Gujarat High Court
Sikka vs Narshibhai on 1 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/13693/2009 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13693 of 2009
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SIKKA
NAGAR PALIKA THROUGH CHIEF OFFICER - Petitioner(s)
Versus
NARSHIBHAI
JERANBHAI ZALA - Respondent(s)
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Appearance
:
MR
PV HATHI for
Petitioner(s) : 1,
MR HASIT H JOSHI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/04/2010
ORAL
ORDER
Heard learned advocate Mr. PV Hathi on behalf of petitioner, learned advocate Mr. HH Joshi appearing for respondent.
The petitioner Sikka Nagarpalika has challenged order passed by Controlling Authority dated 29/5/2009 in application no. 3/2009 and order passed by Appellate Authority no. 48/2009 dated 23/10/2009. The Controlling authority has awarded amount of gratuity in favour of present respondent which amount comes to Rs. 1,75,430/- with 10% simple interest w.e.f. 1/1/2009 till amount is paid to respondent workman. The appeal which has been preferred by appellant present petitioner is also dismissed by Appellate Authority.
On 23/12/2009, following order is passed by this Court:
Issue notice for final disposal, returnable on 28.01.2010.
By way of interim relief, the amount granted vide order dated 23.10.2009 shall remain deposited with Controlling Authority till final order, that may be passed by this Court. However, the workman would be at liberty to withdraw Rs.1,16,424/- out of Rs.1,75,043/- deposited with the Controlling Authority. The said amount, if disbursed, there should not have been any objection.
This Court has issued notice for final disposal. The contention which has been raised by learned advocate Mr. Hathi before this Court that employees of petitioner Municipality were governed by Statutory Rules known as Bombay Civil Service Rules (for short 'BCSR') so far as payment of gratuity is concerned. The definition of word 'employee' under section 2 (e) excludes employees who are governed by different set of Rules so far as payment of gratuity is concerned.
Learned advocate Mr. Hathi submitted that both authorities have committed gross error in considering section 5 and section 1(3)(b) of Gratuity Act as respondent workman was governed under Bombay Civil Service Rules. He submitted that certain benefits which workman would not have got under Industrial Law were made available to permanent employee of some Government Institution like petitioner Nagarpalika. Therefore, both provisions could not have been simultaneously made applicable to respondent, who upto date of retirement, enjoyed all benefits of permanent employee and then can not with help of Labour Union seek an additional benefit, which in law and on equity, could not have been granted by Authorities below.
He relied upon one decision of this Court in case of Jamnagar District Panchayat Vs. S. D. Rathod and Ors reported in 2006 (4) GLR 2849 (Coram: Ms. Justice R. M. Doshit), where it is held that payment of Gratuity Act 1972 is not applicable to Government servant and he can not claim gratuity under Act. The employee of District Panchayat is Government servant. Except that no other submission is made before this Court by learned advocate Mr. Hathi.
Learned advocate Mr. HH Joshi raised contention that none of the contention has been raised by petitioner before Controlling Authority and Appellate Authority. He submitted that before Controlling Authority on behalf of petitioner, one Chief Officer Shri C. C. Solanki was remained present. Before Controlling authority, in respect to date of appointment, date of retirement and last salary of respondent workman are not in dispute. According to petitioner, before Controlling authority, as per their Rules respondent is entitled maximum amount of gratuity for 33 years (16.5 salary) comes to Rs. 1,16,424/- but except that no other submission is made by petitioner Chief Officer before Controlling Authority. No dispute has been raised by petitioner before Controlling authority that Gratuity Act is not applicable. No such contention has been raised by petitioner that respondent employee is not covered by definition of employee u/s 2(e) of Payment of Gratuity Act.
He also raised contention before this Court that petitioner has not raised any contention that respondent is Government employee. Therefore, decision which has been relied by learned advocate Mr. Hathi is not applicable to facts of present case.
He submitted that Controlling authority has rightly examined matter under provision of Gratuity Act and also rightly considered last drawn salary received by workman and total length of service. Accordingly, workman is entitled for Rs. 1,75,043/- as Gratuity. Therefore, it has been rightly ordered by Controlling authority with 10% interest w.e.f. 1/1/2009.
He also submitted that before Appellate authority also it was not case of petitioner that Payment of Gratuity Act is not applicable but only contention was raised that Bombay Civil Services Rules has been accepted by petitioner Nagarpalika and accordingly amount of Gratuity has been calculated. The Pension Rules are not applicable to respondent workman and respondent workman is not Government Employee.
Learned advocate Mr. Joshi submitted that first time such contention has been raised before this Court, therefore, can not be entertained by this Court. He submitted that Appellate Authority has rightly considered provision of Bombay Shop Establishment Act and section 1(3)(b) of Gratuity Act and there is no exemption given by State Government to petitioner Nagarpalika under section 5. Therefore, workman is entitled amount of Gratuity under provision of Payment of Gratuity Act. According to him, either of authority has not committed any error which would require interference by this Court.
I have considered submission made by both learned advocates. The petitioner has not raised contention before either of authority that respondent workman is Government Employee. Therefore, decision of this Court as referred above relied by learned advocate Mr. Hathi is not applicable to facts of this case. The definition of Employee given under section 2(e) of Act means any person other than apprentice employed on wages in any establishment to do any skilled, semi skilled, or unskilled, manual or supervisory, technical or clerical work, where terms of such employment are expressed or implied but does not include any such person who holds a post under Central Government or a State Government and is governed by any other Act or Rules providing for payment of gratuity. The Bombay Civil Service Rules are made applicable by Nagarpalika but respondent employee is not governed by Bombay Civil Service Rules. Section 4(5) provide nothing in this section shall affect right of an employee to receive better terms of Gratuity under any award or agreement or contract with employer. Therefore, contention which has been raised by learned advocate Mr. Hathi that respondent employee is governed by Bombay Civil Service Rules can not be accepted because that Rules have been made applicable or accepted by Sikka Nagarpalika but respondent employee is not governed under provision of Bombay Civil Service Rules as an employee of State Government. So, out of this two rules, one is under Bombay Civil Service Rules, benefit of Gratuity is available to respondent employee. It is not case of petitioner that Gratuity Act is not applicable. Therefore, once Act is applicable then employee is entitled benefit of Gratuity under provision of Gratuity Act, 1972. Except an exemption obtained under section 5 of Gratuity Act. The section 14, having override effect from other enactment which provide provision of this Act or under Rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.
Considering section 14 provision of Bombay Civil Service Rules, which has been accepted by Nagarpalika but respondent employee is not governed as Government Employee under Bombay Civil Service Rules. Therefore, Bombay Civil Service Rules which has been accepted for payment of Gratuity, but if concerned employee is entitled better terms of gratuity under provision of Gratuity Act then he entitled amount of gratuity under provisions of Gratuity Act, 1972. The respondent employee is not entitled for pensionary benefit as available to Government Employee. So, Gratuity Act is made applicable under section 1(3)(b) then it is a duty of petitioner establishment must have to implement provision of Gratuity Act, 1972 in favour of respondent employee while calculating amount of Gratuity which has not been calculated by petitioner Nagarpalika. Therefore, Controlling authority has rightly calculated it and directed petitioner Nagarpalika to pay such amount with 10% interest. The decision which has been relied by learned advocate Mr. Hathi of this Court as referred above is not applicable to facts of present case because undisputedly respondent employee is not Government Employee or he is not employee of District Panchayat. Therefore, that decision is not helpful to facts of this case. The contention raised first time before this Court that respondent is not covered by definition of section 2(e) an employee can not be accepted because respondent employee is not governed by any Rules providing for payment of Gratuity because such rules has been accepted by Nagarpalika for payment of gratuity but merely accepting such rules of Bombay Civil Service Rules, provision of Gratuity Act can not be excluded for calculating amount of gratuity under Act. Merely accepting Bombay Civil Service Rules it can not consider to be an exemption u/s 5 of Gratuity Act.
The Government employee or employees of District Panchayat are governed by Bombay Civil Service Rules. The respondent employee being a workman of petitioner Nagarpalika is not governed under Bombay Civil Service Rules but that rules merely made applicable for payment of Gratuity. It makes difference if employee governed under particular rules and such rules made applicable to establishment.
The similar aspect has been considered by this Court in SCA no. 3662 of 2010 on 25/3/2010 in para 6 and 6.1, which are quoted as under:
6. This Court had an occasion to decide group of SCA No.2138 of 2002 and allied matters wherein this Court has held that Bilimora Municipality is not exempted from the operation of provisions of the Gratuity Act under Section 5 of the Act, then employee is entitled to benefit of gratuity under the said Act. The order passed in group of SCAs has been challenged before the Division Bench of this Court by Bilimora Municipality by way of LPA Nos.379 of 2008 which is reported in 2008 (2) GLH 448. Relevant observations are in Para.4, 5 and 6, which is quoted as under :
4. Ms. Jhaveri has appeared for the Municipality. She has assailed the judgment of the learned Single Judge. She has submitted that the Municipality has, as far back as in the year 1972, framed rules for payment of gratuity to its employees. The said rules have been approved by the State Government by its Resolution dated 24th November, 1972. Since then, the said rules are implemented and retired employees of the Municipality are paid gratuity according to the said rules.
5. We are unable to accept the contention raised by Ms. Jhaveri. Section 2(f) of the Act of 1972 defines employer. Sub-clause (ii) of the said clause (f) expressly includes the local authority within the meaning of the word employer. Section 4(1) of the Act of 1972 enjoins the employer to pay gratuity to its employee on termination of employment after he renders continuous service for not less than five years, inter alia, on his superannuation or on his retirement. Thus, the Municipality is under obligation to pay gratuity to its retired employees in accordance with the Act of 1972.
6. Section 5 of the Act of 1972 empowers the appropriate Government to exempt any establishment, etc. to which the Act applies, from the operation of the provision of the Act of 1972. In other words, unless an establishment is expressly exempted by the appropriate Government by notification issued under section 5 of the Act of 1972, such establishment would be liable to pay gratuity to its retired employees in accordance with the Act of 1972. It was not the case of the Municipality before the controlling authority or before the learned Single Judge or before us that the Municipality is exempted from the operation of the provisions of the Act of 1972 as envisaged by section 5 of that Act. In absence of the exemption specifically granted under section 5, the Municipality is duty bound to pay its employees gratuity in accordance with the Act of 1972.
7. In above view of the matter, the order of the learned Single Judge does not warrant interference. The Appeals are dismissed in limine. Civil Applications stand disposed of.
6.1 Therefore, unless and until the petitioner Nagarpalika exempted by State Government while exercising powers under Section 5 of the Act, the provisions of the Act are applicable to petitioner Nagarpalika.
Therefore, employees those who are working, no doubt receiving benefits under BCSR Rules for other service benefits, but for gratuity amount employees are entitled the benefits of the Act because there is a specific provisions made in Section 4(5) of the Act which provides that nothing in this Section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
Therefore, contention which are raised by learned advocate Mr. Hathi can not be accepted as no such contention has been raised by petitioner before Controlling authority and before Appellate Authority. According to my opinion Controlling authority and Appellate authority both are rightly examined application filed by employee and appeal preferred by appellant and decided according to law, for that, either of authority has not committed any error which would require interference by this Court while exercising power under Art. 227 of Constitution of India.
Therefore, there is no substance in present petition, accordingly, present petition is dismissed.
It is directed to Controlling authority, Jamnagar to pay entire amount of gratuity with 10% interest as directed by Controlling authority from deposit made by petitioner by A/c payee cheque in name of Narshibhai Jerafbhai Zala after proper verification without any delay. Earlier interim relief granted by this Court on 23/12/2009 stand vacated.
(H.K.RATHOD, J) asma Top