HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 7227 of 2002 DATED 29th September, 2011 BETWEEN The AP Dairy Development Co-op Federation Ltd, Lalapet, Hyderabad, rep by its Managing Director and anr …….Petitioners and The Appellate Authority under Section 7(7) of Payment of Gratuity Act and Deputy Commissioner of Labour, Hyderabad And ors. ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 7227 of 2002 ORDER: This Writ Petition is filed against the order dated 5.3.2002 passed by the first respondent in case No.PGA. 17 of 2001, whereby the order dated 17.9.2001 in case No. PG.5 of 2001 passed by the second respondent was confirmed. The third respondent-workman was appointed as a Junior Dairy Operator in the petitioner- A.P. Dairy Development Co-operative Federation Limited on 17.12.1966. He was charge sheeted on the ground of misconduct of unauthorized absenteeism and was thereafter removed from service w.e.f. 2.1.1993 after following the due procedure. It is the case of the petitioner- Federation that after lapse of 11 years, the third respondent-workman filed a case in P.G. Case 5 of 2001 before the second respondent claiming payment of gratuity and the said authority allowed the case and granted a sum of Rs.30,000/- towards gratuity and Rs.20,000/- towards interest. Questioning the said order, the petitioner-Federation preferred an appeal before the first respondent, who under the order impugned dismissed the appeal. Hence, the present Writ Petition. It is the case of the petitioner-Federation that an employee who was dismissed from service is not entitled to claim gratuity; and that both the authorities failed to see the delay and laches on the part of the third respondent- workman in approaching the Controlling Authority to claim the gratuity and that the first respondent ought not to have held that the objection taken by the petitioner-Federation with regard to the limitation aspect was not tenable as the same was raised for the first time before the appellate authority. It is manifest from the record that against the order of dismissal from service, the third respondent-workman preferred an appeal and during the pendency of the appeal, he filed case No.PG/5/2001 seeking payment of gratuity. As such, the question of delay and laches does not arise as the workman was actively pursuing his remedies. As regards the contention of the petitioner as to the objection taken by the appellate authority regarding the delay/limitation aspect, it may be noticed that delay is a question of fact and unless and until the said plea of delay is raised before the First authority and evidence thereof is allowed to be adduced, and a finding is recorded thereon, the same cannot be raised for the first time before the appellate authority. As such, the appellate authority rightly rejected the same. As regards the entitlement of gratuity by an employee who was dismissed from service, it is obvious from Section 4(6) of the Payment of Gratuity Act,1972 that payment of gratuity to an employee whose services have been terminated for any act, willful, omission or negligence causing any damage or loss to or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. In the case on hand, the third respondent-workman was dismissed from service on the ground of unauthorized absenteeism and as such, the question of causing any loss or destruction by him to his employer did not arise. That being so, both the authorities concurrently held that the third respondent-workman is entitled to receive gratuity as he had not caused any loss in terms of Section 4(6) of the Payment of Gratuity Act, 1972. Further, it is the duty of the petitioner-federation to pay gratuity immediately to the third respondent-workman and he should not be deprived of his right to claim interest for the delayed payment thereof. Section 7(3) of the Act stipulates a time limit to the employer to pay the gratuity within 30 days to the person to whom the gratuity is payable. As the petitioner- Federation failed to pay the gratuity as contemplated under Section 7(3) of the Act, the Primary authority granted interest and the appellate authority rightly upheld the same. For the foregoing discussion, I do not see any infirmity or irregularity in the orders of the first and second respondents, who are appellate and controlling authorities respectively. The Writ Petition is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 29th September, 2011. Msnro