Document Fragment View

Matching Fragments

5. The case of the respondent - Bank relying upon the provision of Regulation 46 (2) of the Pension Regulations is that the gratuity is not payable during the pendency of the criminal case against him as referred to above. The further case is that gratuity payable to the employees of the Bank is more beneficial than the gratuity payable under the Gratuity Act and as such, the provisions of pension regulation is to be given effect and in terms of Regulation 46(2) where provisional pension is being paid during the pendency of departmental or judicial proceeding gratuity is not payable during the pendency of Proceeding besides Bank has its own gratuity payment rules with respect to the gratuity known as UCO Bank Employees Gratuity Fund Rules (Annexure - F of the supplementary affidavit)

9. Mrs. Nilu Agarwal learned counsel appearing for the Bank submits that the Bank Regulations for payment of the gratuity are applicable since it being special in nature vis-à-vis the Gratuity Act which is general in nature. However, learned counsel is not in a position to state that the Bank was exempted from the applicability of the Gratuity Act in terms of Section 5 of the Act. The learned counsel also refers to the provision of UCO Bank (Employees) Gratuity Fund Rules vide Annexure- F to the counter affidavit in order to show that the aforesaid Gratuity Fund Rules of the Bank provide a more beneficial scheme vis-a-vis under the Payment Of Gratuity Act 1972.

(e) which excludes the employees of the Central Government and State Governments receiving pension and gratuity under the Pension rules but an employee of the MCD. The MCD employees, therefore, would be entitled to the payment of gratuity under the Payment of Gratuity Act. The mere fact that the gratuity is provided for under the Pension Rules will not disentitled him to get the payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of Payment of Gratuity Act, the provision of Gratuity under the Pension Rules will have no effect. Possibly for this reason Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate Government to exempt any establishment from the operation of the provisions of the Act, if in its opinion the employees of such establishment are receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly MCD have not taken any steps to invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises, we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of the Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under the Pension Rules".

12. From the above decisions of the Apex Court it is manifest that the provision of the Gratuity Act for the purpose of payment of gratuity has to be given effect in case of any conflict with any of the provisions contained in any other Enactment, Regulation or an Act which are inconsistent with the provisions of Gratuity Act. As such, any provision with regard to the payment of gratuity in the Pension Regulations of the bank which are inconsistent with the provision of the Act can have no effect in law and therefore, the decision of the bank withholding the payment of gratuity of the petitioner in absence of any of grounds as mentioned in sub-Section 6 of Section 4 of the Gratuity Act is not sustainable in law. Moreover, the Rules of the Bank for payment of gratuity as brought by the respondent - Bank on the record vide Annexure- F to its supplementary counter affidavit virtually states only those grounds for forfeiting of the gratuity which are mentioned in Section 4 (6) of the Gratuity Act. The rule 10 (a) (b) of the aforesaid UCO Bank (Employees) Gratuity Fund Rules (Annexure-F) are quoted below :