043/- to the employee. This order is under challenge. It has been contended on behalf of the petitioner that in fact the present employer i.e. the petitioner ceased to be the employer of the respondent- employer and hence was not liable to pay the gratuity. It is also contended that the application for gratuity having not been filed within the period prescribed under Rule 7 of the Payment of Gratuity Act, 1972, the same should have been rejected as time barred especially in view of the fact that no application for condonation of delay has been filed. As far as the first contention is concerned, the same is absolutely without merit. It is not disputed that gratuity was payable to the employees of the Corporation. Only because the services of the employee were transferred to another organization, the liability of the employer to pay such gratuity will not come to an end. In fact, it was the duty of the employer in terms of Section 4 of the Payment of Gratuity Act, 1972 to pay gratuity and the gratuity could have been recovered in terms of Section 8 of the Act. Non payment of gratuity is actually a statutory criminal offence punishable under Section 9 of the Payment of Gratuity Act. The main question raised in the present petition is that the application was not filed within period of 30 days and no application for condonation of delay was filed and hence the claim of the employee should have been rejected is being time barred. The act does not provide any limitation for the recovery of the gratuity. The Delhi High Court in Taxmaco Limited vs. Ram Dhan and another, 1992(65) Factory Law Report 742 held that the Payment of Gratuity Act is a social welfare legislation. It was further held that the workmen would not be deprived of the gratuity merely on the ground of late filing of the application. In the present case, it is apparent that gratuity was not to be paid to the employee directly. The gratuity was to be transferred by the petitioner employer to the Education Department. It was to be transferred from the previous employer to the subsequent employer. In such circumstances, the right to claim the gratuity would have arisen only at the time of retirement from service. It was well before the retirement that the application was moved in the present case. It appears that the employee came to know that the employer has not transferred the gratuity amount and moved the application. Plea of limitation, as such, is misconceived. Even otherwise I am of the considered view that in matters like payment of gratuity it does not behove an employer that too a public sector undertaking to raise the plea of limitation. The Supreme Court as far back in 1974 in The Trustees of Port of Bombay vs. The Premier Automobiles Ltd. And another, AIR 1974 Supreme Court 923 had held as follows:- We are of the view, in reiteration of earlier expression on the same lines, that public bodies should resist the temptation to take technical pleas or defeat honest claims by legally permissible put marginally unjust contentions, including narrow limitation. In this and similar cases, where a public carrier dissuades private parties from suing by its promises of search for lost articles and finally pleads helplessness, it is doubtful morality to non- suit solely on grounds of limitation, a plaintiff who is taken in by seemingly responsible representation only to find himself fooled by his credibility. Public institutions convict themselves of untrustworthiness out of their own mouth by resorting to such defences. This view was followed by this Court in Bhuvneshwari Devi and others vs. Murari Lal and another, ILR (Himachal Series) (1985). It is disheartening to note that the petitioner corporation raised the bogey of limitation and contested the claim of the employee, wasting time of the authorities below since 2005 when the total amount involved was only about Rs.20,000/-. I am sure that if at the initial stage, the Corporation had offered to pay the principal amount, the employee may have foregone his claim of interest. I find no merit in the petition. Petition is therefore, dismissed in limine. 23rd May, 2008 (Deepak Gupta), J. ™