Bombay High Court
Hanmant Pundlikrao Biradar vs The State Of Maharashtra Through Its ... on 3 May, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:9712-DB
1103.24wp
(1)
Reportable Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1103 OF 2024
Hanmant s/o Pundlikrao Biradar,
Age: 59 years, Occupation : retired,
R/o At Ajani, Post Togari,
Taluka-Deoni, District-Latur-413519 ....PETITIONER
VERSUS
1) The State of Maharashtra,
Through it's Secretary,
Other Backward Class Bahujan
Kalayan Department, Mantralaya,
Mumbai-32
2) The Desk Officer,
Other Backward Class Bahujan
Kalayan Department, Mantralaya,
Mumbai-32
3) The Managing Director,
Maharashtra State Other Backward
Class Finance and Development
Corporation, Administration Building,
4th Floor, Ramkrushna Chemburkar Road,
Chembur, Mumbai 400071 ....RESPONDENTS
....
Mr S. S. Dambe, Advocate for Petitioner;
Mr S. B. Narwade, A.G.P. for Respondent Nos.1 and 2
Mr A. A. Yadkikar, Advocate for Respondent No.3
CORAM : RAVINDRA V. GHUGE
AND
R. M. JOSHI, JJ.
1103.24wp
(2)
DATE : 3rd May, 2024
ORAL JUDGMENT : (PER : Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard finally by consent of the respective sides.
2. The Petitioner has put forth prayer clauses (B), (C) and (D), which read as under :-
"B. By issuing writ of mandamus or order or directions and order to direct the respondents to pay the remaining amount of gratuity to the petitioner as per the Payment of Gratuity (Amended) Act 2018 of Rs.16.5 lacks with interest within stipulated period.
C. By issuing writ of mandamus or order or directions the respondents may kindly be directed to decide the representation 20.6.2023 filed by the petitioner and direct to pay the remaining amount of gratuity with interest within stipulated time period.
D. By issuing writ of mandamus or order or directions to the respondent no.1 direct to grant sanction to the proposal dated 8.1.2020 according to the ordinance dated 28.3.2018 in Gratuity Act 1972 regarding approving the maximum amount of Gratuity Rs.20 lacks to the officers and employees of OBC Corporation State of Maharashtra."
1103.24wp (3)
3. We have considered the strenuous submissions of the learned Advocates for the respective sides. With their assistance, we have considered the Petition paper book and the affidavits-in- reply filed on behalf of the State, dated 26/04/2024 and on behalf of Respondent No.3, dated 26/04/2024.
4. The undisputed factors are as under :-
(a) The Petitioner joined service with the Maharashtra Electronic Corporation Limited, Chhatrapati Sambhajinagar (for short 'Meltron') on 07/03/1986 as a 'Technical Assistant' and was subsequently promoted as an 'Engineer'.
(b) Since Meltron was closed down on 28/11/2023, the Petitioner was redeployed as a 'District Manager' along with two other persons, with Respondent No.3/Maharashtra State Other Backward Class Finance and Development Corporation Ltd., Mumbai, on 09/12/2003.
(c) Respondent No.3, was subsequently renamed as 'OBC Corporation'.
1103.24wp (4)
(d) By an office order dated 24/12/2003, the Petitioner's pay fixation was done by Respondent No.3 and he was placed in the pay-scale to Rs.2000-60-2300-EB-75-3200- 100-3500, as per Rule 11 of the Maharashtra Civil Services (Pay) Rule, 1981.
(e) By a communication dated 15/12/2003, by the Chief Executive Officer of Meltron, the Petitioner was informed that, his entire gratuity payable for his service in Meltron for an amount of Rs.1,02,621/-, has been transferred to the OBC Corporation since the Petitioner has been absorbed in the OBC Corporation.
(f) The State of Maharashtra issued the Government Resolution dated 24/08/2005, fixing the terms and conditions of the services of the Officers and the Employees, who were absorbed from the other Corporation.
(g) In Clause 5 below Annexure B to the said Government Resolution, it was specifically mentioned that 1103.24wp (5) the employees would be entitled for the gratuity, as is prescribed under the Payment of Gratuity Act, 1972.
(h) The Petitioner superannuated as the 'District Manager', from the OBC Corporation, on 30/11/2022.
(i) The Petitioner has received gratuity amount of only Rs.3,50,000/- vide cheque No.834176, dated 01/12/2022.
(j) The ceiling on the gratuity amount prescribed under the Payment of Gratuity Act was raised to Rs.20,00,000/- from Rs.10,00,000/-, by the Notification dated 28/03/2018, vide which, an amendment was made to Section 4(3) of the Payment of Gratuity Act, 1972.
(k) The State Government had issued a Notification dated 04/06/2012, stating therein that, those employees who were absorbed from such closed down Corporations, by way of redeployment in any other entity of the Government, they would be entitled for all the benefits after their absorption by calculating their gratuity amount, if they have not been 1103.24wp (6) granted benefits of service after the closing down of the erstwhile industry.
5. The learned A.G.P. strenuously opposed this Writ Petition on the basis of the affidavit-in-reply. It is contended that, the Petitioner was one of the employees from a defunct public undertaking. His absorption in the OBC Corporation should be considered as a new appointment and such employees are not entitled for any benefit for their previous service rendered with the defunct public undertaking. It is further stated that, those employees, who have not taken any admissible benefit from the defunct public undertaking, on their reemployment in any other public undertaking, would get the benefit of continued service for the purpose of gratuity in the light of the Circular issued by the Finance Department, dated 04/06/2012.
6. It is conceded in paragraph 6 of the affidavit on behalf of Respondent No.1 that the Petitioner has not availed any benefit from his previous public undertaking and he has been re-appointed in the OBC Corporation and service rendered by him in the previous public undertaking, would not be considered for 1103.24wp (7) such benefits, except gratuity. In paragraph 7 of the said affidavit, a statement is made that the office orders dated 09/12/2003 and 24/04/2003, issued by the OBC Corporation, by which, his earlier pay has been protected, is contrary to the Government Resolutions dated 16/06/2003 and 04/06/2012.
7. It is then canvassed in paragraph 8 that, the Finance Department has issued a Circular dated 14/11/2014, instructing the public undertakings that the maximum gratuity limit, which was fixed at 10,00,000/-, should be lowered to the maximum gratuity/ceiling of Rs.7,50,000/-, unless there are statutory provisions or Court orders applicable.
8. The learned Advocate representing Respondent No.3/ OBC Corporation, relies on the affidavit-in-reply, dated 26/04/2024 and submits that, the pay-scale granted to the Petitioner as a 'District Manager', has been protected. The gratuity calculated with regard to the Petitioner as per the provisions of the Payment of Gratuity Act, 1972 is computed at Rs.26,83,040.71, as on the date of payment of gratuity, which is 01/01/2023. He refers to a communication dated 08/01/2020, 1103.24wp (8) addressed by the Managing Director of the OBC Corporation to the Principal Secretary, Other Backward Classes Social and Educational Backward Classes, Scheduled Tribes, De-notified Tribes, Nomadic and Special Backward Classes Welfare Department, indicating that the OBC Corporation has created a corpus for payment of gratuity to the retired employees, upto the ceiling of Rs. 20,00,000/- and the said amount is kept in the Fixed Deposit Receipt with the Nationalized Bank.
9. Having considered the contentions, pleadings and averments of the litigating parties before us, we are of the view that sometimes, the State Government opposes a Petition only for the sake of opposition. Even the State has admitted that the Petitioner has not availed of his service benefits and gratuity amount, when he was working for more than 17 years with Meltron. It is also conceded that the Chief Executive Officer of Meltron had transferred the entire gratuity amount payable to the Petitioner, to the OBC Corporation with the communication/letter, dated 15/12/2003 for an amount of Rs.1,02,621/-, as was payable in December 2003. It cannot be ignored that the Payment of 1103.24wp (9) Gratuity Act prescribes 10% interest on the unpaid amounts towards gratuity.
10. Considering the above referred documents and the pleadings of the State Government, it is conceded that the Petitioner was redeployed with the OBC Corporation. Redeployment indicates continuity in service, unless there is a break in service specifically introduced. Even if such break is introduced, such a break would gain significance only if the earlier portion of the service of the Petitioner with Meltron, was concluded with payment of all legal dues and retirement benefits to the Petitioner. The fact that the gratuity amount was deposited with the OBC Corporation and the Petitioner's service was absorbed by protecting his pay-scale, leaves no room for any debate that, continuity in service for 36 years and 8 months odd, will have to be granted to the Petitioner.
11. In this backdrop, we are of the view that the calculation of the gratuity amount made by the OBC Corporation, dated 29/11/2022 for an amount of Rs.26,83,040.71, prior to the superannuation of the Petitioner, is neither disputed nor 1103.24wp (10) controverted, much less, denied. Nevertheless, Section 4(3), along with the amendment of 2018 adverted to herein above, casts a ceiling of Rs.20,00,000/- on payment of gratuity and the Petitioner does not dispute this.
12. In view of the above, this Writ Petition is allowed. Deducting the amount of Rs.3,50,000/- from the amount of Rs.20,00,000/-, which was paid by the OBC Corporation to the Petitioner after his superannuation, the remaining amount of Rs.16,50,000/- along with the statutory interest @10% p.a. to be calculated from 01/01/2023 on-wards, would be paid by the OBC Corporation to the Petitioner, on or before 30/06/2024.
13. Rule is made absolute in the above terms.
(R. M. JOSHI, J.) (RAVINDRA V. GHUGE, J.) sjk