Punjab-Haryana High Court
Senior Superintendent Of Post Offices vs Yash Pal And Others on 20 March, 2024
Neutral Citation No:=2024:PHHC:040155
Neutral Citation No:2024:PHHC: 040155
CWP-10698-2019 and other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-10698-2019
Reserved on:01.03.2024
Pronounced on: 20.03.2024
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Yash Pal and others ....Respondents
2. CWP-10956-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Dev Raj and others ....Respondents
3. CWP-10967-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Sada Ram and others ....Respondents
4. CWP-10970-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Suresh Kumar and others ....Respondents
5. CWP-10973-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Gulshan Kumar and others ....Respondents
6. CWP-10992-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Smt. Amarjit Kaur and others ....Respondents
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CWP-10698-2019 and other connected cases 2
7.
CWP-11026-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Harmesh Chander and others ....Respondents
8. CWP-13053-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Kulwinder Kumar and others ....Respondents
9. CWP-13219-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Smt. Paramjit Kaur and others ....Respondents
10. CWP-14681-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Smt. Surinder Kaur and others ....Respondents
11. CWP-14791-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Naranjan Kumar and others ....Respondents
12. CWP-10767-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Baldev Raj and others ....Respondents
13. CWP-10781-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
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CWP-10698-2019 and other connected cases 3
Smt. Harbinder Kaur and others ....Respondents
14. CWP-11990-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. Jagtar Singh and others ....Respondents
15. CWP-10736-2019
The Senior Superintendent of Post offices .... Petitioner
Versus
Sh. John Peter and others ....Respondents
CORAM:HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. Piyush Khanna, Advocate for the petitioner(s).
None for the respondents.
*****
SANJAY VASHISTH, J.(Oral)
1. By way of this common order passed in CWP-10698-
2019 titled as Senior Superintendent of Post Offices v. Yash Pal
and others, all the aforementioned 15 writ petitions are being
disposed of as a common question of law and facts is involved in all
these writ petitions.
Although, the relevant facts are being extracted from
CWP-10698 of 2019, yet in the facts and circumstances of each and
every case mentioned hereabove, the question to be adjudicated is one
and same, therefore, the same principle of law would be applicable in
all such cases.
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2. All these CWP's are preferred by the Senior
Superintendent of Post Offices, Department of Posts and Telegraphs,
Hoshiarpur Division, District Hoshiarpur (Punjab) as petitioner;
whereby the orders passed by the Controlling authority and thereafter,
by the Appellate Authority ordering to pay amount of gratuity under
the provisions of the Payment of Gratuity Act, 1972 has been
questioned.
3. Present Civil Writ petition has been preferred by the peti-
tioner-The Senior Superintendent of Post Offices, Department of
Posts and Telegraphs, Hoshiarpur Division, Punjab, for issuance of
the writ in the nature of certiorari to quash the order dated
26.12.2017 (Annexure P-2) passed by the Controlling Authority
under the Payment of Gratuity Act (hereinafter referred to as 'The Act
1972') and the order dated 10.09.2018 (Annexure P-4), whereby the
appeal preferred by the petitioner has also been dismissed by the Ap-
pellate Authority.
4. Brief factual matrix of the case are that Respondent No. 1
- Yash Pal was appointed on 20.08.1987 as Gramin Dak Sewak
(BPM) and worked on the said post till 20.03.2011, thus, served con-
tinuously for 24 years. On 20.03.2011, his services were discharged
as he was promoted to Multi tasking Staff on regular basis. Respon-
dent No. 1 filed an application under the The Act 1972 claiming gra-
tuity in lieu of the services rendered by him, however, the said appli-
cation was rejected.
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Being aggrieved, Respondent No. 1 filed an application
under Sections 4 and 7 of the Act 1972 before the Controlling Author-
ity seeking a direction to the petitioner to pay the amount of gratuity
for the services rendered by him alongwith interest.
5. The claim application was admitted by the Controlling
Authority, and a notice was issued to the non-applicant/management
for submission of their defence. After completion of the pleadings,
Learned Controlling Authority framed the following issues:-
1. Whether the Post Office is an establishment under
the Payment of Gratuity Act, 1972?
2. Whether Gramin Dak Sewak is an employee under
the Payment of Gratuity Act, 1972 and whether the
applicant is enttiled for Payment of Gratuity under
the Payment of Gratuity Act, 1972?
3. What amount of Gratuity should be paid to the Ap-
plicant and whether it should be paid with interest
or not?
6. Learned Controlling Authority while deciding the first is-
sue observed that Post office is an establishment within the meaning
of Section 1(3)(b) of the Act 1972 as it is governed by the Indian Post
Office Act, 1898.
While deciding the initial part of the second issue,
Learned Controlling Authority observed as reproduced herein:-
"Therefore, the contention of the Non-applicant regarding
applicability of Gratuity Act is untenable and Hence
rejected and it is held that, Gramin Dak Sewak (GDS) is an
employee under the Payment of Gratuity Act, 1972 and are
entitled for Gratuity under the Payment of Gratuity Act,
1972."
While deciding the latter part of the second issue,
Learned Controlling Authority observed as follows:
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"Now, the question arise when the GDS is continuing in the
employment, still he is eligible for the gratuity as he is
working with the Department of Posts.
The answer to this question is in affirmative in the opinion
of this Authority. The reason being GDS are a class of its
own, they are being issued fresh appointment letters and
everything is done afresh like issuing of fresh appointment
letters, usual formalities like verification of character and
antecedents, age, medical certificate, caste certificates etc.
Further, the service rendered in GDS is not counted for any
further benefits for gratuity or pension or anything.
Severance of employment has taken place, a termination
has taken place and a new appointment has been made
with no past liability to the department. The applicant
deserve to be paid gratuity for the services rendered as
GDS. It has been held time and again by the Higher
Judiciary that gratuity is not the bounty but hard earned
benefit which accrues to an employee and is in the nature
of "property". Furhter, ours is a welfare state and Payment
of Gratuity Act, 1972 is a social welfare legislation and
one should not be deprived of its benefit for the
services rendered."
7. Thus, cumulatively, Learned Controlling Authority held
that the Gramin Dak Sewak falls under the definition of Employee for
the purposes of the Act 1972 and further held that although, workman
is continuing in the Employment, still, he would be entitled to the ben-
efit of Gratuity under the Act 1972.
Lastly, while deciding Issue No. 3, Learned Controlling
Authority computed the amount of the Gratuity payable to Respon-
dent No. 1 as Rs. 96,065/- alongwith simple interest @10% per an-
num as per sub section (3-A) of Section 7 of the Act, 1972, from
20.03.2011 the date of termination i.e. from the date when gratuity be-
came payable.
8. Said order dated 26.12.2017 (Annexure P-2) passed by
the Controlling Authority was challenged by the petitioner herein be-
fore the Appellate Authority under the Act 1972, however, said appeal
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was dismissed vide order dated 10.09.2018 (Annexure P-4) by ob-
serving as follows:-
"The Controlling Authority has issued the directions in his
order dated 26.12.2017 which is in resonance with the
aforesaid directions of the Hon'ble High Court and
Supreme Court. The Appellant has filed an LPA to review
the above order of the Supreme Court. However, although
the LPA is admitted, there is no stay on the proceedings
under the Act.
In view of the aforesaid position, this Appellate Authority,
does not find any merit in the grounds of appeal and
confirms the decision of the Controlling Authority dated
26.12.2017."
Both the said orders passed by the Learned Controlling
Authority as well as the Appellate Authority have been challenged by
the petitioner before this Court.
9. Learned Counsel for the petitioner while addressing argu-
ments relies upon the judgment of Hon'ble the Apex Court titled as
Sr. Superintendent of Post Offices v. Gursewak Singh 2019(2)
S.C.T. 294: Law Finder Doc ID #1398091 and submits that the ques-
tion that whether Gramin Dak Sewak (GDS) falls under the definition
of "Employee" for the purposes of the Act, 1972 is no longer res-inte-
gra. Relevant part of the said judgment is reproduced hereinbelow:-
"9.4. .....A Gramin Dak Sewak is not an 'employee' under
the 1972 Act."
He further submits that once, it is held that Respondent
No. 1 does not fall under the definition of Employee for the purposes
of the the Act 1972, order of grant of gratuity under the said Act by
the Learned Authority itself, is liable to be set aside.
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10. Learned Counsel for the petitioner further submits that in the
case at hand, there is no order of termination of the employee, rather
Respondent No. 1 has been promoted to a regular class and in the ab-
sence of termination; there cannot any stage for grant of any gratuity
to the employee whatsoever. To substantiate his argument, Counsel
for the petitioner relies upon Section 4 of the Act, 1972.
11. Since, there is no appearance of any of the respondents in
all the aforementioned 15 writ petitions, this Court has gone through
the judgment of Hon'ble the Apex Court in Senior Superintendent of
Post offices's case (supra) with the help of the counsel for the peti-
tioners. Some of the facts noticed from the cited judgment are as un-
der:
(a) A civil appeal was filed by the Sr. Superinten-
dent of Post Offices against the workman who was en-
gaged as Gramin Dak Sewak (GDS) and voluntarily
resigned from the part time job after rendering 23
years of service. Workman approached the Controlling
Authority under the Act 1972 for seeking gratuity and
vide order dated 21.09.2015, Learned Controlling Au-
thority directed the Department to pay an amount of
Rs. 1,06,021/- along with 10% interest.
(b) Against the said award, Department filed an ap-
peal under Section 7(7) of the 1972 Act, however, the
said appeal was dismissed.
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(c) The Department further filed a Civil Writ Peti-
tion under Article 226/227 of the Constitution, which
was dismissed by Hon'ble Single Bench of the High
Court. The said decision was further challenged by fil-
ing a Letters Patent Appeal (LPA), and the said LPA
was also dismissed.
(d) Against the said orders, the Department filed a
civil appeal before Hon'ble the Apex Court, in which
the following specific issue was framed:-
" (a) Whether a Gramin Dak Sewak (GDS) is
an "employee" as per Section 2(e) of the Act
1972 and is entitled to payment of Gratuity
under this Act?
(b) Whether a Gramin Dak Sewak (GDS) is
eligible for payment of gratuity under
the 2011 Rules upon voluntary
resignation?"
(e) The Court while deciding the issue explicitly held
that the Indian Post Office Act, 1898 falls under the
expression 'law' in Section 1(3)(b). Consequently, the
Post & Telegraphs Department would be an
establishment under the 1972 Act.
(f) It was further held that "A Gramin Dak Sewak
(GDS) is not an "employee" under the 1972 Act.
(g)However, the next question before Hon'ble the
Apex Court was that even if the workman did not fall
within the ambit of term "employee" under the Act
1972, will he still be eligible for the payment of
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gratuity as provided under the Gramin Dak Sewaks
(Conduct and Engagement) Rules, 2O11 (herein after
referred to as "2011 Rules"). While deciding the said
issue, Hon'ble the Apex Court held that as the
workman had voluntarily resigned, thus, in
consonance with the Rule 6(13) of 2011 Rules, he is
not eligible for payment of gratuity even under the
said rules.
(h)For the purpose of applying the 1972 Act, Court
held that the employee should be working for an
'establishment' for the purpose of claiming gratuity
amount under the 1972 Act and Post Office falls
within the ambit of term 'establishment' under the Act.
(i)Hon'ble the Apex Court also observed that GDSs
are extra departmental agents and are outside the civil
service of the Union and thus, cannot claim to be at
par with the Central Government Employees. They are
engaged (not appointed) to catch up the postal
requirements in the rural and remote areas. Services
are availed from the school masters, shopkeepers,
landlords and such other villagers to provide them
adequate means of livelihood and simultaneously,
seeking assistance for the department on a part time
basis. Finding recorded to that effect in paragraph
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No.10.1 of the said judgment is also reproduced
herebelow:
"10.1. The 2011 Rules provide that Gramin
Dak Sewaks are Extra-Departmental Agents,
who are outside the Civil Service of the
Union, and shall not claim to be at par with
the Central Government Employees. The Ex-
tra-Departmental Agents are engaged by the
Department of Posts & Telegraphs to cater to
the postal requirements in the rural and re-
mote areas. The system avails the services of
schoolmasters, shopkeepers, landlords, and
such other persons in a village who have a
reasonable standard of literacy, and adequate
means of livelihood, and can therefore assist
the Department on a part-time basis by way
of gainful avocation, to provide service to the
rural communities for their postal require-
ments.
Rule 3-A(i) of the 2011 Rules provides that
the Gramin Dak Sewaks shall not be required
to perform duties beyond a maximum period
of 5 hours a day. This shows the avocational
nature of the service.
Rule 6(1) of the 2011 Rules provides for pay-
ment of gratuity to Gramin Dak Sewaks.
However, Rule 6(13) states that no Gratuity is
payable if an Extra-Departmental Agent quits
the agency on his own."
12. For the sake of convenience, the terms and conditions of en-
gagement of Gramin Dak Sewak (GDS) are reproduced herebelow:
"3-A Terms and Conditions of Engagement
(i) A Sevak shall not be required to perform duty be-
yond a maximum Period of 5 hours in a day;
(ii) A Sevak shall not be retained beyond 65 years of
age;
(iii) A Sevak shall have to give an undertaking that he
has other sources of income besides the allowances
paid or to be paid by the Government for adequate
means of livelihood for himself and his family;
(iv) A Sevak can be transferred from one post/unit to
another post/unit in public interest;
(v) A Sevak shall be outside the Civil Service of the
Union;
(vi) A Sevak shall not claim to be at par with the Cen-
tral Government employees;
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(vii) Residence in post village/delivery jurisdiction of
the Post Office within one month after selection but
before engagement shall be mandatory for a Sevak;:;
Failure to reside in place of duty for GDS BPM &
within delivery jurisdiction of the Post Office for other
categories of Gramin Dak Sevaks after engagement
shall be treated as violative of conditions of engage-
ment and liable for disciplinary action under Rule 10
of the Conduct rules, requiring removal/dismissal;
(viii) Post Office shall be located in the accommoda-
tion to be provided by Gramin Dak Sevak Branch
Postmaster suitable for use as Post Office premises;
(ix) Combination of duties of a Sevak shall be permis-
sible;"
Rule 6(1) and (13) of the 2011 rules providing for Pay-
ment of ex-gratia gratuity are also reproduced hereinbelow:
"(1) Payment of ex-gratia gratuity. - The question of
grant of some kind of purely ex gratia monetary grant
to ED Agents working in the Indian Posts and Tele-
graphs Department on termination of their services
has been under consideration for a long time. It has
been decided as follows :-
1. ED Agents as defined in P & T Extra Departmental
Agents (Conduct and Service) Rules, 1964, whose ser-
vices are terminated otherwise than (i) for unsatisfac-
tory word or (ii) as a measure of disciplinary action or
(iii) in consequence of their being appointed in a regu-
lar post under the P & T Department, may be sanc-
tioned monetary grants termed as 'Gratuity', provided
that they have put in not less than ten years of continu-
ous satisfactory service as Ed Agents."
"(13) No gratuity to ED Agent who quits the agency
on his own. - The question of extending the benefit of
grant of ex gratia gratuity to ED Agents who have to
resign on account of circumstances beyond their con-
trol was taken up with the Ministry of finance. It has
been decided that no ex gratia aratuitu will be paid to
ED Agents in such cases. It is, therefore, clarified that
according to the present orders, gratuity is payable
only if the services of an ED Agent are terminated in
consequence of an action of the department, subject to
their fulfillment of the other prescribed conditions and
that no gratuity is payable if an ED Agent quits the
agency on his own. The services of an ED Agent
should not be terminated when he himself quits the
job. In such cases, an order permitting the ED Agent
to quit the services on his own should be issued so that
the order may not be construed a.s an order of termi-
nation of service."
13. Thus, broadly, as per the dictum of the Hon'ble the Supreme
Court, services of Gramin Dak Sewaks (GDSs) are governed by
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GDS's (Conduct and Engagement) Rules, 2011 and they are entitled
to claim gratuity under Rule 6 (1) of the Rules, 2011 and not under the
Payment of Gratuity Act, 1972.
14. Thus, following the dictum of the Hon'ble the Apex Court in
Senior Superintendent of Post Offices (supra), this Court is of the
view that all the writ petitions filed by the petitioner are worth to be
allowed. Accordingly, the writ petitions are allowed and the im-
pugned order passed by the Controlling Authority and the order of dis-
missal of Appeal by the Appellate Authority under the Act of 1972,
are hereby quashed/set aside.
However, before parting with the judgment, it is clarified
that it would be open for the Respondent No.1(in all the writ petitions)
to seek their remedy for claiming "so called gratuity" in accordance
with Rule (1) of the Rules, 2011, to substantiate the right, if any.
[SANJAY VASHISTH]
20.03.2024 JUDGE
rashmi
Whether speaking/reasoned yes
Whether reportable? yes
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