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ALL
INDIA GRAMIN DAK SEVAKS UNION (AIGDSU)
(Central
Head Quarter)
First Floor, Post Office Building,
Padamnagar, Delhi 110007
President: M.
Rajangam
General Secretary
S.S. Mahadevaiah
Letter No. GDS/76 /01/2015 Dated: 23/03/2015
To
The Secretary,
Department of Posts,
Dak Bhavan,
New Delhi-110001
Subject:- Request for honouring the judgement of High
Court of
Punjab and
Haryana at Chandigarh-Reg.
Madam,
This union is herewith
forwarding the judgement of High Court of Punjab and Haryana at Chandigarh for
your kind consideration and favourble action.
Suitable instructions may
be issued to the competent authority for the implementation of the cited
judgement and requesting to extend the judgement to all GDS.
With regards
Yours faithfully,
(S.S.
Mahadevaiah)
General Secretary
L.P.A. No.406 of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1)
L.P.A. No.406 of 2009 (O&M).
Decided on:-February 28, 2014.
Senior
Superintendent of Post Offices, Jalandhar Division, Jalandhar.
…….........Appellant.
Versus
Darshan
Ram (through LRs) and others .........Respondents.
(2)
L.P.A. No.407 of 2009 (O&M).
Senior
Superintendent of Post Offices, Faridkot Division, Faridkot.
….........Appellant.
Versus
Naib
Singh and others .........Respondents.
(3)
L.P.A. No.408 of 2009 (O&M).
Senior
Superintendent of Post Offices, Faridkot Division, Faridkot.
.........Appellant.
Versus
Bimla
Devi and others .........Respondents.
L.P.A.
No.406 of 2009
(4)
L.P.A. No.618 of 2009 (O&M).
Senior
Superintendent of Post Offices, Hoshiarpur Division, Hoshiarpur.
.........Appellant.
Versus
Avtar Singh and others .........Respondents.
(5)
L.P.A. No.619 of 2009 (O&M).
Senior
Superintendent of Post Offices, Jalandhar Division, Jalandhar.
.........Appellant.
Versus
Santokh
Singh and others .........Respondents.
CORAM: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mr. Justice
Dr. Bharat Bhushan Parsoon.
*****
Argued
by:- Mr. Namit Kumar, Advocate
for
the appellant in all the appeals.
Mr.
Madan Mohan, Advocate for LRs of
respondent
No.1 in the first appeal and for respondent No.1
in
the other appeals.
Mrs.
Kulwant Kaur Kahlon, Senior Panel Counsel with
Mr.
Amrit Pal Singh Kahlon, Advocate
for
respondents No.2 and 3.
Dr. Bharat Bhushan Parsoon, J.
Five Letters Patent Appeals bearing
Nos.406, 407, 408, 618 and 619 of 2009 arising out of adjudication of Civil
Writ Petitions bearing Nos.3450, 3452, 3449 (decided on 4.3.2009), 5290 and
5291 of 2009 (decided on 1.4.2009) respectively by the learned Single Judge for
adjudication are being taken up together as these are inter-connected.
2.
The only issue to be adjudicated in
these appeals is as to whether Extra Departmental staff of the Post Offices
earlier governed by the Posts and Telegraphs Extra Departmental Agents (Conduct
and Service) Rules, 1964 (for short, the Rules of 1964) and now governed by the
Gramin Dak Sevak (Conduct and Employment) Rules, 2001 (for short, the Rules of
2001) is covered under the Payment of Gratuity Act, 1972 (hereinafter called
the Gratuity Act) and thus, is entitled for payment of gratuity under the
Gratuity Act by the employer?
3. Private respondents in these appeals
having superannuated from their respective posts (which they were manning),
were paid ex-gratia gratuity @ half month’s basic allowance as drawn by them
immediately before laying down their offices for each completed year of
service, subject to a maximum of Rs.18,000/- or 16½ months basic allowance last
drawn, whichever is less. In addition to payment of this ex-gratia gratuity, a
severance allowance with a maximum limit of Rs.30,000/- was also paid.
4.
Having come to know that they have not
been paid their gratuity in terms of the Gratuity Act, the private respondents
had approached the Controlling Authority-cum-Assistant Labour Commissioner
(Central), Chandigarh-respondent No.2 (hereinafter called the Controlling Authority)
claiming gratuity under the Gratuity Act. Condoning the delay in filing of
their such claims, the Controlling Authority deciding the matter in favour of
the employees found that claim of the employees had merit and L.P.A. No.406 of
2009 -4- consequently, additional payment with 10% interest, was ordered in
each case.
5. Aggrieved with the said orders of the
Controlling Authority passed on different dates in case of different claim
petitions of the superannuated employees, the employer had preferred separate
appeals before the Appellate Authority-cum-Regional Labour Commissioner
(Central), Chandigarh-respondent No.3 (hereinafter called the Appellate
Authority). Rejecting plea of the employer that the employees were 'civil
servants' and thus, were not covered under the Act, in all these cases, orders
of the Controlling Authority were upheld. In these appeals, affirmation of the
said orders of the Appellate Authority by Hon'ble Single Bench of this Court,
is under challenge.
6.
For convenience and clarity, facts
have been taken from LPA No.406 of 2009.
7.
Claim of the appellant is that
employee Darshan Ram, now represented by his legal representatives, was a civil
servant and thus, was outside the purview of the Gratuity Act and could not
have been granted benefit of gratuity under the said Act. Liability to pay
additional amount of gratuity as ordered by respondent Nos.2 and 3 over and
above the ex-gratia gratuity earlier paid by them, is questioned.
8.
Citing Union of India and others v. Kameshwar
Parsad (1977) 11 SCC 650, it is contended by the counsel for the
appellant that holder of a civil post is not entitled to payment of gratuity
under the Gratuity Act and thus, the private respondents are not entitled for
additional payment under the Gratuity Act, as was ordered by the Controlling
Authority as well as by the Appellate Authority. It is claimed that affirmation
of these orders by the learned Single Bench of this Court is also against law.
9.
It is alleged that all retrial
benefits of the retiree Darshan Ram having been already paid, nothing more is
due towards him and the Gratuity Act being not applicable, no further liability
of the appellant exists.
10.
Countering this version, claim of the
private respondents is that neither Darshan Ram was holding a civil post nor
was he a civil servant and thus, he having died, his legal representatives are
entitled to the benefit under the Gratuity Act.
11.
Per contra, contention of the private
respondents is that merely because some protection in matters of departmental
enquiries was available to Darshan Ram and to other equally placed employees
with him at par with incumbents of civil posts, they were not holding civil
posts and thus, cannot be denied applicability of the Gratuity Act to them
since it is a beneficial social security legislation for the employees.
12.
Hearing has been provided to the
learned counsel for the parties while going through the paper books.
13.
To adjudicate the controversy between
the parties, definition of an employee as provided in Section 2(e) of the
Gratuity Act is reproduced as below:
“2. Definitions.
(a) x
x x
(b) x
x x
(c) x x
x
(d) x x
x
(e) “employee” means any person (other than an
apprentice) employed on wages, in any establishment, factory, mine, oilfield,
plantation, port, railway company or shop, to do any skilled, semi-skilled, or
unskilled, manual, supervisory, technical or clerical work, whether the terms
of such employment are express or implied, and whether or not such person is
employed in a managerial or administrative capacity, but does not include any
such person who holds a post under the Central Government of a State Government
and is governed by any other Act or by any rules providing for payment of
gratuity.”
14.
It is a conceded fact that Darshan Ram
(now deceased and represented by his legal representatives) at the time of his
superannuation was governed by the Rules of 2001 which Rules were replaced by
the Rules of 1964. As per Rule 3(c) of the Rules of 2001, meaning of Gramin Dak
Sevak has been given, as under:
3.
Definitions.
(a)
x x
x
(b)
x x
x
(c)
“Gramin Dak Sevak” means –
(i)
a Gramin Dak Sevak Sub-Postmaster;
(ii) a Gramin Dak
Sevak Branch Postmaster;
(iii) a Gramin Dak
Sevak Mail Deliverer;
(iv) a Gramin Dak
Sevak Mail Carrier;
(v) a Gramin Dak
Sevak Mail Packer;
(vi) a Gramin Dak
Sevak Mail Messenger;
(vii) a Gramin Dak
Sevak Mailman;
(viii) a Gramin Dak
Sevak Stamp Vendor.
15.
Similarly, Sevak as per Rule
3(i) of the Rules of 2001 means as under: 3. Definitions. (i) “Sevak” means a
person working as a Gramin Dak Sevak.
16.
Note II appended to Rule 3 of the Rules
of 2001 is of great significance. In particular clauses (v) and (vi) of the
Note II clinch the issue. For ready reference, these clauses are reproduced
hereunder:
Note
II (i) x x x
(ii)
x x
x
(iii)
x x
x
(iv)
x x
x
(v)
A Sevak shall be outside the Civil
Service of the Union;
(vi)
A Sevak shall not claim to be at par
with the servant of the Government.
(vii)
x x
x
(viii)
x x
x
17.
Clause (v) of Note II appended to Rule
3 of the Rules of 2001 (supra) specifically postulates that such Sevak is not a
member of Civil Service of the Union and thus, clearly does not become a civil
servant.
18.
Clause (vi) of Note II appended to Rule
3 of the Rules of 2001 (supra) makes the position even further clear as the Sevak
is debarred from seeking parity with the holders of civil posts of the
Government.
19.
When it is established from the very
Rules applicable to employee Darshan Ram that he was neither holder of a civil
post nor even could claim parity in any matter with the servants of the
Government, he was thus very well covered under the definition of an employee
under the Gratuity Act and thus, was entitled to payment of gratuity under the
Gratuity Act, notwithstanding payment of ex-gratia gratuity and severance allowance
made to him earlier under the Rules applicable to him. By no means, payment of
ex-gratia gratuity or severance allowance is comparable to the payment of
gratuity under the Gratuity Act or would debar him from claiming gratuity under
the Gratuity Act.
20.
In the impugned judgment, learned
Single Judge has taken note of a Division Bench judgment of this Court in case Senior
Superintendent of Post Offices v. Smt. Sham Dulari & others (CWP No.7576 of
2006) decided on 18.5.2006 whereby payment of gratuity under the
Gratuity Act was allowed to similarly situated employees as are the private
respondents in the appeals in hand. Decision of the Division Bench judgment of
this Court was unsuccessfully challenged by the appellant-employer before the
Hon’ble Supreme Court of India though there, the question of law was left open.
21.
Counsel for the appellant citing Union
of India and others v. Kameshwar Parsad (ibid) has urged that the
respondents were holding posts under the Central Government and thus, were not
entitled to the benefits under the Gratuity Act. In this judgment, Hon’ble
Supreme Court of India had considered the aspect of applicability of status of
such employees viz. a viz. departmental proceedings only and had held that EDA
employees were entitled to protection of Article 311 of the Constitution of
India. If the private respondents have been held entitled to the protective
umbrella of Article 311 of the Constitution of India in matters of departmental
action against them, as is available to civil servants, ipso facto, it would
not mean that they are holding civil posts and thus, are disentitled for the
benefit of payment of gratuity under the Gratuity Act. The authority Union
of India and others v. Kameshwar Parsad (supra) was also considered in
the Division Bench judgment of this Court which has been discussed earlier.
22.
Viewed from another angle, as per
scheme of the Gratuity Act, this statute is not applicable to cases where any
other rule or statute is more beneficial than the Gratuity Act. By now, it is
evident that the rules applicable to the private respondents were not more
beneficial than the Gratuity Act, as even after payment of ex-gratia gratuity
to them huge amount is payable to them under the Gratuity Act. In E.I.D.
Parry (I) Ltd. v. G. Omkar Murthy 2001 (4) SCC 68 (Supreme Court), it
was further held that more beneficial enactment is to be made applicable
interalia in matters of payment of gratuity. In Municipal Corporation of Delhi
v. Dharam Prakash Sharma 1998 (7) SCC 221 (Supreme Court), it was
further held that employees of the Municipal Corporation are entitled to
payment of gratuity notwithstanding provision of payment of retrial benefits to
them under the CCS (Pension) Rules, 1972 wherein there was provision for
payment of pension as well as gratuity to the employees of Municipal
Corporation, Delhi.
23.
From the totality of facts and
circumstances, nothing militating against the impugned judgment of learned
Single Judge as also orders of the Controlling Authority as well as the
Appellate Authority could be mustered by the appellant. The five appeals being
without any merit are, consequently, dismissed.
(Dr. Bharat
Bhushan Parsoon)
Judge
(Rajive Bhalla)
Judge
February 28, 2014
'Yag
Dutt'
1.
Whether Reporters of local papers may be allowed to see the judgment? Yes
2.
Whether to be referred to the Reporters or not? Yes
3.
Whether the judgment should be reported in the Digest? Yes
