WRIT PETITION 758 of 2014 on 16 May 1975

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No.758 of 2014 (S/S)

Gunanand Bijalwan

…..Petitioner

Vs.

U.P. State Co-operative Federation Ltd. & Another

..Respondents

Mr. Tapan Singh, Advocate for the petitioner. Mr. Ashish Joshi, Advocate for respondent no.1.

Hon’ble Pankaj Purohit, J.

(Delay Condonation Appl. No.2354 of 2021)

2. There is delay of 1307 days in filing the review application wherefore the applicant has filed the delay condonatoin application. Delay is explained sufficiently. Delay is therefore, condoned. Delay condonation application stands allowed.

(Review Application No.2353 of 2021)

3. Heard learned counsel for the parties and perused the review application

4. This writ petition has been filed by the petitioner for mandamus commanding the respondents to calculate the gratuity of the petitioner after considering his 35 years of service with effect from 16.05.1975 to 31.01.2014. Further to encash the earn leave of 300 days, security amount and other dues of the petitioner alongwith 18% of annual interest.

5. This writ petition was allowed on 08.05.2017 in terms of the controversy resolved by this Court in WPSS No.1955 of 2011 on 13.05.2013 passed by learned Single Judge after relying upon the judgment rendered by Division Bench of this Court in SPA No.229 of 2009 on 14.05.2010, wherein it has held that the Uttar Pradesh State Cooperative Federation Ltd. to pay all the dues upto 31.12.2004 and liability to pay the dues commencing from 01.01.2005 was on the Uttarakhand State Cooperative Federation Ltd. It is stated that while allowing the writ petition the Court did not consider the aspect that gratuity would be calculated on the basis of last drawn salary by the petitioner and further no orders have been passed for encashment of earn leave.

6. By the order under review dated 08.05.2017 passed by the Coordinate Bench of this Court, respondent no.1 was directed to calculate and pay gratuity to the petitioner for the services rendered with effect from 16.05.1975 till 31.12.2004 within a period of 12 weeks from the date of production of a certified copy of this order along with interest payable @ 12% per annum. But in the order it was nowhere mentioned that gratuity would be calculated on the basis of last drawn salary by the petitioner and further no orders have been passed for encashment of earn leave.

7. Having heard learned counsel for the parties and after perusal of the judgment under review vis-à-vis to the averments made in the writ petition and the grounds taken in the review application, this Court finds that although the judgment under review records the consensus made by learned counsel for the parties to the effect that the controversy involved in the writ petition is squarely covered by the aforementioned decisions, but the fact remains that the writ petition was allowed finally withoutmentioning that the gratuity would be calculated on the basis of last drawn salary by the petitioner.

8. In order to attract the provisions of Order 47 Rule 1 of the C.P.C., the error/mistake must be apparent on the face of the record of the case. In the light of aforesaid, this Court is of the considered view that the impugned judgment/order suffers from error apparent on the face of record. That being the position, review application is allowed. Judgment/order dated 08.05.2017 is hereby recalled and modified to the extent that the gratuity to the petitioner for his services is to be calculated on the basis of last drawn salary and further respondent no.1 is also directed to encash the earn leave of 300 days; needless to say that the amount would carry interest at the rate of 12% per annum as indicated in the judgment and order dated 08.05.2017.

9. Writ petition is accordingly, allowed.

Arti

(Pankaj Purohit, J.)

20.06.2023