Uttarakhand High Court
Hon'Ble Manoj K. Tiwari vs Clc "Inspector Of Post Offices & Others ... on 19 November, 2020
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
WPMS No. 117 of 2018 Hon'ble Manoj K. Tiwari, J.
Mr. Atul Bahuguna, Advocate for the petitioners.
Mr. M.S. Pal, Senior Advocate, assisted by Mr. Sachin, Advocate for the respondent.
Heard learned counsel for the parties through video conferencing.
This writ petition has been filed by the Postal Authorities challenging the order dated 29.03.2016 passed by Controlling Authority/ Assistant Labour Commissioner (Central) Bareilly in Case No. 36 (4) 2015 "Shri Tara Dutt Joshi Vs. The Post Master General & others". The order passed by the Appellate Authority/Deputy Chief Labour Commissioner (C), Dehradun in F.No.-D-36(35)/2016/Dy. CLC "Inspector of Post Offices & others Vs. Shri Tara Dutt Joshi" has also been challenged by the petitioners.
It transpires that the respondent was engaged as Chaukidar on daily wages in Sub Post Office Thal, District Pithoragarh on 01.05.1978 and, after rendering more than 36 years of continuous service, his appointment was discontinued, as he had completed the age of superannuation.
It is an admitted position that services of the respondent were never regularized, therefore, he was not governed by the Central Civil Services (Pension) Rules, 1972, thus, after completing age of superannuation, respondent was not paid terminal benefits, including gratuity.
Respondent approached the Controlling Authority under Payment of Gratuity Act, 1972 by filing an application. His application was allowed by the Controlling Authority vide order dated 29.03.2016 and it was held that respondent is entitled to get the gratuity amounting to ` 5,10,445/- alongwith interest @ 10% from the date it became payable to the date of its actual payment. The Postal Authorities challenged the order passed by Controlling Authority before the Appellate Authority. The Appeal filed by the Postal Authorities too was dismissed. Thus, feeling aggrieved by the order passed by Controlling Authority as well as Appellate Authority, the Postal Authorities have filed this writ petition.
Learned counsel for the petitioners vehemently argued that, in Postal Department, Central Civil Services (Pension) Rules, 1972 are applicable, therefore, all Postal Employees are paid pension, gratuity etc. as per provisions contained in the said Rules. He further submits that the provisions contained in Payment of Gratuity Act, 1972 are not applicable to the Postal Employees. He further submits that respondent was offered promotion to the post of Multi-Tasking Staff in the year 2013; but, he refused to join the said post and continued working as Chaukidar on daily wages.
The submissions made by learned counsel for the petitioners are bereft of merit. Rule 2 (b) of Central Civil Services (Pension) Rules, 1972 provides that these Rules shall apply to the persons appointed substantively to Civil Services and posts in connection with the affairs of the Union of India; but, provisions contained in the said Rules shall not apply to the persons who are casual or a daily rated employee. This aspect has been dealt with by the Controlling Authority, in great detail, in his order dated 29.03.2016 and has rightly come to a conclusion that since benefit of Service Rules applicable to Government Employees is not available to the respondent, therefore, he can avail benefit of provisions contained in Payment of Gratuity Act, 1972. Although, in paragraph no. 8 of the writ petition, it has been stated that respondent was offered promotion as Multi-Tasking Staff vide order dated 27.06.2013, however, it has nowhere been stated that the said promotion was offered to him in regular cadre against a permanent post.
Learned Senior Advocate for the respondent submits that promotion offered as Multi-Tasking Staff to the respondent would not have changed his status and his status would have continued to be that of a daily rated casual worker.
This Court finds substance in the contention made on behalf of the respondent. Offer of promotion, if accepted by the respondent, would not have altered his status qua applicability of provisions contained in Central Civil Services (Pension) Rules, 1972.
Learned counsel for the petitioner has harped on the fact that petitioner refused to accept the offer of promotion.
In my humble opinion, petitioners cannot lay store on the refusal on the part of respondent to accept the promotion. The provisions contained in Payment of Gratuity Act, 1972 would become inapplicable to the respondent only if the benefit of Central Civil Services (Pension) Rules, 1972 was extended to him. Since provisions of Central Civil Services (Pension) Rules, 1972 were never extended to the respondent till cessation of his employment, therefore, the contention raised on behalf of the petitioner is without any merit.
The Controlling Authority, after considering Section 2 (e) of the Act, has rightly held that respondent was not appointed to any Civil Post under Union of India, therefore, provisions of Payment of Gratuity Act, 1972 are attracted to him, as no exemption under Section 5 was obtained by the respondents.
The Controlling Authority has rightly held the respondent to be entitled to benefit under Payment of Gratuity Act, 1972, therefore, Appellate Authority was justified in dismissing the Appeal filed by the Postal Authorities.
The Appellate Authority has also considered the import of relevant provisions of Payment of Gratuity Act, 1972 while dismissing the Appeal.
Even otherwise also, it was not contended before the Controlling Authority that exemption under Section 5 of Payment of Gratuity Act, 1972 was taken by the Postal Authorities qua daily rated casual workers, therefore, the Controlling Authority was justified in holding that the daily rated casual workers of Postal Department are entitled to benefits under Payment of Gratuity Act, 1972.
In such view of the matter, this Court does not find any reason to interfere with the orders impugned in this writ petition.
Accordingly, the writ petition fails and is dismissed.
There will be no order as to costs.
Registry is directed to release the amount deposited by the petitioner in favour of respondent within three weeks from today.
(Manoj K. Tiwari, J.)
Arpan 19.11.2020