IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL NO: 1346 of 2009 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 8.04.2009 in WP No. 19765 of 2008 on the file of the High Court.) Between: B.Rajemdra Kumar ..... APPELLANT AND M/s. Hindustan Machine Tools Limited, 59, Bellary Road, Bangalore, Rep. By its Managing Director and others .....RESPONDENTS The Court made the following : ORAL JUDGMENT: (per the Hon’ble Smt. Justice T.Meena Kumari) This Writ Appeal is filed by the Respondent No. 12 in Writ Petition No. 19765 of 2008 aggrieved by the order dated 08.04.2009 passed by a learned Single Judge disposing of a batch of writ petitions permitting the respondents 1 and 2 herein to pursue statutory appeals before the third respondent herein subject to the condition of their depositing 50% of the gratuity amounts directed to be paid by the respondent No.4 herein excluding interest component. The appellant herein and others who were the employees of the respondents 1 and 2 herein have opted for voluntary retirement in the year 1996-1997 and have received gratuity for a period of about 19 years and subsequently after ten years, they filed applications before respondent No.4 herein for payment of the balance gratuity amount, which were allowed directing the respondents 1 and 2 to pay the gratuity amount apart from interest. This order was appealed by the respondents 1 and 2 under Sec. 7(7) of the Payment of Gratuity Act, 1972 (for brevity the Act) before the respondent No.3. But the said appeals were not registered in view of the fact that the respondents 1 and 2 did not comply with the pre- deposit requirement envisaged under second proviso to Sub-Sec. (7) of Sec. 7 of the Act. Aggrieved thereby, the respondents 1 and 2 herein have filed the above writ petition seeking exemption from payment of said pre- deposit, as a condition precedent for entertaining the appeals. The learned Single Judge on extensive consideration of the submissions made by the counsel on either side, observed that even assuming that the appellant herein and other employees are entitled to receive gratuity even after ten years, whether they are entitled to receive interest for a period of ten years which will constitute more than 100% of the gratuity, during which they did not make any claim, is the question to be determined by the respondent No.3. Observing so, the learned Single Judge permitted the respondents 1 and 2 herein to pursue statutory appeals before the third respondent herein subject to the condition of their depositing 50% of the gratuity amounts directed to be paid by the respondent No.4 herein excluding interest component and on such deposit, within a period of twelve weeks therefrom, the third respondent was directed to entertain and dispose of the appeals on merits. The learned Single Judge further directed that the said amount be invested in a deposit, which shall be subject to the results of the appeals. Aggrieved thereby, the present writ appeal is filed by Respondent No.12 inter alia contending that the order passed by the learned Single Judge is contrary to the mandatory provisions to Sec.7(4)(a) and second proviso to Sec. 7(7) of the Act. Mr. A.K.Jayaprakash Rao, learned counsel for the appellant contends that the order passed by the learned Single Judge is hit by the mandatory provisions of the Act more particularly second proviso to Sec. 7(7) of the Act, which requires the respondents 1 and 2 to deposit the entire gratuity amount, adjudged by the Primary Authority under the Act. Whereas, it is the contention of Mr. S.V. Bhatt, learned counsel appearing for the respondents 1 and 2 that appellant and other employees cannot now claim the balance gratuity at their leisure having slept for more than ten years. He further contends that in the absence of any application to condone the delay of ten long years, the 4th respondent ought not to have suo motu condoned the delay so as to entitle the appellant and other employees the balance gratuity, to which they are not entitled to muchless the interest component. Since the controversy revolves round the second proviso to Sec.7(7) of the Act, it is apt to reproduce the same, which reads: 7. Determination of the amount of gratuity: (1) to (6)………………………… (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 Sub-Section (4), or deposits with the appellate authority such amount. A plain reading of the second proviso referred to above, makes it abundantly clear that it is mandatory on the part of the employer – respondents 1 and 2 herein to deposit the amount equal to the amount of gratuity to prefer an appeal. The contention that the appellant and other employees have slept over the issue of entitlement of balance gratuity and that in the absence of any application to condone the delay of ten years the 4th respondent ought not to have suo motu condoned the delay and, as such, at any rate the employer – respondents 1 and 2 are not liable to pay interest, are the issues to be decided by the 3rd respondent in the appeal, as was rightly held by the learned Single Judge. Therefore, in view of the sacrosanct provision of law, we modify the order passed by the learned Single Judge directing the respondents 1 and 2 to deposit the remaining balance of 50% of the gratuity amount before the appellate authority within a period of eight weeks from today. On such deposit, the appellate authority is directed to entertain the appeals and dispose the same in accordance with law within a period of three months thereafter. Needless to mention that in default of making deposit, as stated above, the order of the Primary Authority shall become operative. With this modification, the Writ Appeal stands disposed of. No order as to costs. ____________________ Justice T.Meena Kumari __________________ Justice Sanjay Kumar November 26, 2009 MAS.