LANDMARK JUDGMENT OF HON'BLE HIGH COURT OF PUNJAB AND HARYANA PAYMENT OF GRATUITY ACT, 1972:- PAYMENT OF GRATUITY TO SH. AVTAR SINGH GRAMIN DAK SEVAKS (DUE TO HIS RESIGNATION). IN THE HIGH COURTH OF PUNJAB AND HARYANA AT C.W.C. No. 5290 of 2009 DATED OF DECISIOIN: 01.04.2009 Senior Superintendent of Post Offices. Hoshiarpur Division, Hoshiarpur ……PETTIONER Versus Shri Avtar Singh and others ……RESPONDENTS CORAM: - HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Namit Kumar, Advocate, for the petitioner. *** SATISH KUMAR MITTAL.,J The petitioner has filed this petition under Article 226 of the Constitution of India for quashing the orders dated 1.2.2008 (Annexure P-5) and 10.11.2008 (Annexure P-7), passed by the Controlling Authority and the Appellate Authority, respectively, whereby the application filed by respondent No.1 for payment of gratuity under the Payment of Gratuity Act, 1972 bas been accepted and the petitioner has been directed to pay an amount of Rs.43,232/- along with interest. A perusal of the order, Annexure P-7, indicates that the authority has taken notice of a Division Bench judgment of the Court in the case of Sr. Supdt. of Post Offices vs. Smt. Sham Dulari & others (CWP No. 7576 of 2006), decided on 18.5.2006), whereupon relief has been granted to the respondents. It has further been contended that the order was challenged before the Hon'ble Supreme Court of India. The same, however, has been upheld. Learned counsel for the petitioner has been very fair in appending the judgment passed by the Division Bench of this Court, referred to above, as Annexure P-8, reported as 2006 (3) SCT 577. Considering the fact that learned counsel for the petitioner has not been able to distinguish the judgment of the Division Bench of this Court, no ground for interference by this Court is made out. Learned counsel for the petitioner has raised an additional issue of delay on the part of the respondent in approaching the authorities. The issue has been dealt with in impugned order. Annexure P-5. It has been recorded that delay was caused for reasons beyond the control of the petitioner and therefore, is condoned to meet the ends of social justice. I find no reason to interfere with the said reasoning. The petition is, accordingly, dismissed.
Sd/- Shri Satish Kumar Mittal, Judge April, 01,2009
BEFPRE THE CPNTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 AND ASSISTANT LABOUR COMMISSIONER (CENTRAL), CHANDIGARH IN THE MATTER OF GRATUITY CASE FILED BY SHRI AVTAR SINGH, AGAINST THE SENIOR SUPERINTENDENT OF POST OFFICES, HOSHIARPUR. Application No.48(9)/2007-ACH. R.K. AGGRAWAL, CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT 1972, AND ASSISTANT LABOUR COMMISSIONER (CENTRAL)-li BETWEEN SHRI AVTAR SINGH, S/O SH. JAGAT SINGH C/O SH. R.K. SINGH PARMAR, 211-L, BRARI, DISTT. ROPAR. AND SENIOR SUPERINTENDENT OF POST OFFICES, DEPTT. OF POST & TELEGRAPHS, HOSHIARPUR.. NON-APPLICANT APPEARANCES: SH. R.K. SINGH PARMAR, AUTHORISED REP FOR APPLICANT SHRI HARMESH LAL, SPM GARSHANKAR AUTHORISED REP FOR NON-APPLICATN ORDER UNDER SECTION 7(4) OF THE PAYMENT FO GRATUITY ACT, 1972 AND RULE 11(4) This is an application in form 'N' under sub rule 1 of the rule 10 of the Payment of Gratuity (Central) Rules, 1972 (hereinafter referred to as "The Rule") filed by Shri Avtar Singh (hereinafter referred to as the "Applicant") claiming gratuity for the period of service rendered in Sr. Superintendent of Post Offices, Hoshiarpur (hereinafter referred to as the 'Non applicant'). The applicant in his application dated 19.2.07 has prayed this authority to issue necessary directions upon the Non-Applicant to pay him due gratuity along with interest on delayed payment of gratuity. A copy of application in Form-N submitted by the applicant was sent to the opposite party for comments as well as to attend hearing on 4.4.07. The case was further heard on various dates and finally concluded on 17.12.07. On perusal of the application, it found that the service of applicant Sh. Avtar Singh, was terminated on 29.8.05 due to his resignation. The applicant has filed the application on 19.2.07 i.e. after the lapse of about 2 years, hence, there is delay in filing of application on the part of applicant. The applicant has also filed an application dated 19.2.07 requesting this authority to condone the delay involved in the matter by submitting the reasons of delay but failed to appreciate expressively for day to day delay condonation in the matter. The matter has been taken into the record. A notice in form 'O' was issued upon the non applicant, with the copy to the applicant, advising them to attend hearing on 4.4.07, in person or through a duly authorized representative for the purpose of answering all material question relating to the application in support of/ to answer the allegations. The applicant during the hearing argued this authority to condone the delay involved in the matter, as he was ignorant about the provisions of law. In this connection it has been observed that there are several judgments of Hon'ble high Court and Supreme Court of the Country, which enables the applicant to get the condonation on delay being the payment of Gratuity Act is a social legislation. "The court have observed that the gratuity is social welfare legislation Workers cannot be deprived of the same merely on account of late filing of application. Discretion exercised accordingly is just and proper. No. Interference required-Textmo Limited Vs. Ramdhan 1992 (65) FLR 742 ( Under the circumstances, I find that the delay is caused beyond the control of the applicant and the matter is condonable, hence, condoned to meet the end of social justice. The applicant in his application submitted that he has joined establishment of Non-Applicant on 2.11.76 and his services were terminated on 29.8.2005 on resignation. He has submitted that his last drawn wages was Rs. 2584/- PM including DA and he has completed 28 year 9 months and 27 days i.e. 29 years of Continuous Services in the establishment of Non-Applicant. The applicant requested to issue necessary directions upon the Non-Applicant to enable him to get gratuity alongwith interest on delay payment of gratuity. During the course of argument in the matter, the representative of Non-Applicant informed that the applicant is not entitled to get gratuity as he was a Govt. employees. They have further submitted that the applicant is not falling within the definition of 'Employees' under Section 2-e of PG Act,1972 in the light of Hon'ble Supreme Court of India decision in case of Union of India and others Vs Kameshwar Parshad (1998) SCC(L&S) 447 in which the Hon'ble Supreme court has held that the EDA employees are holding post under Central Govt. The applicant submitted that the contention of Non-Applicant is not proportionate as he was not holding the post under Central Govt. nor the Non-Applicant has paid gratuity in accordance with the provisions of D.C.R.G. as applicable to the Central Govt. employees. The Applicant further pleaded that the Hon'ble Supreme Court of India in case of Kameshwar Parshad have not held that the EDA Employees holding posting under Central Govt. are not entitled to get gratuity under the provisions of Payment of Gratuity Act,1972.. The Supreme Court has simply held that EDA employees are Civil servant and entitled for protection under article under 311(2) of the Constitution of India. In support of his pleading, the applicant drawn the attention towards the provisions of Section 5 and 14 of PG Act,1972 by which the provisions of PG Act to over rides the provisions of EDA (Conduct and Services Rules) and nothing shall effect the right of employees to receive better terms of gratuity. The bone contention of the Non-Applicant is that the claim of applicant is not admissible under the provisions of PG Act as the applicant was not an employees within the meaning of Section 2-e of the PG Act. Moreover, the services of applicant was governed by EDA (Conduct and Services) Rules. Under the circumstances, it is amply clear that the applicant was holding a post not Governed under CCS (Pension) Rules. The services condition of the workman was governed under the provision of E.D. Agents. The EDA (Extra Departmental Agents) no known as Gramin Dak Sevaks but the provisions of EDA (Conduct and Services) Rules are less favorable than the provisions of PG Act,1072. Under the circumstances, I am of the opinion that the applicant will fall within the ambit of Section 2(e) of PG Act, 1972. Further there is no dispute regarding the date of appointment, the date of termination and the amount of last drawn wages, as the same has been verified by the non-applicant from their official records. In view of foregoing discussion, I have no hesitation to consider that the applicant is entitled for the gratuity in accordance with the provision of PG Act,1972. The Representative of No-Applicant has also not disputed about that continuance of the service between the dated of appointment and the date of termination. The applicant is entitled for payment of gratuity as under:- Last drawn wages 2584/- Date of appointment 2.11.1976. Date of terminated 29.8.2005 Total period of services 28 years 9 months & 27 days (say 29 years) Gratuity payable @ 15 days for each completed year of service and part thereof, thus amount of gratuity will be:- 2584X15X29 =43232.30/- (Say Rs. 43232/-) 26 The applicant was thus entitled for the gratuity amounting to Rs.43232/- on the date of terminated of his service i.e. 29.8.2005. Summing up my findings I hold that the applicant is entitled to receive the gratuity amounting to Rs.43232/- alongwith simple interest @ 10% per annum on the gratuity amount of Rs.43232/- from 29.8.2005 to the date of payment. This is my findings and directions in this regard issued accordingly. Issued under my hand and Seal on this day of 1-2-2008. Sd/- (R.K.AGRAWAL) Controlling Authority under PG Act, 1972 & Assistant Labour Commissioner (Central) Date 1.2.08 |
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