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2007 DIGILAW 477 (DEL)

D. T. C. v. RICHPAL SINGH

2007-03-05

HIMA KOHLI

body2007
HIMA KOHLI, J. ( 1 ) AS the facts of both the writ petitions are similar, the petitions are taken up for hearing and final disposal at the admission stage itself by this common order. For the sake of convenience the facts of W. P. (C) 7396/2005 are taken note of. ( 2 ) THIS writ petition has been filed by the petitioner assailing the order dated July 9, 2004 passed by the Controlling Authority under the payment of Gratuity Act, 1972, directing the petitioner to pay a sum of Rs. 2575. 80 to the respondent No. 1 as additional gratuity with simple interest @ 10% per annum from October 30, 1991 to the actual date of payment, within 30 days of receipt of the aforesaid order. Notice was issued to the respondent in the writ petition. Appearance was entered on behalf of respondent no. 1 on August 30, 2005 and time taken to file a reply. Thereafter, none has appeared for respondent No. 1, nor has any reply been filed. ( 3 ) THE brief facts relevant for disposing of this writ petition are that the respondent No. 1 was appointed as a Traffic Inspector with the petitioner/management on November 18, 1960. He was superannuated on September 30, 1991 after rendering service of 30 years and 10 months. At the relevant time, the petitioner paid the respondent No. 1 gratuity to the tune of Rs. 43,209/- on the basis of the last drawn salary of the respondent, which was Rs. 2,560/ -. ( 4 ) AFTER lapse of a period of around 10 years, the respondent No. 1 filed an application tinder Sub-rule (1) of Rule 7 of the Payment of gratuity Act, 1972 before the Controlling authority for determining the amount of gratuity payable to him. In the annexure attached to the said application, the respondent no. 1 claimed that as against a sum of Rs. 45,785/-, due and payable by the petitioner to the respondent, the respondent has received only a sum of Rs. 24,800/ -. In the annexure attached to the said application, the respondent no. 1 claimed that as against a sum of Rs. 45,785/-, due and payable by the petitioner to the respondent, the respondent has received only a sum of Rs. 24,800/ -. Along with the aforesaid application filed under Sub-rule (1) of rule 7 of the Payment of Gratuity Act, 1972, the respondent also filed an application for condonation of delay stating inter alia that neither was he aware of gratuity rules and regulations applicable to the petitioner/ management, nor was any copy of the service rules furnished by the petitioner to him, he came to know about the same only in the month of december, 2001, and immediately thereafter he preferred the accompanying application. ( 5 ) NOTICE was issued on the aforesaid application to the petitioner/management who filed their reply to the said application as also to the application for condonation of delay filed by the respondent. On merits, it was denied that any amount whatsoever was due or payable to the respondent, as the petitioner had already paid a sum of Rs. 43,209. 20 to the respondent as per the rules and regulations of the DTC. It was also stated that the respondent/workman was in fact entitled to Rs. 42,240/-, but he was inadvertently paid an amount of Rs. 969 /- in excess and, thus, nothing further was due or payable to the respondent/workman. The calculations made by the petitioner for disbursing the gratuity amount to the respondent were detailed in para 4 of the reply, which is reproduced hereinbelow: "4. That it is denied that the amount of gratuity payable to the workman is Rs. 45,785/ -. It is further denied that amount paid to the workman is Rs. 24,800/ -. It is submitted that the qualifying service of the workman for the payment of gratuity is 30 years 9 months and 1 day. It is submitted that the gratuity calculated and paid to the workman as per rules and regulations is as under; (I) 2560 x 30 x 15 = Rs 45,785/-26 (ii) 2560 x 33 = Rs. 42,240/-2 whichever is less. " ( 6 ) THE parties were directed to adduce evidence by way of affidavits. It was held by the controlling Authority that the respondent had received an amount of Rs. 43,209. 20 from the petitioner and not Rs. 24,800/- as claimed by him. 42,240/-2 whichever is less. " ( 6 ) THE parties were directed to adduce evidence by way of affidavits. It was held by the controlling Authority that the respondent had received an amount of Rs. 43,209. 20 from the petitioner and not Rs. 24,800/- as claimed by him. Thereafter, without any further discussion in the impugned award, the Controlling authority held that the respondent was entitled to a balance amount of Rs. 2575. 80 as additional gratuity payment and, thus, it was directed that the said amount be paid to the respondent with simple interest @ 10% per annum from October 30, 1991 to the actual date of payment. ( 7 ) AGGRIEVED by the aforementioned order, the petitioner has filed the present writ petition wherein it has taken a categorical stand that the respondent is not covered by the payment of Gratuity Act, 1972 in view of the fact that his last drawn wages were Rs. 2,560/ -. In this regard the petitioner has relied on the office Memorandum dated June 23, 1988 issued by the Department of Public Enterprises (Bureau of Public Enterprises), Ministry of industry, Government of India on the subject of death-cum-retirement gratuity scheme for employees of public sector enterprises. The relevant para of the aforesaid Office memorandum states as below: "4 (a) Gratuity will be equal to 15/26 days' emoluments for each completed year of service or part thereof in excess of six months subject to a maximum of 16 times the emoluments or Rs. 1,00,000/- whichever be less. " ( 8 ) THUS, it is submitted that in accordance with the aforesaid Office Memorandum dated june 23, 1988 the gratuity payable to the respondent No. 1 was governed by the rules and regulations of the petitioner and that the payment of Gratuity Act, 1972 was not applicable to the respondent at all. ( 9 ) IT is further submitted that in any case, the application filed by the respondent No. 1 after a lapse of more than 10 years from his superannuation is misconceived and barred on the ground of delay and laches alone. ( 9 ) IT is further submitted that in any case, the application filed by the respondent No. 1 after a lapse of more than 10 years from his superannuation is misconceived and barred on the ground of delay and laches alone. It is also submitted that no sufficient cause was shown by the respondent so as to permit such an application to be entertained at such a belated stage and despite opposition by the petitioner to entertain such a belated application, no order thereon was passed by the Controlling authority, before proceeding to deal with the matter on merits. ( 10 ) ATTENTION of this Court has been drawn to Section 7 of the Payment of Gratuity Act, 1972 which relates to determination of the amount of gratuity and specifies that a written application shall be sent by a person eligible for payment of gratuity under the Act within such time and, in such form, as may be prescribed, for payment of such gratuity. The provisions of Rule 7 of the Act have been referred to by the petitioner which deals with the procedure for filing an application to the Controlling Authority for directions. The said provision stipulates that a claimant/employee may apply to the Controlling authority within 90 days or the occurrence of the cause of action for issuing directions under sub-section (4) of Section 7 of the Act, by way of an application in Form 'n' which further provides that the Controlling Authority may accept any application under the sub-rule, on sufficient cause being shown by the applicant, even after expiry of the specified period. ( 11 ) A perusal of the impugned order, undoubtedly, reflects that the Controlling authority has not passed any order or made any observation with respect to the application for condonation of delay filed by the respondent no. 1, which apparently remained pending. Nor was the objection, as raised by the petitioner/management with regard to the delay and laches in filing the aforesaid application, been dealt with by the Controlling Authority. It may be noted here that ignorance of law is no excuse and cannot be considered a just or sufficient cause for entertaining such an application and that too ten years after the respondent received the gratuity amount. This factor was completely overlooked while passing the impugned order. It may be noted here that ignorance of law is no excuse and cannot be considered a just or sufficient cause for entertaining such an application and that too ten years after the respondent received the gratuity amount. This factor was completely overlooked while passing the impugned order. ( 12 ) EVEN otherwise, the impugned order has been passed on the premise that the respondent No. 1 was covered under the payment of Gratuity Act, 1972 whereas the respondent was getting monthly salary of more than Rs. 2,500/- per month and therefore his case was covered by the Office Memorandum dated june 23, 1988 referred to hereinabove. Attention of this Court has also been drawn to the Office order dated June 6, 1991, circulated pursuant to the meeting of the DTC Board held on May 30, 1991, wherein it was resolved as below: "the employees of the Corporation whose wages does not exceed Rs. 2,500/- p. m. as provided in the Payment of Gratuity Act, 1972 be paid gratuity in accordance with the said Act. And, in respect of the other employees whose wages exceeds Rs. 2,500/- p. m. gratuity should be paid in accordance with the instructions contained in (Annexure D') of the BPE's O. M. dated june 23, 1988 which envisages the provisions that the gratuity will be equal to 15/26 days emoluments for each completed year of service or part thereof in excess of six months subject to maximum of 16 times the emoluments or Rs. 1,00,000/-whichever is less. Annexure of BPE's letter dated June 23, 1988 is enclosed. " ( 13 ) IN terms of the aforesaid resolution, which was given effect to retrospectively from january 1, 1986, it was decided that the employees of the Corporation whose wages did not exceed Rs. 2,500/- per month, shall be paid gratuity in accordance with the Act. However, in respect of the other employees whose wages exceed Rs. 2,500/- per month, gratuity shall be paid in accordance with the instructions contained in the Office Memorandum dated june 23, 1988, issued by the Bureau of Public enterprises. By making the calculations for payment of gratuity under the aforesaid Office order dated June 16, 1991, which was also applicable to the respondent who retired on september 30, 1991, the entire amount, as payable by the petitioner, was admittedly paid to the respondent No. 1. By making the calculations for payment of gratuity under the aforesaid Office order dated June 16, 1991, which was also applicable to the respondent who retired on september 30, 1991, the entire amount, as payable by the petitioner, was admittedly paid to the respondent No. 1. In fact, the calculation as contained in Para 4 of the reply to the application, filed by the respondent before the controlling Authority, has been made on the basis of the aforesaid Office Memorandum dated june 23, 1988 as is apparent from a perusal of the said para 4, reproduced hereinabove. ( 14 ) IN the aforesaid facts and circumstances, it is apparent that the respondent no. 1 whose last drawn wages were Rs. 2,560/-, was not covered by the Payment of Gratuity Act, but by the Office Memorandum dated June 23, 1988, issued by the Bureau of Public Enterprises and adopted by a resolution of the DTC Board dated May 30, 1991, with reference to payment of gratuity to the employees of the Corporation. Hence, nothing further was payable by the petitioner to the respondent No. 1. ( 15 ) IN terms of the aforesaid order, the writ petition is allowed. The impugned order dated july 9, 2004 is quashed ana set aside. ( 16 ) THE petitioner is at liberty to withdraw the difference in the gratuity amount directed to be deposited in Court, vide order dated April 28, 2005, along with interest, if any accrued thereon, through counsel. No orders as to costs.