Delhi High Court
Municipal Corporation Of Delhi vs Rati Ram on 2 September, 2008
Author: Ajit Prakash Shah
IN THE HIGH COURT OF DELHI AT NEW DELHI
LPA 496/2008
Date of decision: September 2, 2008
MUNICIPAL CORPORATION OF DELHI ..... Appellant
Through Mr. H.S. Phoolka, Senior Advocate
with Ms. Saroj Bidawat, Advocate
versus
RATI RAM ..... Respondent
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
CM APPL No. 12348/2008 (delay) in LPA No. 496/2008
Having heard learned counsel for the appellant and for the reasons
stated in the application, the delay in filing the appeal is condoned.
The application is disposed of.
LPA No. 496/2008 & CM APPL No. 12347/2008 (stay)
1. This appeal is directed against the judgment dated 29th February
2008 passed by the learned Single Judge in WP(C) No. 8800 of 2007.
2. The short question is whether an MCD employee who retired
prior to 22nd July 2005 is entitled to gratuity under the Payment of
Gratuity Act 1972 ('Act'), in addition to the pension and gratuity
under the CCS (Pension) Rules 1972 (CCS Rules) which was made
applicable to the MCD employees.
3. The brief facts are that the respondent was appointed in the
MCD on 9th July 1963 and he retired on 31st January 2002 after
rendering about 39 years' service. Although the retiral benefits were
received by the respondent, no payment was received under the Act.
He filed an application before the Controlling Authority ('CA') under
the Act claiming the additional amount of gratuity that was payable in
terms of the Act. By an order dated 11 th October 2006 the CA
decided the claim in favour of the respondent and held that the
respondent should be paid difference of the gratuity in the sum of
Rs.33,348/- together with simple interest at 10% per annum from the
date it became payable that is 31st January 2002.
4. Aggrieved by the said order, the MCD preferred an appeal
before the Appellate Authority which dismissing the appeal by an
order dated 30th July 2007. Thereafter, the MCD filed the
aforementioned writ petition in this Court.
5. The learned Single Judge has, after considering the judgment of
the Supreme Court in Municipal Corporation of Delhi v. Dharam
Prakash Sharma (1998) 7 SCC 221, affirmed the order of the CA as
well as the Appellate Authority.
6. It is contended by Mr. H.S. Phoolka, Senior counsel appearing
for the MCD that the notification issued by the Central Government
on 22nd July 2005 exempting the MCD from the applicability of the
Act was in force on the date the CA considered the application of the
respondent. He accordingly submits that the application of the
respondent ought not to have been entertained by the CA.
7. In our view this submission is misconceived. In Dharam
Prakash Sharma the very question that arises in this appeal was
involved. The question was whether an employee of the MCD would
be entitled to payment of gratuity under the Act when the MCD itself
has adopted the CCS (Pension) Rules, 1972 which contains provisions
both for payment of pension as well as gratuity. The contention of the
MCD that an employee cannot seek to recover gratuity both under the
CCS (Pension) Rules, 1972 as well as the Act was negatived by
holding that "the Act was a special provision for payment of gratuity"
and "unless there is any provision therein which excludes its
applicability to an employee who is otherwise governed by the
provisions of the Pension Rules, it is not possible for us to hold that
the respondent is not entitled to the gratuity under the Payment of
Gratuity Act." It was categorically held that "the MCD employee,
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 disentitle him to get the payment
of gratuity under the Payment of Gratuity Act."
8. Earlier a Division Bench of this Court had, in Municipal
Corporation of Delhi v. Padma Devi 1986 (52) FLR 372, held as
under:
"Even if Municipal Corporation of Delhi has
certain scheme it is no bar to the
applicability of the Act to the employees of
the petitioner corporation. It is only
common which can be said that an employee
cannot have benefit of the
regulation/pension framed by the
corporation but if he has availed of the
benefit under the Payment of Gratuity Act,
to that extent benefit will be denied to him
under the regulations/pension scheme
framed by the corporation. If scheme
framed by the corporation gives higher
benefit to the extent the employee obtains
benefit under the Payment of Gratuity Act,
to that event the those benefits will be
adjusted while claiming benefits under the
scheme of regulation/pension framed by the
corporation. The employee cannot have
complete benefit under the both the Payment
of Gratuity Act as well as under the Scheme
of regulations/ pensions. To the extent the
benefit has been granted to him under the
Payment of Gratuity Act, only to that extent
the benefit will be adjusted while enforcing
the scheme of regulations/pension framed by
the corporation. Similarly, if under a scheme
framed by the corporation the befit is less
than which is available in the Payment of
Gratuity Act, the employee will be entitled
claim difference under the Payment of
Gratuity Act."
In view of the categorical statement of the law by the Supreme Court
it is clear that the exemption granted to the MCD from the
applicability of the Act by the Notification dated 22 nd July 2005 was
prospective and would not affect the right of a person who retired
prior thereto.
9. It was next contended that the interest @ 10% per annum
should have been directed to be paid only from the date of the
notification dated 22nd July 2005. We are unable to accept this
submission as well. It was incumbent on the MCD, after the judgment
in 1978 of the Supreme Court in Dharam Prakash to have itself made
the payment of gratuity under the Act to the respondent on his
retirement. It was not necessary for the respondent to make an
application for the purpose. The MCD being statutorily bound to do so
on its own cannot be heard to say that it is not responsible for the
delay in making the payment. Consequently the direction to the MCD
to pay interest @ 10% per annum from the date of the retirement of
employee till the date of payment under the Act cannot be faulted.
10. Accordingly, we find no merit in this appeal and it is dismissed
as such. The pending application also stands dismissed.
CHIEF JUSTICE
S.MURALIDHAR, J
SEPTEMBER 02, 2008
rk
