1. By way of this petition, the petitioner has prayed to quash and set aside the impugned judgment and order dated 16.12.2003 passed by the appellate authority under the Payment of Gratuity Act, 1972 in Appeal No. 6 of 2003, whereby the said appeal was allowed and the appellate authority directed the petitioner to pay the respondent an amount of Rs.1,40,414/ towards gratuity.
2. The facts in brief are that the respondent while applying for the post of Helper has stated his date of birth as 01.08.1940. However, later on it was found that the correct date of birth of the respondent was 01.08.1930. In connection with the said alleged fraud, the petitioner filed Civil Suit being Special Civil Suit No. 302 of 2000 for recovery of Rs.0,02,142.63 paise before the Court below and also the criminal complaint was lodged with the Visnagar Police Station. Since the petitioner did not paid the amount of Rs.41,877/ towards gratuity, the respondent approached the Controlling Authority under the Payment of Gratuity Act, being Application No. GTC/16/02. However, the said authority rejected the application of the respondent vide order dated 08.01.2003. Being aggrieved by the said order, the respondent preferred appeal before the appellate authority and the appellate authority by way of impugned order dated 16.12.2003 allowed the said appeal and directed the petitioner to pay an amount of Rs.1,40,414/ towards gratuity along with interest @ 10% w.e.f. 31.10.1999. Hence, this petition.
3. Heard learned counsel for the respective parties and perused the documents on record. From the record it appears that on account of the alleged fraud committed by the respondent, the respondent retired from the service with effect from 30.09.1999 instead of 31.08.1990 and drew his salary and allowances. Thus, considering the facts of the case and keeping in mind the principle laid down by the Apex Court in the case of Radha Kishun v. Union of India & Ors. 1997 (2) SCALE 616, the impugned order deserves to be quashed and set aside.
4. For the foregoing reasons, the petition is allowed. The impugned order dated 16.12.2003 passed by the appellate authority is quash and set aside. Rule is made absolute to the above extent with no order as to costs.
(K.S.JHAVERI, J.) /phalguni/