Madras High Court
The Commissioner, Coimbatore ... vs A.V. Poulose And Ors. on 5 November, 1990
Equivalent citations: (1991)405MLJ1
ORDER Kanakaraj, J.
1. All these writ petitions raise an identical question as to whether the first respondent in each of the cases is entitled to gratuity on the basis that they had worked upto the age of 58 years and at the scales of pay as revised in G.O.Ms. No. 859, Rural Development and Local Administration Department, dated 26.5.1980. I will set out the facts in W.P. No. 168 of 1983. The first respondent was employed as a Meter Reader in the Electricity Department of the Coimbatore Municipal Corporation. Under the Tamil Nadu District Municipalities Act which alone was applicable at the relevant date, the age of superannuation was 55 years. The petitioner attained, the age of superannuation viz., 55 years orrl4.10.1978. But according to the first respondent, he was entitled to continue in service till he attained the age of 58 years. Therefore he filed a writ petition W.P. No. 4095 of 1978 and obtained an interim order of stay. In the meanwhile with effect from 1.4.1979, the age of retirement itself was raised to 58 years. The petitioner attained the age of 58 years on 14.10.1981 and he was relieved from duty on that date. Subsequently, the writ petition was dismissed as infructuous. The first respondent claimed before the Controlling Authority gratuity of Rs. 15,864-00 on the basis that he had worked from 1.7.1949 to 14.10.1981 and the wages payable should be on the basis of the revised scales of pay applicable to all employees in G.O.Ms. No. 859, Rural Development and Local Administration Department, dated 26.5.1980. The petitioner in this writ petition contested the claim on the following grounds; (1) The first respondent should be deemed to have retired on 14.10.1978 and his continuance on the basis of the said order granted by this Court cannot give him any added benefit. Accordingly, the gratuity should be worked out only upto 14.10.1978 and at the rate of Rs. 350 which was the salary last drawn by him on 14.10.1978. Secondly, it was contended that the Act will not apply because the first respondent was not employed in a factory and he was not an employee within the meaning of the Act. The third respondent, the Controlling Authority by an order dated 24.5.1982 rejected all the objections of the petitioner and directed payment of a sum of Rs. 14,491.20 on the basis that the first respondent had worked for 32 completed years (upto 14.10.1981) and the wages should be worked out on the basis of the revised scales prescribed in G.O.Ms. No. 859, R.D. & L.A. Department, dated 26.5.1980. The petitioner filed an appeal to the second respondent and the same was dismissed on 30.9.1982. The writ petition is to quash the said orders. Mr. P.M. Bhaskaran, learned Counsel for the petitioner raises the very same grounds that were urged before the authorities below. He also refers to the fact that the Payment of Gratuity Act was specifically extended to local bodies only with effect from 8.1.1982. The decision in The Coimbatore Municipality represented by the Commissioner, Coimbatore v. K. Thiruvenkataswami I.L.R. (1973) 1 Mad. 405 (D.S.), is first relied on. That was a case relating to the very same Coimbatore Municipality and the question involved was whether an employer of the Municipality working in the Electricity Department attains the age of superannuation at the age of 55 years or at the age of 58 years. The Division Bench held that the age of superannuation will be only 55 years as prescribed by the Tamil Nadu District Municipalities Act and not 58 years as per the Model Standing Orders. The said judgment was rendered, even though in that case also the employee had continued in service till he attained the age of 58 years on the basis of interim orders of the Court. Mr. Bhaskaran relies on this judgment for the reasons; (1) That the age of retirement is only 55 years; (2) That the Court has held that the Coimbatore Municipality is not a factory within the meaning of the Factories Act and not even an industrial establishment within the meaning of the Payment of Wages Act. In coming to the said conclusion, the Division Bench held that the Tamil Nadu District Municipalities Act will prevail over the Standing Orders Act. It is not now disputed before me that this reasoning of the Division Bench has been superseded by a Full Bench of this Court in Bagianathan and Ors. v. Secretary to Government of Tamil Nadu Rural Development and Local Administrations Department and Ors. (1984) 2 L.L.J. 273. Overruling the said reasoning, the Full Bench held that the Standing Orders Act, being a special Act relating exclusively to the Service conditions of persons employed in industrial establishments its provisions will prevail over the provisions of the District Municipalities Act or the rules framed by the State Government under Section 74. It appears to me that the present case can be decided without reference to the above judgments, on the basis of the provisions of the Payment of Gratuity Act. Even the ratio of the Division Bench judgment in The Coimbatore Municipality represented by its Commissioner, Coimbatore v. R. Thinivenkataswami I.L.R (1973)1 Mad. 405, on the question whether the Coimbatore Municipality is a factory or an establishment cannot be followed while considering a case under the Payment of Gratuity Act. The relevant provisions are slightly different and I will advert to the same a little, later. Section 1(3) of the Payment of Gratuity Act, 1972 is as follows:
3. It shall apply to-
(a) every factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments, in a State, in which ten or more persons, are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central ; Government may, by notification specify, in this behalf.
We can ignore the reference to factory. We have to be content with the words "shops or establishments" within the meaning of any law for the time being in force in relation to shops and establishments in a State. The said words in Section 1(3)(b) of the Payment of Gratuity Act came up for interpretation before the Supreme Court in State of Punjab v. Labour Court, Jullundur and Ors. (1981) 1 L.L.J. 354. The following passage is relevant for the purpose of this case:
Section 1(3)(b) speaks of "any law for the time being in force in relation to shops and establishments in a State." There can be no dispute that the Payment of Wages Act is in force in the State of Punjab. Then, it is submitted, the Payment of Wages Act is not a law in relation to "shops and establishments." As to that the Payment of Wages Act is a statute which, while it may not relate to shops, relates to a class, of establishments, that is to say, industrial establishments.
Mr. M.P. Subbaya, learned Counsel for the first respondent in each of the cases refers to the definition of the word "establishment" in the Contract Labour (Regulation and Abolition) Act, 1970, On the basis of the judgment of the Supreme Court above referred to the Contract Labour (Regulation and Abolition) Act, 1970 must be construed as "any law" for the time being in force in relation to the shops and establishments in a State. That Act defines establishment as follows in Section 2(e)of the Act:
2(e). "establishment" means-
(i) any office or department of the Government or a local authority, or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on." Inasmuch as the local authority is brought within the word "establishment", it seems to me to be wholly unnecessary to go into the other aspects of the case and the conclusion is inescapable that the Payment of Gratuity Act applies to the Coimbatore Municipality which has since become a Corporation. I have already pointed out that the judgment of the Division Bench in The Coimbatore Municipality represented by its Commissioner, Coimbatore v. K. Thiruvenkataswami I.L.R. (1973) 1 Mad. 405 (D.S.), holding that the Coimbatore Municipality is not a factory within the meaning of the Factories Act, need not be adverted to in this case because the Coimbatore Municipality can in any event be brought under the word "establishment". Both the authorities below have, however, held that the Coimbatore Municipality is a factory within the meaning of the Factories Act. Inasmuch as I have held that the Coimbatore Municipality will, in any event, come under the word "establishment", it is not necessary to waste more time on this aspect of the case. What follows is that the Payment of Gratuity Act squarely applies to the first respondent in each of the cases. The contention that the Payment of Gratuity Act has been specially extended to local bodies only from 8.1.1982, does not help the petitioner because even without such a notification, on the basis of the Act itself, one can come to the conclusion that the Payment of Gratuity Act applies to the local bodies. The first contention of the learned Counsel for the petitioner, therefore, falls.
2. Coming to the second contention that the Division Bench in The Coimbatore Municipality represented by its Commissioner, Coimbatore v. K. Thiruvenkataswami I.L.R. (1973) 1 Mad. 405 (D.S.), has held that 55 years is the age of superannuation for employees of the Coimbatore Municipality, I find it is not necessary to go into this question, at all. This is because Section 4 of the Payment of Gratuity Act is as follows:
4. Payment of gratuity;
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years-
(a) on his superannuation or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease;
[Provisions are omitted] The contention of Mr. M.P. Subbaya, learned Counsel for the first respondent in each of the cases is even under Section 4(1)(b), the first respondent must be held to have retired only on 14.10.1981. In interpreting the said Section, reliance is placed on the decision in The Management of Goodyear India Ltd. v. Shri K.G. Devessar . The following dicta of the Supreme Court squarely apply to the facts of this case:
We think the only reasonable way of construing Section 4 in the light of the definition of employee in Section 2(e) is to hold that a person whose services are terminated for any of the reasons mentioned in Section 4(1) after the coming into force of the Act is entitled to the payment of gratuity, if he has rendered continuous service for not less than five years, for that period during which he satisfied the definition of employee under Section 2(e) of the Act.
Therefore, the question whether the first respondent in each of the cases had continued till the age of 58 years only under the interim orders of this Court and not by virtue of any valid declaration in their favour need not be gone into at all. Assuming that the first respondent had been retired only after attaining the age of 58 years, the Payment of Gratuity Act says that the employees are entitled to gratuity upto the said date. 3.'We are left with the last contention whether the wages for the purpose of calculating the gratuity should be taken as the last drawn wages on the first respondent's attaining the age of 55 years in each case of the wages that they are entitled to get as per G.O.Ms. No. 859, R.D. & L.A., dated 26.5.1980, as on the date they attained the age of 58 years. The word "wages" has been defined in the Payment of Gratuity Act as follows:
"Wages" means all emoluments which are earned by any employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus commission, house rent allowance, overtime wages and any other allowances.
I am, therefore, of the opinion that the authorities below were right in holding that wages payable as per the Government Order G.O.Ms. No. 859, R.D. & L.A., dated 26.5.1980, as on the date when the first respondent was actually relieved should be taken as the wages for the purpose of calculation of the gratuity. Further, having held that as per Section 4 of the Act, the date when the first respondent attained the age of 58 years is alone the criterion for payment of gratuity, the contention of the writ petitioner on this aspect also cannot be accepted. Therefore, all the points raised by the petitioner fail and the writ petitions are dismissed. There will be, however, no order as to costs.