I P Mission Girls High School ... vs State Of Gujarat
2022 Latest Caselaw 9773 Guj

      C/SCA/1027/2021                               JUDGMENT DATED: 02/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1027 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                     Sd/-
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                             NO

2      To be referred to the Reporter or not ?                          YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                 NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution               NO
       of India or any order made thereunder ?

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      I P MISSION GIRLS HIGH SCHOOL THROUGH CHAIRMAN ANISH
                       ARTHURSHANT CHRISTIAN
                                Versus
                          STATE OF GUJARAT
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Appearance:
MANAN K PANERI(7959) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 2
MR SAMIR B GOHIL(5718) for the Respondent(s) No. 2.1,2.2,2.3,2.4
NOTICE SERVED for the Respondent(s) No. 1,3,4
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 02/12/2022
                      ORAL JUDGMENT

1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.

2. With the consent of the learned advocates appearing for the respective parties, the matter is finally heard and decided.

3. In the present writ petition, the petitioner is assailed the judgment and order dated 17.03.2020 passed by the Appellate Authority, Rajkot

C/SCA/1027/2021 JUDGMENT DATED: 02/12/2022

under the Payment of Gratuity Act, 1972 (for short "the Act") in Gratuity Appeal No.30 of 1990 confirming the judgment and order dated 26.03.2019 passed by the Controlling Officer at Rajkot in Gratuity Case No.41 of 2018.

4. The short issue in the present writ petition is whether the respondent can be paid the gratuity for the period from 1995-2007, for which he was out of service. It is not in dispute that the respondent was terminated from service in the year 1997, which was subject matter of challenge in the Reference (LCR) No.108 of 2003 before the Labour Court, Rajkot and by the award dated 07.10.2008, the Labour Court directed the present petitioner to reinstate him with continuity of service with 50% back wages. It is the case of the petitioner that for the aforesaid period, the respondent is not entitled to gratuity amount as he has not worked.

5. Learned advocate Mr.Paneri has submitted that the Controlling Authority has fallen in error since the respondent no.2 had in fact rendered two service one from 11.04.1995 to 26.01.2007 and again he was appointed from 27.01.2007 to 31.10.2007. It is submitted that both the authorities below has failed to appreciate the provisions of Section 4(2) of the Act while calculating the amount since the respondent no.2 was not in actual service from 12.02.1996 to 26.01.2007. It is further submitted that after the period from 2007 onwards, the gratuity amount is calculated and paid by the State Government after the retirement of the respondent no.2. Thus, it is submitted that the impugned order may be set aside.

C/SCA/1027/2021 JUDGMENT DATED: 02/12/2022

6. Per contra, learned advocate Mr.Gohil appearing for the respondent no.2 has submitted that the impugned orders do not require any interference since the same are appropriately passed. It is submitted that once the petitioner has been ordered to be reinstated by the award of the Labour Court with continuity of service, the respondent no.2 will be entitled to all the benefits including the gratuity as per the provisions of Section 4 of the Act.

7. The aforenoted facts are not in dispute. The respondent no.2, who was working under the petitioner, was terminated from service in the year 1995 i.e. on 11.04.1995, which was subject matter of challenge before the Labour Court in Reference (LCR) No.108 of 2003. By the award dated 07.10.2008, the Labour Court directed the petitioner to reinstate the respondent no.2 with continuity of service from 02.03.1997 with 50% back wages. Accordingly, the respondent no.2 was reinstated by the petitioner on 26.01.2007.

8. Since the respondent no.2, after the retirement, was not paid the gratuity amount for the period from 11.04.1995 to 26.01.2007, he filed the gratuity application. It is not in dispute that the respondent no.2 was appointed on 11.04.1995 and by the award dated 20.03.1997 the entire service from the date of termination has been ordered as continuous by the Labour Court.

9. By the order dated 26.03.2019, the Controlling Authority allowed the application filed by the respondent no.2 being Gratuity Case No.41 of 2018 and directed the petitioner to pay an amount of Rs.1,20,240/- for the period from 11.04.1995 to 26.01.2007. The same was carried in appeal by the petitioner, which was also not entertained.

C/SCA/1027/2021 JUDGMENT DATED: 02/12/2022

10. It is also not in dispute that the Controlling Authority has appropriately adopted the formula as provided under Section 4(2) of the Act. The only issue, which falls for consideration is whether the respondent no.2 would be entitled to gratuity amount for the intervening period, which has been ordered to be continued.

11. At this stage, it would be apposite to refer to the provisions of Section 4(2) of the Act. The same reads as under:-

"4 Payment of gratuity. --

(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year], the employer shall pay the gratuity at the rate of seven days' wages for each season. [ Explanation. --In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.]"

12. A bare perusal of the aforesaid provisions of Sub-Section (2) of Section 4 of the Act, reveals that the same does not in any manner mandate that the period rendered by an employee or workman prior to the termination is required to be ignored on being reinstated from service with continuity of service. Once the award passed by the Labour Court directing the continuity of service has become final, the entire period from the date of appointment till the reinstatement is required to be calculated as per the provisions of Sub-Section (2) of Section 4 of the

C/SCA/1027/2021 JUDGMENT DATED: 02/12/2022

Act. Subsequently, also the service of the respondent has been regularized. As per the judgment of the Division Bench dated 28.12.2017 in LPA No.156 of 2017, even the service rendered by a daily wager prior to his regularization is required to be counted for gratuity as per the payment of the Gratuity Act, and after his regularization, he is to be paid gratuity as per the Gujarat Civil Services (Pension Rules), 2002.

13. The petitioner actually retired from service on 01.10.2017. At that time, she was having the basic pay of Rs.16,700+Dearness Allowances which comes to Rs.17,368/-. By adopting the calculation as mentioned herein, the total years of service of the respondent no.2 would be 12 years. Thus, the Controlling Authority while calculating the service from 11.04.1995 to 26.01.2007 has arrived at an amount of Rs.1,20,240/-.

14. Thus, this Court does not find any illegality or infirmity in such calculation. The Controlling Authority has appropriately calculated the amount of the respondent no.2 and hence, the writ petition is not required to be entertained and the same is dismissed. Rule is discharged.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/91