1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR W.P.No.174 of 2010 ( The Nagpur District Central Co-op. Bank Ltd. vs. The Appellate Authority under Payment of Gratuity Act and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr.M.V.Samarth, Adv. for petitioner. Mr.Sonare, AGP for respondent nos. 1 and 2. Mr.C.V.Jagdale, Adv. for L.Rs. of Resp.Nos. 4, 11, 24 and 25 and Resp. Nos. 3, 5 to 10, 12 to 23 and 26 to 37. CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 09, 2010. The matter is heard finally. The mater is being considered since long. The contention of Mr.M.V.Samarth, Adv. is that ceiling of gratuity till 24th September, 1997 was Rs.1,00,000/- only and the amount in excess of Rs.1,00,000/- claimed by the respondents is contrary to law. The said amount, therefore, could not have been awarded by the competent Authority in the proceedings u/s. 7 of Payment of Gratuity Act and for not depositing such amount in excess, the Appellate Authority could not have refused to consider appeal u/s. 7 (7) on merits. Mr. M.V.Samarth, Adv. has relied upon the judgment of the Hon'ble Apex Court reported at 2006 (3) CLR page 667, Beed District Central Co- operative Bank Ltd. vs. State of Maharashtra and Ors. to substantiate his contention. 2 According to Mr.Jagdale, Adv., ceiling of maximum amount of gratuity was hiked on 1.4.1995 from Rs.1,00,000/- to Rs.2.5 lacs and hence, appreciation of controversy by the competent Authority is just and proper. He further states that as mandatory amount has not been deposited, refusal of the Appellate Authority u/s. 7 (7) of the Act to go into merits of the controversy is just and proper. He also relies on the very same judgment to point out the intervening increase in ceiling. He further adds that, according to the Hon'ble Apex Court, an employees has to accept gratuity amount either as per contract or as per statute and they cannot claim it under both. He also invited attention to the communication dt. 23.12.1998 issued by the employer to its Chief Accountant and Financial Officer to show that always amount in excess of ceiling prescribed by Gratuity Act has been paid to the retired employees. Mr.Samarth Adv. has disputed this position. The competent Authority has applied its mind to this payment but it is only mentioned that the matter was decided in favour of those 42 employees by Court of law. The effect of such payment on the Scheme of Payment of Gratuity Act has not been considered by the competent Authority. In appeal, the Appellate Authority has not considered this aspect because it found that necessary pre-deposit was not made by the employer. Considering the nature of controversy and its impact, I find it appropriate to permit the appeal filed by the petitioners to be decided on merits and for that purpose, the judgment dt. 8.4.2009 delivered by the Appellate Authority in Appeal No.PGN/Misc./04/2009 is quashed and set aside. 50 % the amount payable to the respective employee is already deposited by the petitioner/employer with the Registry of this Court as per 3 order dt. 15.1.2010. The said amount and deposit shall be treated as valid for the purpose of deciding the appeal on merits. The Appellate Authority shall consider the above mentioned judgment in the case of Bid District Central Co-operative Bank and the controversy involved in the matter afresh and decision shall be taken as early as possible and in any case, by 30th September, 2010. The parties to appear before the Appellate Authority i.e. respondent no.1 on 18.8.2010 and to abide by its further directions in the matter. The parties succeeding in the proceedings shall be entitled to withdraw the amount and deposited with the Registry of this Court. Till the appeal is decided, interim orders granted by this Court on 15.1.2010 to continue. Rule is made absolute accordingly. No order as to costs. At this stage, Mr. Jagdale, Adv. has pointed out that there were about 35 appeals before respondent no.1. Mr.Samarth, Adv. has stated that same were disposed of by common order and the appeal numbers are given in the prayer clause of the Writ Petition. Thus, the impugned orders passed in those appeals are quashed and set aside. The petitioners shall, however, arrange to pay deficit Court fees in this respect if any, in the Writ Petition, by 16.8.2010. JUDGE jais