Rajasthan High Court - Jodhpur
Sarajuddin vs Jnvu, Jodhpur on 14 May, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Sarajuddin V/s. Jai Narain Vyas University, Jodhpur
S.B. CIVIL WRIT PETITION NO. 4113/12
***
Date of Judgment: May 14, 2013
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Manoj Bhandari, for the petitioner
Ms. Kusum Rao, for the respondent.
Reportable
BY THE COURT:
The bizarre tale of a poor employee Helper, who has rendered services of more than three decades with the respondent University without getting his retiral benefit in the form of gratuity, as demonstrated in the present petition, is heartening and utmost distressing.
Stated in succinct, the factual matrix as depicted in the writ petition is that at the threshold of his service career, the petitioner was appointed as Helper under the respondent University w.e.f. 23rd of July 1963 and confirmed in the said capacity vide order dated 11th of August 1973 with effect from 23.07.1964. As per the petitioner, he was [2] appointed in the regular establishment and served his employer for more than three decades making him entitled for all the three selection grades on completion of 9, 18 & 27 years of services. For substantiating this positive assertion, the petitioner has placed on record document Annex.2 dated 12th of April 1993, whereby his pay was ordered to be fixed on conferment of third selection grade by considering his uninterrupted services of more than 28 years. The petitioner has also asserted in the writ petition that while serving the respondent University, he was in regular receipt of annual grade increments until March 1995. With effect from 13th March 1995, the respondent University has abruptly deputed the petitioner as Pump Driver on temporary basis in the workcharged establishment for three months or till regularly selected incumbent is available. The petitioner has served his employer in the said capacity uptil the age of superannuation w.e.f. 31st of May 2004 and according to the petitioner he has served the University for 40 years. The petitioner has further averred in the writ petition that since his retirement he is regularly receiving his pension but the respondent University has not paid him his legitimate amount of gratuity. Although requisite bill for the said amount was prepared by the Building Cell of the University at the time of his retirement but same has not been processed. While confining his claim [3] for gratuity for the interregnum period of 1963 to 1995, the petitioner has mentioned in the writ petition with clarity and precision that despite many representations for payment of the amount of gratuity, the same has not been paid to him. Taking shelter of Statute 35 of the Handbook of Jai Narain Vyas University, Jodhpur, the petitioner has averred in the writ petition that under the said Statute the University has framed the Jai Narain Vyas University, Jodhpur Payment of Gratuity to Employees Rules 1970 for applying those Rules to all the employees joining services in the University on or after the date of coming into force of these Rules. Referring to Statute 35(3)(ii) the petitioner has pleaded in the writ petition that all the employees of the University, who are in service since 1st of April 1969 are eligible to opt for gratuity scheme under the Rules making them entitled for gratuity. Emphasizing the fact that petitioner has also submitted his option for gratuity, it is averred in the writ petition that for creating fund for gratuity, regular deductions were made from his monthly salary by the University. Relying on sub- clause (4) of Statute 35, the petitioner has also stated in the writ petition that there is a deeming provision making an incumbent employee entitled for gratuity even in want of submission of option for gratuity scheme. The petitioner has craved for the relief of gratuity in the writ petition by narrating the facts that for his said legitimate retiral [4] benefits, he has approached from pillar to post but all in vain. The petitioner has also averred in the writ petition that for redressal of his grievances, he has called upon the University by way of serving a notice for demand of justice but the said notice, according to him, was also not paid any heed by the employer.
The respondent in its reply has repudiated the claim of the petitioner and submitted that at the time of his superannuation the petitioner was not a regular employee of the University and was working in the workcharged cadre and as such he is not entitled for grant of gratuity in terms of Statute 35(3)(e) of the University Statutes. Taking a dig on the mode of appointment of the petitioner under the University, the respondent has pleaded in the reply that initial appointment of the petitioner was made by the Superintending Engineer of the Building Cell whereas under
the University only Registrar is authorized to make a regular appointment. Categorizing the appointment of the petitioner as an interim measure of the Building Cell, the respondent has opposed the prayer of the petitioner for grant of gratuity amount. The fact pertaining to petitioner's more than three decades services in the regular establishment as a regular employee of the University was also denied in the return. Reiterating its stand, the [5] University has denounced the claim of the petitioner for gratuity by taking shelter of Statute 35(3)(e) of the Statutes of the University.
Learned counsel for the petitioner has urged that action of the respondent University in not allowing the petitioner his legitimate benefit of gratuity is absolutely arbitrary and unreasonable. Taking shelter of Statute 35 (3)(ii), learned counsel for the petitioner has argued that the respondent University having accepted his option for gratuity scheme and deducted the requisite amount from the monthly salary, cannot be allowed to deprive him from his legitimate right to receive gratuity after his superannuation. Mr. Bhandari, the learned counsel for the petitioner, has very candidly conceded that the petitioner is claiming amount of gratuity for the period he has rendered services in the regular establishment i.e. from 1963 to 1995 and he is not pressing his claim for the subsequent period i.e. from March 1995 when he was deputed on workcharged cadre and continued to remain in the said cadre uptil his superannuation. Contention of Mr. Bhandari is that interregnum period between 1963 to 1995 is more than three decades and for this period the petitioner is entitled for gratuity under the Jai Narain Vyas University, Jodhpur Payment of Gratuity to Employees Rules 1970.[6]
Per contra, Ms. Kusum Rao, learned counsel for the respondent University has argued that the petitioner has of his own volition opted for appointment as Pump Driver on workcharged establishment from 13.03.1995, cannot be allowed the claim of gratuity by virtue of Statute 35(3)(e) of the University Statutes. That apart, the learned counsel for the University has also urged that at the threshold of his service career, the petitioner was not regularly appointed and therefore he is not entitled for the benefit of gratuity.
I have heard the learned counsel for the parties and perused the materials on record.
As the issue involved in the present petition hovers around the term "gratuity", it has become imperative for this Court to examine legal import of the said term. The Apex Court had the occasion to examine this aspect way back in the year 1960 in case of Indian Hume Pipe Co. Ltd. Vs. Workmen & Anr. (AIR 1960 SC 251). While examining the concept of gratuity and legitimacy of such claim by a retired workman, the Apex Court has made following observations in Para 5 of the verdict. [7]
(5). On the contentions raised in the tribunals below, the principal point which calls for our decision is whether a scheme of gratuity can be framed by industrial tribunals for workmen who are entitled to the benefits of S.25F of the Act. This question has been frequently raised before industrial tribunals and has generally been answered in favour of the employees. In dealing with this question it is important to bear in mind the true character of gratuity as distinguished from retrenchment compensation. Gratuity is a kind of retirement benefit like the provident fund or pension. At one time it was treated as payment gratuitously made by the employer to his employee at his pleasure, but as a result of a long series of decisions of industrial tribunals gratuity has now come to be regarded as a legitimate claim which workmen can make and which, in a proper case, can give rise to an industrial dispute. Gratuity paid to workmen is intended to help them after retirement, whether the retirement is the result of the rules of superannuation or of physical disability. The general principle underlying such gratuity schemes is that by their length of service workmen are entitled to claim a certain amount as a retrial benefit.
Examining the claim of gratuity vis-a-vis a retrenched employee, the Apex Court has elaborated significance of gratuity in Para 7 of the verdict, which reads as under:
(7) It is true that a retrenched workman would by virtue of his retrenchment be entitled to claim retrenchment compensation in addition to gratuity; because industrial adjudication has generally taken the view that the payment of retrenchment [8] compensation cannot affect the workmen's claim for gratuity. In fact the whole object of granting retrenchment compensation is to enable the workman to keep his gratuity safe and unused so that it may be available to him after his retirement. Thus the object of granting retrenchment compensation to the employee is very different from the object which gratuity is intended to serve. That is why on principle the two schemes are not at all irreconcilable nor even inconsistent; they really complement each other; and so, on considerations of social justice there is no reason why both the claims should not be treated as legitimate. The fact that they appear to constitute a double benefit does not affect their validity.
That is the view which industrial tribunals have generally taken in a large number of reported decisions on this point.
The Supreme Court yet again examined the concept of gratuity vis-a-vis pension in case of Sudhir Chandra Sarkar Vs. Tata Iron & Steel Company Limited [(1984) 3 SCC 369]. Recognizing gratuity as a retiral benefit, the Apex Court has made following observations in Para 16 & 17 of this verdict.
16. Pension and gratuity coupled with contributory Provident Fund are well recognised retiral benefits. These retiral benefits are now governed by various statutes such as the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the Payment of Gratuity Act, 1972. These statutes were legislative responses to the developing notions of fair and humane [9] conditions of work, being the promise of Part IV of the Constitution. Art. 37 provides that the provisions contained in Part-IV-Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." Art. 41 provides that 'the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.' Art. 43 obligates the State to secure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure........' The State discharged its obligation by enacting these laws. But much before the State enacted relevant legislation, the trade unions either by collective bargaining or by statutory adjudication acquired certain benefits, gratuity being one of them. Pension and gratuity are both retiral benefits ensuring that the workman who has spent his useful span of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment. It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service.
16. Can such social security measures be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earned the same by long continuous service ? If Rule 10 is interpreted as has [10] been done by the High Court, such would be the stark albeit unpalatable outcome. It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated. In Burhanpur Tapti Mills Ltd. v. Burhanpur Tapti Mills Mazdoor Sangh wherein this Court observed that: "a Scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a period payment of a stated sum." Undoubtedly both have to be earned by long and continuous service. The Apex Court in case of Delhi Transport Corporation Retired Employees' Association Vs. Delhi Transport Corporation & Ors. [(2001) 6 SCC 61], while recognizing gratuity as an essential retiring benefit has made following observations in Para 20 & 21 of the judgment:
20. Gratuity is essentially a retiring benefit payable to a workman which as per the Statute has been made payable on voluntary resignation as well. Gratuity is a reward for good, efficient and faithful service rendered for a considerable period. A workman gains experience during his tenure of employment. An experienced workman is capable of securing another employment with better emoluments. He can also be tempted by other employers with more lucrative salary. The exit of an experienced workman would surely be a loss for his employer. In British Paints (India) Ltd.
vs. Workmen (AIR 1966 SC 732), it was held that "a longer minimum in the case of voluntary retirement or resignation makes it more probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation." [11]
21. In Workmen vs. Ahmedabad Municipal Corporation, it was held as under :
"The fundamental principle in allowing gratuity is that it is a retirement benefit for long services, a provision for old age and the trend of the recent authorities as borne out from various awards as well as the decisions of this Tribunal is in favour of double benefit..... We are, therefore, of the considered opinion that Provident Fund provides a certain measure of relief only and a portion of that consists of the employee's wages, that he or his family would ultimately receive, and that this provision in the present-day conditions is wholly insufficient relief and two retirement benefits when the finances of the concern permit ought to be allowed."
In Ahmedabad Primary Teachers Association Vs. Administrative Officer & Ors. [(2004) 1 SCC 755], the Apex Court, while examining the aims & objects of payment of gratuity Act 1972, emphasized the need for grant of gratuity akin to pension as a retiral benefit. The Apex Court made following observations in Para 6 & 7 of this verdict.
6. The Act is a piece of social welfare legislation and deals with the payment of gratuity which is a kind of retiral benefit like pension, provident fund etc. As has been explained in the concurring opinion of one of the learned judges of the High Court 'gratuity in its etymological sense is a gift, especially for services rendered, or return for favours received.' It has now been universally recognized that all persons in society need protection against loss of income due to unemployment arising out [12] of incapacity to work due to invalidity, old age etc. For the wage earning population, security of income, when the worker becomes old or infirm, is of consequential importance. The provisions contained in the Act are in the nature of social security measures like employment insurance, provident fund and pension. The Act accepts, in principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments.
7. Thus, the main purpose and concept of gratuity is to help the workman after retirement, whether retirement is a result of rules of superannuation, or physical disablement or impairment of vital part of the body. The expression, 'gratuity' itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is a sort of financial assistance to tide ever post-retiral hardships and inconveniences.
In the instant case, the bone of contention is Statute 35 of the Statutes of the respondent University and as both the learned counsel for the rival parties have placed reliance on the said Statute, it has become imperative for this Court to examine Statute 35 objectively to deduce a meaningful construction of the same. The relevant exceprt of Statute 35 is reproduced as infra:[13]
35. (1) These Rules shall be called Jai Narain Vyas University, Jodhpur Payment of Gratuity to Empmployees Rules, 1970.
(2)These Rules shall come into force with effect from 1-4-69.
(3) Applicability: These rules are intended to provide extra retirement benefit which is in the form of ex-gratia payment to the employees of the University. They shall apply to:
(i) All employees joining service in University on or after the date of coming into force of these rules.
(ii) All employees who are in service of the University on 1-4-69 and opt for the gratuity scheme under these rules in the manner detailed in clause 4 below.
These rules shall not apply to the following persons:
(a) Employees holding an appointment under contract, unless the terms of contract provide otherwise,
(b) an appointment for a fixed term,
(c) an appointment on fixed pay,
(d) an appointment on re-employment,
(e) employees on work-charge basis.
(4)Option:
(i) Employees in service of the University on 1-4-69 shall have the right to opt for this scheme or (b) to continue existing CPF scheme of the University. Option shall be exercised and communicated to the Registrar in writing within 3 months from the date of notification of the Statute.
Option once exercised shall be final and irrevocable, and in case no option is received by the date specified for the purpose it shall be deemed that employee has opted for the gratuity scheme under these rules.
[14]
Exception:
In case of an employee who is absent from duty on the date of the notification of these rules, on account of being on deputation or study leave either in India or abroad, the Registrar shall send a copy of this Statute to such an employee and shall ask him to exercise his option in the manner and within the period specified above.
(ii) In the case of an employee who was in the service of the University on the date of coming into force of these rules and died whilst still in service on the same date or on a subsequent date before having opportunity of exercising the option under clause (i) above, the person or persons validly nominated under Statute 33 for receiving the amount standing to the credit of the employee's Provident Fund, can make specific request to the Vice Chancellor to permit the nominee or nominees joinly, to opt for the gratuity scheme and the Vice-Chancellor shall have the discretion to accede to the request of the said nominee or nominees of the deceased provided that any payment already made or agreed to be made on monthly basis to the nominees of the deceased shall reckon towards the amount of death gratuity admissible to him/her under Clause 10.
Now, considering the factual backdrop of the case that the petitioner has rendered services of more than three decades under the respondent University before switching on to workcharged establishment, and the fact that regular deduction was made by the employer University from his monthly salary for creating fund of gratuity, which is explicitly clear from the monthly salary statement of the [15] petitioner Annex.7, the irresistible conclusion of this Court is that the University has treated the petitioner a regular employee and his entitlement for the gratuity was never under any cloud. That apart, a plain reading of Statute 35 (4) makes it abundantly clear that there is a deeming provision making an employee entitled for gratuity even in absence of submission of option for gratuity scheme.
On Close scrutiny of Statute 35 and its purposeful interpretation, this Court feels that the grauity scheme was floated by the University in the form of beneficial piece of legislation and its sole object was to provide some solace to its employees at the time of superannuation as a measure of social security. The ratio decidendi of the judgments of Apex Court referred to supra are clear and unequivocal that gratuity as a retiral benefit is well recognized and payment of the said amount is not dependent on the sweetwill of the employer or at the whims and fancy of the employer. Thus, viewed from any angle, the claim of the petitioner for grauity for the interregnum period from 1963 to 1995 is genuine and legitimate and accordingly he is declared entitled for the benefits of grauity.
[16]
The upshot of the above discussion is that the writ petition is allowed. The respondent University is directed to pay amount of gratuity by treating his regular services from 1964 to 1995 and work out the amount payable to the petitioner as expeditiously as possible preferrably within a period of two months from the date of this order. The University is further directed to ensure payment of the gratuity amount to the petitioner within a month thereafter. The petitioner is also declared entitled for interest on the arrears of his gratuity amount @9% per annum to be calculated from the date of institution of this writ petition. No order as to costs.
(P.K. LOHRA), J.
arora/