Bombay High Court
Chief Officer, Municipal ... vs Bhupendra Eknath Jadhav on 12 September, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1307 OF 2021
(Chief Officer, Municipal Council Chikhli Vs. Sheikh Javed Sheikh Wahad)
WITH
WRIT PETITION NO. 1308 OF 2021
(Chief Officer, Municipal Council Chikhli Vs. Bhupendra Eknath Jadhav)
WITH
WRIT PETITION NO. 1310 OF 2021
(Chief Officer, Municipal Council Chikhli Vs. Mohd. Sadik Mohd. Rafik)
WITH
WRIT PETITION NO. 1311 OF 2021
(Chief Officer, Municipal Council Chikhli Vs. Bhagwan Nararyan Bharad)
WITH
WRIT PETITION NO. 1312 OF 2021
(Chief Officer, Municipal Council Chikhli Vs. Kundlik Shenfad Shelke)
WITH
WRIT PETITION NO. 1313 OF 2021
(Chief Officer, Municipal Council Chikhli Vs. Vijay Chhogalal Kachwal)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Pramod N. Varma, Advocate for Petitioner in all petitions
Mr. U.J. Deshpande, Advocate for Respondent in all petitions
CORAM : MANISH PITALE, J.
DATE : 12th SEPTEMBER, 2022
In these petitions, the Municipal Council - Chikhli,
District Buldhana, has challenged orders passed by the
Controlling Authority and the Appellate Authority under the
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provisions of the Payment of Gratuity Act, 1972 (hereinafter
referred to as "the Act of 1972"). The Appellate Authority in
all these cases has confirmed the orders passed by the
Controlling Authority, except stating that the interest on the
amount payable to the respondent - employees is granted
from the date of the application.
2. In Writ Petition No. 1310/2021, the petitioner -
Municipal Council has moved an application for bringing on
record legal representatives of the respondent - employee. In
the interest of justice, the said application, bearing Civil
Application (CAW) No. 1372/2022, is allowed. The
amendment in the cause title be carried out forthwith.
3. Mr. U.J. Deshpande, learned counsel waives notice on
behalf of legal representatives of the said deceased
respondent - employee in WP No. 1310/2021.
4. The Writ petitions were taken up for final disposal.
5. Mr. Pramod N. Varma, learned counsel appearing for
the petitioner - Municipal Council in all these petitions
submitted that the authorities below ought not to have
granted gratuity to the respondent - employees in terms of
the provisions of the aforesaid Act of 1972 and that the
gratuity ought to be held as payable to the respondent -
employees under the Maharashtra Civil Services (Pension)
Rules, 1982 (hereinafter referred to as "MCSR (Pension)
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Rules, 1982") which are applicable to the employees of the
petitioner - Municipal Council.
6. On the other hand, Mr. U.J. Deshpande, learned
counsel appearing for the respondent - employees submitted
that the issue arising in the present petitions is covered in
terms of the provisions of the Act of 1972 and the law laid by
the Hon'ble Supreme Court in that regard in the cases of
Municipal Corporation of Delhi Vs. Dharam Prakash
Sharma and another reported in (1998) 7 SCC 221 and
Allahabad Bank and another Vs. All India Allahabad Bank
Retired EMPS. ASSN. reported in 2010 (124) FLR 192 and
judgment dated 02/04/2019 in Civil Appeal No. 2628 of
2017 in the case of Nagar Ayukt Nagar Nigam, Kanpur Vs.
Sri Mujib Ullah Khan and another.
7. It is submitted that admittedly the payment of gratuity
under the Act of 1972, is more beneficial to the respondent -
employees, as compared to the gratuity payable under the
MCSR (Pension) Rules, 1982 and, therefore, by operation of
Section 4(5) of the Act of 1972, the orders passed by the
authorities cannot be found fault with. It is also submitted
that admittedly, the Municipal Council has not sought
exemption under Section 5 of the Act of 1972, from the
appropriate Government and, therefore, the Act of 1972, is
clearly applicable, being more beneficial for the employees.
8. At this stage, Mr. Varma, learned counsel appearing
for the petitioner - Municipal Council submitted that,
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according to him, a proper interpretation of the relevant
provisions of the MCSR (Pension) Rules, 1982, would show
that payment of pension and payment of gratuity run hand
in hand for the respondent - employees and, therefore, if the
two benefits are taken together they are clearly more
beneficial. On this basis, applying Section 4(5) of the said
Act of 1972, it is contended that the impugned orders
deserve interference.
9. Having considered the rival contentions, it needs to be
appreciated that certain facts are admitted. It is an admitted
position that the quantum of gratuity payable under Rule 111
of the MCSR (Pension) Rules, 1982, is less beneficial as
compared to the gratuity payable to the respondent -
employees under the provisions of the Act of 1972.
Therefore, by applying Section 4(5) of the Act of 1972, the
petitioner - Municipal Council cannot claim that the
scheme of gratuity under Rule 111 of the MCSR (Pension)
Rules, 1982, would override the payment of gratuity to the
respondent - employees of the petitioner - Council under
the Act of 1972. It is also an admitted position that the
petitioner - Council has not been granted any exemption
from the applicability of the provisions of the Act of 1972,
under Section 5 of the said Act by the appropriate
Government.
10. In this light, when the rival submissions are
appreciated, it appears that according to the learned counsel
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for the petitioner - Municipal Council, payment of gratuity
and payment of pension under the MCSR (Pension) Rules,
1982, is a package deal and if the respondent - employees
claim pension, they cannot claim gratuity under the Act of
1972 and they must necessarily be held entitled only to
gratuity under the MCSR Pension Rules, 1982. The said
contention is stated only to be rejected.
11. A perusal of the MCSR (Pension) Rules, 1982, would
show that Rule 110 pertains to calculation of the amount of
pension payable to an employee of the Municipal Council, as
the said Rules are admittedly applicable and Rule 111 of the
MCSR (Pension) Rules, 1982, pertains to the scheme of
gratuity payable to the employees. These are two separate
and distinct Rules, which pertain to distinct and separate
benefits of pension and gratuity, as contemplated under the
MCSR (Pension) Rules, 1982. The mixing of the same and
claiming the same to be a package deal on behalf of the
Council is nothing but a desperate attempt to wriggle out the
Act of 1972 and the position of law laid down by the
Hon'ble Supreme Court in the aforesaid judgments in that
regard.
12, A perusal of the aforesaid judgments would show that
the position of law is very clear. It is absolutely clear that
unless an establishment is exempted by the appropriate
Government under Section 5 of the Act of 1972, the
provisions of the said Act would be applicable. It is also clear
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that only when the payment of gratuity under the scheme
formulated by the establishment is found to be more
beneficial for the employee as compared to the amount of
gratuity payment under the Act of 1972, the establishment
could claim that the provisions of the Act of 1972, would not
be applicable. This clearly indicates the beneficial nature of
the Act of 1972 and hence, it has been interpreted
accordingly by the Hon'ble Supreme Court in the aforesaid
judgments.
13. This Court is of the opinion that the Municipal
Council cannot claim that the respondent - employees are
faced with an either or situation, where they would have to
choose gratuity with pension under MCSR (Pension) Rules,
1982, on the one hand or only gratuity without pension
under the Act of 1972. Such an interpretation would be in
the teeth of the provisions of the Act of 1972, the MCSR
(Pension) Rules, 1982, as also the law clarified by the
Hon'ble Supreme Court in the above referred cases.
14. In view of the above, it is found that the only
contention raised on behalf of the petitioner - Municipal
Council in all these petitions is unsustainable and
accordingly, there is no merit in the present writ petitions.
15. In view of the above, the writ petitions are dismissed.
Digitally signed by:MILIND
P DESHPANDE
Signing Date:14.09.2022
10:15
JUDGE
MP Deshpande
