Madras High Court

Capt.Rc Rajan (Ex.Comdt 0080-E) vs The Director General Of Coast ... on 10 January, 2022

                                                                                     W.P.No.14440 of 2009

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         Dated 10.01.2022

                                                            CORAM:

                              THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

                                                  W.P.No.14440 of 2009 and
                                                  M.P.Nos.1 and 2 of 2009

                       Capt.RC Rajan (Ex.Comdt 0080-E)                               ... Petitioner

                                                               Vs.

                       The Director General of Coast Guard,
                       Tatrakshak Mukhalaya,
                       Coast Guard Head Quarters,
                       national Stadium Complex,
                       New Delhi 110 001.                                           ... Respondent

                                  Writ petition filed under Section 226 of the Constitution of India
                       to issue a Writ of Certiorarified Mandamus, calling for the records
                       relating to the order of the respondent in his proceedings in
                       OF/0303/0080-E, dated 11.05.2009 and quash the same and
                       consequently direct the respondent to release and disburse the gratuity
                       payable to the petitioner for his 16 long years of service in Coast Guard.

                                        For petitioner      : Mr.Balakrishnan for
                                                              for Mr.Ravi

                                        For Respondent : Mr.T.L.Thirumalaisamy,
                                                         Central Government Standing Counsel

                       1/11
https://www.mhc.tn.gov.in/judis
                                                                                      W.P.No.14440 of 2009

                                                         ORDER

The Writ Petition has been filed to quash the proceedings passed

in OF/0303/0080-E, dated 11.05.2009, rejecting the request for payment

of gratuity and for a consequential direction to the respondent to release

and disburse the gratuity amount payable to the petitioner for his 16

years of service as Coast Guard.

2. It is the case of the petitioner that originally the petitioner had

joined service as Coast Guard in the year 1983 and served in the

capacity of a Staff Pilot, Squadron Commander, Commanding Officer,

Instrument rating examiner and a Pilot instructor. As such he had

served 16 long years without any break and the petitioner was awarded

DGCG Commendation, the Tatrakshak Medal for meritorious service,

the Proficiency Award and the Safety Award for accident / incident free

flying during the service in Coast Guard. The petitioner had been put in

very meritorious service without any blemishes in record of service. On

completing his 16 years of service in the post of Coast Guard, owing to

pressing family compulsions, the petitioner requested respondent, to

accept his resignation. Accepting the said letter of the resignation, the

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respondent had relieved the petitioner w.e.f. 1st July 1999 on

compassionate grounds. Thereafter, the petitioner had applied for the

disbursement of gratuity on 09.07.2000. But to the shock and surprise,

the respondent by letter dated 26.07.2000, has informed that as per the

Rules the petitioner did not complete 20 years of qualifying service in

the department and therefore, as per Rule 26(1) of CCS (Pension)

Rules, 1972, resignation from a service as post entails forfeiture of past

service. In view of the above, the petitioner is not entitled for payment

of any gratuity. Challenging the aforesaid rejection order passed by the

respondent, the petitioner has filed the present Writ Petition before this

Court.

3. The learned counsel for the petitioner submitted that the

respondent has rejected the request for gratuity in the light of CCS

(Pension) Rules 1972 and the said rule will not be applicable to the

petitioner. The petitioner had not sought for any amount under the

Pension Rule. As per Section 4(1) of the Payment of Gratuity Act, 1972

the gratuity shall be payable to an employee in the termination of his

employment after rendering continuous service for not less than five

https://www.mhc.tn.gov.in/judis W.P.No.14440 of 2009

years. Hence, the petitioner is entitled for gratuity amount as he has

completed more than 5 years of continuous service. He further

submitted that the gratuity shall be payable even to the

employee/delinquent resigned from service provided he shall be put in

five years of continuous service. In this case, the petitioner after

serving 16 long years, on his own request, he was relieved from service.

Hence, the order impugned in this petition is liable to be set aside.

4. The respondent filed counter affidavit stating that the

petitioner served as an officer in the Coast Guard, which is a Armed

Force of the Union. As far as the pension and gratuity of the Coast

Guard officers are concerned, these are covered by CCS (Pension)

Rules, 1972 and hence the payment of Gratuity Act 1972 is not

applicable in this case in view of Section 1 (3) of the said Act.

5. The learned Standing counsel submitted that the petitioner had

served as an officer, and that he cannot be said to be an employee

within the meaning of Section 2 (e) of the Payment of Gratuity Act,

1972 and thus he is not entitled to any benefits under the said Act as he

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has not completed 20 years of service. Therefore, the respondent had

rightly rejected the claim of the petitioner.

6. I have heard the learned counsel appearing on either side and

perused the materials available on record.

7. Admittedly the petitioner had contributed his gratuity amount

to the respondent Department for his 15 years 10 months and 11 days of

service as Coast Guard. Hence, according to the petitioner, he is

entitled to Gratuity as per Section 4 (1) of the Gratuity Act, 1972. The

said Act is extracted hereunder for better understanding:

“Section 4(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years:

(a) On his superannuation, or

(b) On his retirement or resignation, or

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8. The Respondent department relied on Section 2 (e) of the

Payment of Gratuity Act, 1972 in support of their claim that the

petitioner is not entitled for Gratuity as he is not come under the

meaning of Employee. Section 2 (e) of the said Act is extracted below

for better appreciation:

Section 2(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 or a State Government and is governed by any other Act or by an rules proving for payment of gratuity.”

9. The learned Standing Counsel has also relied on the

Judgements of the Hon'ble Supreme Court made in Civil Appeal

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Nos.6166 of 1999, 2121 of 2000 and 2491 -2492 of 2001, dated

30.03.2001 wherein the Hon'ble Supreme Court observed as follows:

“Retiring person is further given to a government servant who retires or is retired in advance of age of compulsory retirement in accordance with the provisions of Rule 48 after completing 30 years of qualifying service or Rule 48 A of the CCS (Pension) Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations. Rule 48 – A provides for Voluntary retirement after completion of 20 years qualifying service after giving three months notice in writing to the appointing authority and if such notice is accepted he would get retiring pension. Thereafter, Rule 49 provides for method of calculation of amount of pension to such government servant. Relevant parts of the CCS (Pension) Rules for grant of Pension are as under:

35. Superannuation Pension: A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement.”

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10. Yet another decision has also been relied on by the learned

Central Government Standing Counsel in Civil Appeal No.1027 of

2020, dated 30.09.2021 in support of his contention.

11. In the aforesaid decisions cited supra, there is no discussion

or finding with regard to the benefit granted under the Payment of

Gratuity Act and the said decision relates to Payment of Superannuation

Pension benefit. In view of Section 4 (1) of the Gratuity Act which is

extracted supra, on completion of 5 years of service in the department,

the employee are entitled to Gratuity amount.

12. In this connection, it is pertinent to refer the decision of the

Hon'ble Supreme Court reported in 2020 (5) SCC 741 in Rajasthan

State Road Transport Corporation Limited and others Vs. Mohani

Devi and another to consider the request of the petitioner for payment

of gratuity amount. The relevant paragraph is extracted hereunder for

better appreciation:

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“11... As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well.'”

13. On careful reading of the above said judgment, the Writ

Petitioner is entitled for gratuity, if the termination of employment is

after 5 years of continuous service, as per Section 4(1)(b) of the

Payment of Gratuity Act.

14.Considering the facts and circumstances of the case as well as

the decision of the Hon'ble Supreme Court in Rajasthan State Road

Transport Corporation Limitted's case referred supra, this Court is

inclined to set aside the order passed by the respondent department,

dated 11.05.2009 and accordingly the same is quashed. The petitioner

is entitled for gratuity amount as per Section 4 (1) (b) of the Payment of

Gratuity Act. Accordingly this Writ Petition stands allowed. The

Respondent / Department is directed to settle the gratuity amount with