Bombay High Court
Zilla Parishad Wardha, Thr. Its Chief ... vs Kamlakar S/O. Shamrao Washimakar ... on 26 June, 2025
2025:BHC-NAG:5961
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.8592/2022
1. Zilla Parishad, Wardha,
through its Chief Executive Officer.
2. Executive Engineer, Works Division,
Zilla Parishad, Wardha.
3. Zilla Parishad Works Sub-Division,
Hinganghat, through its Sub-Divisional
Engineer, Zilla Parishad Works
Sub-Division Hinganghat,
Tq. Hinganghat, Distt. Wardha. ... Petitioners
(Original Non-applicants)
- Versus -
Kamlakar S/o Shamrao Washimkar
since dead through his legal heirs.
1. Smt. Sunita Kamlakar Washimkar,
aged about 64 Yrs., Occu. Household,
2. Meena Kamlakar Washimkar,
aged about 34 Yrs., Occu. Private Job,
3. Nikhil Kamlakar Washimkar,
aged about 32 Yrs., Occu. Business,
All respondent Nos.1 to 3 are
R/o Vitthal Mandir Ward,
Near Three Temple Hinganghat,
Tah. Hinganghat, Distt. Wardha. ... Respondents
(Original Applicants)
-----------------
Mr. N.M. Kolhe, Advocate for the petitioners.
Mr. A.J. Pathak, Advocate for the respondents.
----------------
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CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE JUDGMENT: 11.6.2025.
DATE OF PRONOUNCING THE JUDGMENT: 26.6.2025.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
2. This petition challenges the judgment and order
passed by the Appellate Authority under the Payment of Gratuity
Act, Industrial Court, Maharashtra, Nagpur Bench, Nagpur in
Appeal (PGA) No.17/2019, whereby the learned Authority has
dismissed the appeal filed by the petitioners challenging the
judgment and order dated 24.1.2019 passed by the Controlling
Authority under the Payment of Gratuity Act for Wardha Region
in Application (PGA) No.25/2018.
3. The respondent was appointed as a Samipal on
8.1.1965 and stood superannuated on 30.4.2004. He was
governed by the provisions of the Maharashtra Civil Services
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Rules. According to the petitioners, last drawn salary of the
respondent was Rs.6,900/- and accordingly the gratuity amount
was paid as per Rule 111 of the Maharashtra Services (Pension)
Rules, 1982.
4. By office order dated 14.7.2004 the respondent was
paid Rs.99,000/- towards the gratuity amount and the petitioners
have paid total Rs.1,13,850/- towards gratuity amount to the
respondent.
5. After 14 years the respondent issued notice to the
office of the petitioners on 31.3.2018 demanding difference of
gratuity amount of Rs.1,51,846/- along with interest as per the
provisions of the Payment of Gratuity Act. It is submitted by the
respondent that he has rendered total service of more than 34
years and as per the provisions of the Payment of Gratuity Act his
last salary for calculating the amount of gratuity is Rs.6,900/-.
Therefore, the respondent claimed that he is entitled to receive
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total gratuity amount of Rs.2,09,786/- as per the provisions of the
Payment of Gratuity Act. However, the petitioners have only
paid Rs.57,940/- towards gratuity amount to the respondent.
Therefore, he is entitled to receive difference amount of gratuity
of Rs.1,51,846/- from the petitioners along with interest @ 18 per
annum from its due date till actual realization.
6. The petitioners have stated that the service condition
of respondent is governed by the Maharashtra Civil Services
Rules. The calculation of gratuity is done according to the Rules
applicable to the respondent and no fault can be drawn against
them. The calculation of gratuity amount is proper. There is
unreasonable delay in filing the application. The respondent
does not fit in the definition under the Payment of Gratuity Act,
1972. On 24.1.2019 the Authority and the Labour Court has
passed the judgment and order and allowed the application filed
by the respondent under the Payment of Gratuity Act and
directed the petitioners to pay difference of gratuity amount of
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Rs.1,51,846/- to the respondent with simple interest at the rate of
10% per annum from the date of superannuation i.e. from
24.1.2019 till the date of realization of the amount. The
petitioners had challenged the above order before the Appellate
Authority which was dismissed. Being aggrieved by the said
orders, the petitioners have filed this petition.
7. The learned Advocate for the petitioners has stated
that rule 6 of the Maharashtra Zilla Parishads District Services
Rules, 1968 clearly mentions the applicability of the Maharashtra
Civil Services Rules (Pension) Rules, 1982 wherein definition of
pay is clearly mentioned at rule 9(36)(i) which only states about
pay and it does not include dearness allowance and, therefore,
gratuity of respondent was calculated as per the said statutory
Rules and, therefore, no fault can be found in respect of said
payment of amount of gratuity paid to the respondent. The
respondent has admitted applicability of the Maharashtra Civil
Services (Pension) Rules, 1982 and as per said definition the
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respondent is getting pension and when the definition under the
Maharashtra Civil Services Rules specifically includes the gratuity
under the provisions of the Payment of Gratuity Act, 1972, same
is controlled by the law laid down by the High Court of Gujarat
in case of Junagad District Panchayat V/s. Surendrasinh Dayabhai
Rathod and others reported in MANU/GJ/8535/2006 and,
therefore, prayed to set aside the judgment and order passed by
the Appellate Authority.
8. The learned Advocate for the respondent has
submitted that the Payment of Gratuity Act is applicable to Zilla
Parishads. The employees are entitled for gratuity under the
beneficial legislation to receive the payment. The issue is
discussed and already been decided in various judgments. The
respondent has relied on the observations of this Court in
paragraphs 11 and 12 in Writ Petition No.1307/2021 (Chief
Officer, Municipal Council, Chikhli V/s. Sheikh Javed Wahed)
which read as under:-
"11. A perusal of the MCSR (Pension) Rules, 1982,
would show that Rule 110 pertains to calculation of
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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 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."
9. It appears from the impugned judgment and order
that the application was opposed mainly on the ground of delay
and quantum of amount as was claimed by the respondent
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towards gratuity. The petitioners did not dispute the entitlement
of the respondent to receive the amount of gratuity and certain
amount was specified to be payable to the respondent.
Sub-section (2) of Section 7 of the Act lays down that irrespective
of whether an application, as provided in sub-section (1) has been
made or not, the employer shall as soon as gratuity becomes
payable, determine the amount of gratuity and give a notice in
writing to the person to whom gratuity is payable and to the
Controlling Authority, specifying the amount of gratuity so
determined. Sub-section (3) provides that the employer shall
arrange to pay the amount of gratuity within 30 days from the
date on which it becomes payable to the person to whom gratuity
is payable. Sub-section (4)(a) then provides that if there is any
dispute as to the amount of gratuity payable to an employee
under the Act or as to the admissibility of any claim or in relation
to an employee for payment of gratuity or as the person entitled
to receive the gratuity, the employer must deposit with the
Controlling Authority such amount as he admits to be payable.
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Sub-section (4)(b) provides that upon there being a dispute with
regard to any matter, specified in clause (4)(a), the employer or
the employee or any other person raising the dispute, may make
an application to the Controlling Authority for deciding the
dispute. The Controlling Authority has thereupon been
empowered to adjudicate upon the dispute. Section 7 of the
Payment of Gratuity Act provides that it is the duty of the
employer to calculate the amount of gratuity legally due to the
employee even if no application is preferred. Learned Appellate
Court has rightly observed that in case of Dnyanoba Vishnu
Sawant and others V/s. Sitaram Mills, Unit of National Textile
Corporation, North Maharashtra and another reported in 2017 II
CLR 414 it is observed that if there is recurring cause of action in
view of failure of the employer to make calculation under Section
7 of the Payment of Gratuity Act, the findings are to be recorded
as per the evidence on record and should be in consonance with
the provisions of the Act.
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10. In view of above observations, the orders passed by
both the Authorities below need no interference at the hands of
this Court. Writ Petition is accordingly dismissed with no orders
as to costs. Rule discharged.
(MRS.VRUSHALI V. JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 26/06/2025 15:28:57
